HLPR Blog: Notice and Comment

By Taylor Holden*

The Trump administration recently rolled back federal requirements that employers include birth control coverage in their health insurance plans, significantly expanding exemptions for corporations that cite moral or religious objections at the expense of the health of hundreds of thousands—if not millions—of women.

This new policy is the latest in a long series of attempts to gut the Affordable Care Act, in order to pander to a small, vocal, and fringe part of the American electorate. It goes far beyond the reasonable accommodations established by the Obama administration for religious exemptions and expands on those established in Burwell v. Hobby Lobby.

Burwell v. Hobby Lobby, in a landmark 5-4 decision, struck a blow against access to preventive care while expanding the notion of corporate personhood and the scope of religious liberty. It provided more leeway for corporations to challenge laws they claim violate their religious liberty. Justice Samuel A. Alito Jr., writing for the majority, played down the scope of the decision, arguing that it applied only to closely held religious for-profit corporations.

Justice Ruth Bader Ginsburg argued in her dissent that the decision constituted a radical expansion of corporate rights, not exclusively bound to closely held religious for-profit corporations or even cases relating to contraceptive coverage.

At this time, it seems, she was right.

The Trump administration’s decision to roll back contraceptive coverage requirements for employers now expands religious exemptions to nonprofit organizations, for-profit companies that voice religious objections, publicly traded corporations, and higher education institutions, which threatens contraceptive coverage for students and staff covered by university health plans. A second rule, opaque by design, extends an exemption to organizations and privately held companies that have “moral objections.”

Furthermore, this new policy undermines a crucial Obama-era accommodation, which allowed religious entities like churches and convents to opt out of providing contraceptive coverage to employees on the condition that they file a document certifying their objection to the contraceptive coverage mandate with their insurer and the government. Following this filing, contraception would be provided by the insurer and the insurer would be reimbursed by the government. Trump’s new policy makes that accommodation optional, which means this newly expanded pool of employers and institutions claiming moral or religious objections to covering birth control now have no responsibility to make sure employees and students receive this coverage elsewhere.

And the wholly unsurprising kicker: The Trump administration imposed these new regulations without even understanding the extent of their implications.

The Department of Health and Human Services provided briefing memos to The Washington Post stating that the new policy “will result in some persons covered in plans of newly exempt entities not receiving coverage or payments for contraceptive services.” However, it also says there is not “sufficient data to determine the actual effect . . . on plan participants and beneficiaries, including for costs they may incur for contraceptive coverage, nor of unintended pregnancies that may occur.”

Yet here we are.

Short of building a time machine and going back to a time before we were all through the looking glass, there are three possible fixes here.

The first option is, of course, litigation, which has already begun in earnest on the grounds that this new policy is unconstitutional and unlawfully targets women. The second and third options are that Congress can require insurance companies to pay for contraceptive coverage, or require states or the federal government to step in to pay for the contraceptive coverage lost under this new policy. Unfortunately neither of these latter options appear to be viable, considering:

• The Trump administration’s decision to make Obama-era accommodations that require insurers to cover birth control optional rather than mandatory,
• The historic dysfunction of this particular Congress and administration, and
• The hostility toward women that the Republican Party is enthusiastically attempting to codify into various laws that disproportionately impact women, like employer-covered contraceptive coverage, abortion access, insurance premiums associated with pregnancy and sexual assault, and others.

But I digress.

This new policy is devastating for women’s health and freedom, and that it’s so deeply tied to subjective religious and moral objections means it paves the way not only for workplace discrimination against women but for discrimination against LGBTQ and genderqueer people as well. They, too, need and deserve access to contraception.

More than 55 million women have access to birth control without co-payments because of the contraceptive coverage mandate in the Affordable Care Act. This move will cost many of them access to birth control they currently receive at no cost, forcing some to make choices between paying for preventive care like contraceptives and paying their rent, their mortgage, or their electric bill.

In addition to its primary purpose, birth control is used to treat many other conditions like endometriosis, Polycystic Ovary Syndrome, Primary Ovarian Insufficiency, menstrual migraines, nausea, heavy bleeding, and clotting, all of which are debilitating and can be dangerous for women. Birth control is also used to treat women for whom pregnancy is not a safe or viable option based on pre-existing medical conditions.

Affordable contraception for women saves lives. It prevents unintended pregnancies. It reduces maternal mortality rates and improves quality of life. It does not, as the Trump administration is claiming, lead to ‘risky sexual behavior.’ No study has shown that access to contraception causes significant changes in sexual behavior.

Furthermore, it’s not 1950.

Reducing access to contraception increases unintended pregnancies and sexually transmitted diseases. It undermines women’s health and the health of families, curtailing options for planning pregnancies and, consequently, higher economic and educational attainment for parents.

And it’s not just that whether or not a woman has to pay out of pocket to cover contraception is now based on the religious or moral objections of her employer. The Trump administration also rolled back Title IX regulations intended to curtail sexual assault on college campuses and provide support and legal recourse to survivors. Republicans brought forth a health care bill that treated sexual assault and rape as a pre-existing condition, which would have driven up premiums for women seeking care and potentially cost them access to care altogether. The Trump administration ended the requirement that large companies report to the government what they pay employees by race and gender, a rule that aimed to close the gender wage gap. Republicans are doing everything they can to limit access to abortion, which is health care and a constitutional right.

And now they’re coming for access to contraception. All of these actions are connected—revealing a majority political party and administration aggressively fighting against the equality, autonomy, and well-being of women everywhere.

They’d better have a good lawyer.

