Thursday, June 21, 2018

Supreme Court Lets States Force Online Retailers to Collect Sales Tax

South Dakota v. Wayfair (argued April 17th, 2018): This is another Case that asks the Supreme Court to Overturn its longstanding Precedent, a 26-year-old Decision holding that the Constitution Prohibits the States from Imposing a Sales Tax on Out-of-State Retailers that do not have a Brick-and-Mortar Presence, Warehouse, or Sales Operation with Sales Representatives in the State. Two years ago, South Dakota Passed a Law that required Retailers to Collect Sales Taxes of 4.5% if they have at least Annually $100,000 in Sales or 200 Transactions in the State, even if they do not have a Store or Warehouse there.

The State argues that, with the Explosion of Sales made over the Internet, times have changed since the Court issued its Ruling in 1992, and the question whether a Retailer has a Connection to the State, a Key Issue in assessing the Constitutionality of the Tax, shouldn’t hinge on whether the Retailer has a Physical Presence there.

I took part in the 1992 Quill Case.

States have Broad Authority to Force Online Retailers to Collect potentially Billions of Dollars worth of Sales Taxes, the U.S. Supreme Court Ruled on Thursday, siding with South Dakota in its high-profile Fight with E-Commerce Companies.

The Justices, in a 5-4 ruling against Wayfair Inc(W.N), Inc(OSTK.O), and Newegg Inc, Overturned a 1992 Supreme Court Precedent in Quill that had Barred States from requiring Businesses with No "Physical Presence" in that State, like Out-of-State Online Retailers, to Collect Sales Taxes.

More than 40 States and the Trump Administration asked the Supreme Court to Overturn its 1992 Decision in Quill v. North Dakota.

Justice Anthony M. Kennedy, who wrote Thursday’s Majority Decision, had earlier called for the Court to Reconsider the Decision. Kennedy wrote that dramatic Technological Changes had made the Court’s previous Ruling Obsolete, and that it Unfairly Disadvantaged Traditional Brick and Mortar Stores. “A virtual showroom can show far more inventory, in far more detail, and with greater opportunities for consumer and seller interaction than might be possible for local stores,” Kennedy wrote.

“Yet the continuous and pervasive virtual presence of retailers today is, under Quill simply irrelevant. This court should not maintain a rule that ignores these substantial virtual connections to the state.” He was joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr., and Neil M. Gorsuch.

Chief Justice John G. Roberts Jr. wrote the Dissent. He said the Court should not be doing the work of Congress, even if its earlier Precedents are open to Question. “E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule,” he wrote.

“Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress. The court should not act on this important question of current economic policy, solely to expiate a mistake it made over 50 years ago.”

NYC Wins When Everyone Can Vote! Michael H. Drucker
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Native American Right to Vote Under Attack

With more Voters Casting Ballots from their Homes, Arizona is offering Fewer Opportunities for People to Cast Ballots in Person.

That’s a problem for Native Americans, who say they enjoy the Communal Aspects of Voting on Election Day and sometimes need their Ballots Translated In-Person into Non-Written Native languages.

It also makes Voting nearly Impossible for People who can’t Receive Mail to their Homes and instead Share PO Boxes Miles Away, sometimes in a different County or even State, and who Check their Mail Infrequently.

A lot of Elders feel Passionate about Voting, but they’re not always in the Condition or Position or have the Ability to bring Themselves in to a Polling Place to Drop Off their Ballot or even to the Post Office to Mail it at the Appropriate Time.

The Mail-In Ballot is just one of many ways that Voting, a Constitutional Right, is Harder if you’re Native American. While Voting has never been easy for People living on Reservations, in many ways it’s become even more Difficult in recent years, as States and the Federal Government turn their back to the Problems.

Some States aren’t just ignoring the Barriers to the Ballot, they’re Actively making them Worse.

In 2016, Arizona’s Republican-controlled Legislature passed a Law Banning “Ballot Harvesting”, a term Conservatives Coined to refer to the Act of Mailing a Ballot that’s not your own.

NYC Wins When Everyone Can Vote! Michael H. Drucker
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Wednesday, June 20, 2018

Trump Repeals National Ocean Policy Opening Seas to More Industrial Uses

On Tuesday, Trump Signed an Executive Order Repealing Protections for the Oceans and Great Lakes. Trump’s Executive Order gives Priority to Ocean Industry and particularly Oil and Natural Gas Drilling. The Order Encourages more Drilling and other Industrial Uses of the Oceans and Great Lakes.

This follows Executive Orders that Trump has already issued which Destroyed the Stream Protection Rule, allowing Coal Mines to Dump Waste into Streams and Rivers. Trump has Removed Funding for Environmental Programs that Protect the Great Lakes and Chesapeake Bay in every one of his Budgets. For 2019, Trump’s Budget would remove All Funding for the Gulf of Mexico, San Francisco Bay, the Everglades, And Long Island Sound.

And that’s just the start of a Long List. After cutting 100% of Funding for the Great Lakes in his first Proposed Budget, Trump has compromised this year, cutting it by 90%.

All of this goes on top of suspending the Waters of the United States Rule, which Protected Large Lakes, Wetlands and the Streams that Fed them. That Change, made back in January, Removed the Primary Means of Protection from about 60% of the Waters in the Country. Trump has systematically Removed Environmental Protection from every Pond, Stream, River, Lake, Great Lake, Bay, Gulf, and Sea Shore that touches the United States, as well as Protection for the Oceans beyond our Borders. He’s pressing for the “industrial use” of the Ocean at a time when the Weight of Plastics in the Seas threatens to Outweigh that of All Fish, and Thousands of Oil and Gas Wells are being Drilled on Land across the Nation. After all this, Trump still insists that he Supports “Clean, Clean Water” but, where does he think that Water comes from?

The Policy that Trump Revoked on the Oceans on Tuesday was written by President Obama following the BP Oil Disaster in 2010. It was Designed to Protect against similar occurrences, and Established a Commission to Review Policy and Projects that impacted the Ocean and Great Lakes. Trump’s Executive Order Rescinds that Policy and Abolishes the Council. The Action is getting Cheers from Republicans.

Rob Bishop: President Trump’s Action will Help the Health of our Oceans and ensure Local Communities impacted by Ocean Policy have a Seat at the Table. That touching Statement comes from the Republican Chairman of the House Natural Resources Committee. However, Bishop is a Representative from Utah, which is Home to many Oil and Gas related Companies, but notably lacking in Sea Coast.

The Statement that he’s making is just a Variant of what’s been in each of Trump’s Statement that the “Regional” issues of Water Quality are best “left to local communities.” Communities that have No Authority to Regulate many Threats to Water Quality, and certainly don’t have the Power to Stop the Industrialization of the Oceans. Trump has managed to do what he always does: Take a bad situation, and find the way to push it into Disaster.

NYC Wins When Everyone Can Vote! Michael H. Drucker
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Islip NY Faces Section 2 Voting Rights Act Challenge

A Lawsuit filed in Federal Court alleges that the At-Large Voting System of the Town of Islip Violates the Voting Rights Act by systematically preventing Members of Islip’s Latino Community from Electing Candidates of their Choice to the Islip Town Board, despite the Strength that the Latino Community would have as a Voting Bloc under a System of Single-Member Districts. Attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP, the Law Offices of Frederick K. Brewington, and Newman Ferrara LLP, filed the Lawsuit on behalf of Ana Flores, Rene Flores, María Magdalena Hernández, Magali Roman, Make the Road New York, and New York Communities for Change against the Town of Islip, the Islip Town Board, and the Suffolk County Board of Elections.

The Plaintiffs allege that the Town’s At-Large Voting System should be Replaced with Single-Member Districts because, under the current system, the Town Board has been Unresponsive to the needs of the Latino Community and repeatedly Failed to afford Islip’s Latino Residents the same Rights and Services that it provides to more Affluent White Communities. For example:

● The Department of Public Works ignores requests to repair potholes, traffic lights, and stop signs in Latino neighborhoods

● The Town fails to provide proper public services (such as street cleaning, garbage pickup and snowplowing) on an ongoing basis in the Latino community, while ensuring that white communities are given priority access to these same services

● The Town has repeatedly failed to provide translation and interpretation services to Spanish-speaking residents

● Latino residents are often met with hostility or indifference when they ask local law enforcement and municipal services for help

“The Town handles complaints from our neighborhoods differently than it handles complaints from other parts of Islip,” said Magali Roman, a plaintiff in the case. “When people in the Latino community call to report streets that need to be repaired, the Town does not respond to us. When these problems are not fixed, accidents happen, people’s cars break down. They might miss work and lose their jobs, or they might be hurt. These problems start out small, but because the Town neglects them, they grow and have big consequences.”

Although Latinos make up approximately One-Third of the Town’s Population, No Latino has ever been Elected to the Islip Town Board. Further, in the last Three Decades, only One of the 30 Residences belonging to Elected Town Board Members was located in the Latino Community; the Single Residence located in a Latino Community belonged to a Republican Town Board Member who owned Three Residences.

The Plaintiffs allege that Islip’s Latino Residents are a Politically cohesive Community that has demonstrated the Ability to Elect Candidates of their choice when an At-Large system does not Dilute their Votes, and has succeeded in Electing Latino Candidates to County and State Legislature Seats.

Currently, all Islip Residents Vote for each Town Board Position, meaning that the same Majority can Control the Outcome of the Race for each Town Board Seat. As a result, Islip’s Latino Community has little chance of Electing any Candidate of its choice. The Plaintiffs argue that the current At-Large System should be Replaced by a Single-Member system, in which the Town would be Divided into Separate Districts with One Council Member representing each District, as is the Case in Long Island Towns such as Hempstead, North Hempstead, and Brookhaven. In support of their Argument for a District-Based system, the Plaintiffs highlight the Roberto Clemente Park Dumping Incident as an example of the Town’s Neglect of the Latino Community.

In 2013, Two Politically connected Companies began Dumping Tens of Thousands of Tons of Toxic Waste, including Asbestos, into the Park located in the Heart of Islip’s Predominantly Latino Neighborhood, Brentwood. Town Officials knew of the Dumping at the time. Rather than Alerting Law Enforcement and the Community of this Illegal and Dangerous Activity, they Concealed Evidence that the Dumping had occurred. These Town Officials were later Criminally Charged and Pled Guilty.

The Town’s Discriminatory Zoning and Land Use Practices have also Permitted the Industrialization of large Tracts of Central Islip and Brentwood, often in close proximity to Residential Developments, which has impacted the Health of Latino Residents. Brentwood and Central Islip are Home to a disproportionate number of Environmental Hazard and Waste Sites, including Superfund Sites, that are located right inside Residential areas; these Sites are not well-maintained, posing serious Risks of Contamination of Water Sources and other Community Resources. As recently as 2015, the Town Disregarded the Health and Safety of Brentwood Residents by Fast-Tracking Approvals for the establishment of a Scrap Metal Recycling Facility and Metal Shredder near a Neighborhood, despite Opposition from the Suffolk County Planning Commission and the Community.

The Plaintiffs also allege that the At-Large system preserves an Unjustifiable, Bloated, Corrupt Political system that currently goes Unchecked and allows Elected Officials from Predominantly White Communities remain in Power. “In 1988, then-Supervisor Frank Jones said the representation of the Latino community in the Town was ‘not in proportion to the influential numbers growing in the in the community. We need to do more,’” said Fred Brewington, The Law Offices of Frederick K. Brewington. “Since then, the Town has done absolutely nothing to remedy this situation and has turned its back on its Latino residents.”

“By filing this lawsuit, the Latino residents of the Town of Islip are making it clear that they will no longer be relegated to second-class status,” said Greg Laufer, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP. “For the past three decades, the democratic process has been manipulated to maintain the one-party rule that perpetuated political corruption and the inequitable distribution of the Town’s resources.”

NYC Wins When Everyone Can Vote! Michael H. Drucker
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Supreme Court Argued Cases for Opinions to be Issued

The Supreme Court Justices are expected to take the Bench on Thursday, June 21th, to issue Opinions in Argued Cases.

South Dakota v. Wayfair (argued April 17th, 2018): This is another Case that asks the Supreme Court to Overturn its longstanding Precedent, a 26-year-old Decision holding that the Constitution Prohibits the States from Imposing a Sales Tax on Out-of-State Retailers that do not have a Brick-and-Mortar Presence, Warehouse, or Sales Operation with Sales Representatives in the State. Two years ago, South Dakota Passed a Law that required Retailers to Collect Sales Taxes if they have at least $100,000 in Sales or 200 Transactions in the State, even if they do not have a Store or Warehouse there. The State argues that, with the Explosion of Sales made over the Internet, times have changed since the Court issued its ruling in 1992, and the question whether a Retailer has a Connection to the State (a key issue in assessing the constitutionality of the tax) shouldn’t hinge on whether the Retailer has a Physical Presence there. There are still Seven Decisions left (out of 12) from April, when the case was argued, so it is almost impossible to predict who might be Writing this Opinion. I took part in the 1992 Quill Case.

Abbott v. Perez (argued April 24th, 2018): This Case involves allegations of Racial Gerrymandering, that Texas Lawmakers Drew Federal Congressional and State Legislative Districts that harmed Black and Hispanic Residents there. It began as a Challenge to Maps Drawn by the State’s Republican-controlled Legislature in 2011. In 2012, a Federal District Court drew New Maps for the Election that Year; the State Legislature Adopted those Maps the following year. Last year the District Court Invalidated Parts of the 2013 Plans, on the Ground that they Perpetuated Discrimination in the 2011 Plan, and the Supreme Court agreed to weigh in. Before the Justices can Reach the Merits of the Case, though, they must determine whether they have the Authority to hear it at all, when the District Court did not either Issue or Deny an Injunction, a Requirement before the Supreme Court can Review Appeals from a Three-Judge District Court. If the Justices do reach the Merits, they then must decide whether the State could have been Discriminating against Minority Voters when it was simply using the Maps that the District Court had Ordered it to Use.

Trump v. Hawaii (argued April 25th, 2018): This is the Challenge to President Trump’s September 2017 Order, which Limited Travel to the United States by Citizens of Eight Countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela, and Chad. Like the two similar Orders that preceded it, the September 2017 Order Drew immediate Legal Challenges. The State of Hawaii has Two Main Arguments. First, it says, although the President has Broad Power over Immigration, the Order goes too Far. Second, it contends that the Order Violates the Constitution’s Establishment Clause, which Bars the Government from, among other things, favoring One Religion over Another. The State points to the Two earlier Versions of the Order, which targeted Muslim Countries, as well as Comments and Tweets made by the President calling for a Ban on the Entry of Muslims into the United States. The White House has said those Comments and Tweets are Official Administration Text and Speech.

NYC Wins When Everyone Can Vote! Michael H. Drucker
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AG's Sue Over Trump Health Plans Skirting ObamaCare Requirements

New York and Massachusetts will Sue the Trump Administration over its Expansion of Health Insurance Plans that don't meet All of ObamaCare's Requirements. New York Attorney General Barbara Underwood (D) and Massachusetts Attorney General Maura Healey (D) argue the Expansion of Association Health Plans will "invite fraud, mismanagement and deception."

"We will sue to safeguard the protections under the Affordable Care Act and ensure that all families and small businesses have access to quality, affordable health care," the Attorneys General said in a Statement Wednesday. "We believe the rule, as proposed, is unlawful and would lead to fewer critical consumer health protections."

The Administration finalized a Rule Tuesday expanding the Plans, which allow Small Businesses and other Groups to Band together to Buy Health Insurance. The move is part of a Broader Trump Administration effort to Expand Access to Cheaper Plans as an Alternative to ObamaCare Plans.

The Plans are Cheaper because they are Not Required to cover ObamaCare's 10 Essential Benefits, which include Hospitalization, Maternity Care, and Prescription Drug Coverage.

Democrats strongly Oppose the Expansion of Association Health Plans, calling them "Junk" Insurance that will not meet People's needs and will cause Premiums to Rise for those Remaining in ObamaCare Plans, once some Healthier People are siphoned off into the New Plans.

Administration officials say these so-called Association Health Plans, or AHPs, will provide a more Affordable Option for Americans who don’t get Health Coverage through an Employer or a Government Health Program such as Medicare or Medicaid. AHPs promote the Sale of Skimpier Health Insurance, finalizing a New Rule that would make it easier for Individuals and Small Businesses to Band together to get Plans that don’t offer a Full Set of Health Benefits.

The Congressional Budget Office (CBO) estimates that 4 Million People could Join the New Association Health Plans, based on the Proposed Regulation offered in January. As a result of these New Plans, and a separate Trump Administration Proposal to Open up other Options known as Short-Term Plans, Premiums for People remaining in the ObamaCare Market will Rise 2% to 3%, the CBO estimated.

NYC Wins When Everyone Can Vote! Michael H. Drucker
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Native American Tribes Win Big at Supreme Court

An Eight Justice Supreme Court just decided a Major Indian Law Case by not Deciding it.

The Justices split 4-4 and issued a Per Curiam Decision on behalf of the Court that doesn’t specify how Each Justice Voted. Any time the Court Splits, the Lower Court’s Decision Stands.

The Litigation in question surrounds the Salmon Rights of 21 Northwest Indian Tribes who, along with the Federal Government, Sued the State of Washington to Replace nearly 1,000 Culverts. The Case began under the Ninth Circuit Court of Appeals in the 1970s, that’s why Justice Anthony Kennedy, then on that Court, had to Recuse himself.

It’s a modern twist on an Issue that Dates to the 1850s: From Tribes’ Right to Fish Salmon, established in the Stevens Treaties, we arrive at Tribes’ Right to keep the State from taking Actions that Impede the Salmon that Tribes have a Right to Fish. Here that means Washington has to Replace Culverts that have Degraded Fish Habitats and Reduced Fish Populations.

Washington Indian Law and Water Rights Attorney J. Nathanael Watson explains the immediate implications:

This Decision could Impact more than just Washington’s Culverts, including, potentially, a variety of Development, Construction, and Farming Practices throughout the Northwest.

Parties from Developers to Municipalities to States themselves, as here, cannot rely on Authorizations that Predate this Decision when it comes to Activities that could significantly affect Fish Populations. They’re going to have to Engage Tribes. Ideally, Tribes won’t have to Litigate, and the Parties will be able to reach the most Efficient Resolution without Litigation. But it’s a Major Coup to have a Legal Avenue of Recourse if Negotiation Fails or Cooperation Falters.

Moreover, Tribes now have reason to examine other Treaty Rights in Relation to State and Private Actions, and not just surrounding the Rights to Fish and Hunt.

Professor Monte Mills, of the University of Montana, has Speculated that this Outcome could have Implications for diverse Tribal movements, like those to Preserve Bears Ears and Fight the Dakota Access Pipeline. At a minimum, we can hope Governments and Corporations alike will get the Message that the Supreme Court may be more Receptive to a Modern, and Protective, orientation toward Tribal Rights than anticipated.

NYC Wins When Everyone Can Vote! Michael H. Drucker
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