*Taylor Holden is the Development Director of ProgressNow Colorado, the Chair of the Board of Directors of Emerge Colorado, and formerly served on President Obama’s reelection campaign

By Ruth Stein*

Older Americans may remember when November 11^th wasn’t known as Veterans Day. The day reserved to recognize, reflect upon, and revere the achievements of our American heroes was originally named Armistice Day to honor the cessation of major World War I hostilities (at the 11^th hour of the 11^th day of the 11^th month of 1918). It was renamed Veterans Day in 1954.

The new name rightly reflects that for so many of the men and women who have served our country, the war is never over. According to a Health Policy Brief from the American Society of Anesthesiologists, the veteran population is older and sicker than the general population. In 2011 the average veteran was between 60 and 64 years old, due to the larger size of the military force during the Korean War and Vietnam War eras. Chronic conditions and health problems are more common among veterans, and as they age their health declines more steeply.

For many older Veterans the physical wounds of war not only persist, but are also compounded by a host of other challenges that come with getting older. A recent article published in JAMA Psychiatry describes the findings of the National Vietnam Veterans Longitudinal Study looking at the prevalence of Posttraumatic Stress Disorder (PTSD) among Vietnam veterans. The article reports that an “important minority of Vietnam veterans are symptomatic [for PTSD] after four decades, with more than twice as many deteriorating as improving.” Meanwhile, “the stresses of aging, including retirement, chronic illness, declining social support, and cognitive changes” can “create difficulties with the management of unwanted memories” for PTSD-inflicted veterans.

Indeed, for the clients I serve as an attorney staffing the Older Veterans Legal Clinic at VA hospitals in New York City, cognitive decline can combine with health issues and psychological injuries to prevent them from effectively navigating social service systems, enforcing their legal rights, and accessing justice.

One client I met is Thomas, an 88-year-old disabled Korean War veteran who came to us facing eviction from his apartment. Thomas, whose income is below the poverty line, had previously been able to afford rent through a New York City senior citizen rent freeze program funded by landlord tax credits. Unfortunately, the freeze had lapsed when he failed to recertify, likely as a result of his disabilities. Meanwhile, these same age- and health-related challenges prevented him from solving, on his own, the legal problems they had caused. As a result, substantial advocacy—both in and out of housing court—was necessary to stop eviction proceedings and ensure the continued security of his home, including his rent freeze.

Stories like Thomas’ are a stark reminder that older veterans need attorneys on their side to succeed at their continuing struggles. If there is one thing to remember this Veterans Day, it may be that this is no time to lay down our “arms”—our oldest Veterans have not lived down the fight, and neither should we.

 

*Ruth Stein is an attorney with the New York Legal Assistance Group (NYLAG), and staffs the Older Veterans Legal Clinics at the Bronx and Manhattan VA medical centers. She is part of NYLAG’s LegalHeath unit, which partners with medical professionals to address the nonmedical needs of low-income individuals with serious health problems.

By Danielle Haley*

In late October, Governor Cuomo vetoed a bill that “Relates to the definition of a gravity knife.” The law aimed to reform New York­’s laws regarding gravity knives by reducing the possibility for discretionary and discriminatory enforcement. The law governing gravity knives was initially passed in 1958 and has not been updated since. This marks the second year that a bill to modify this law has passed both houses of the New York State legislature and been rejected by the Governor.

The 1958 law originally criminalized the possession of a knife “which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” In part because of New York case law, this has been interpreted to refer any knife that opens with “a flick of the wrist”, even if it does not do so easily or consistently, regardless of whether the defendant has actual knowledge that the knife is a so-called gravity knife. This interpretation means that almost any common folding pocket knife can be manipulated into being a “gravity knife” by an officer who is strong and determined enough. In fact, that is the exact situation of United States v. Irizarry, 509 F. Supp. 2d 198, wherein an officer managed to get a knife to open, in court, after three tries, by flicking his wrist. The fact that the defendant claimed not to open the knife that way, and that the knife was not even designed to open that way according to the manufacturer, was irrelevant to the court’s determination that it fell within the purview of the 1958 statute.

The bill that was passed by both houses of the New York State Legislature in this past year worked to get rid of the “flick of the wrist” test. It would have modified the text to say that a gravity knife was one “released from the handle or sheath thereof SOLELY by the force of gravity which, when released, is locked in place by means of a button, spring, lever or other device.” This would have prevented officers from swinging the knife in order to open it, and curtailed the number of common folding knives that could be classified as gravity knives.

Part of the push to modernize and limit this law has been its discriminatory enforcement. The Legal Aid Society and Brooklyn Defenders reported that “tens of thousands” of people are arrested each year on gravity knife charges. Of those arrests, particularly through stop and frisk procedures, 86 percent involved black or Hispanic suspects. Many of them are tradespeople, particularly those who work in construction or maintenance jobs. The knives are handy for any sort of work in which you need constant access to a cutting tool, and are popularly available at places such as Home Depot, Paragon, and Eastern Mountain Sports. Though the knives offered are simply standard folding knives, the “flick of the wrist” test means that almost any folding knife can be turned into a gravity knife by a well-worn hinge and a determined police officer.

According to the data reported by the Legal Aid Society, this makes possessing a “gravity knife” one of the 10 most prosecuted offenses in New York City. New York City is one of the few places that actually prosecutes gravity knife cases, with the Bronx seeing ten times the number of cases as Suffolk County, a county with a relatively equal population. Modifying the gravity knife law would reign in a system of discriminatory enforcement and stop individuals from being punished for carrying a tool used in the rest of New York State without incident. Though this measure was again rejected by the Governor, continued political pressure and common sense regulation will hopefully lead to the initiative being reintroduced, with success coming close behind.

*Danielle Haley is a 2L at Harvard Law School

By Alexander Andresian*

Two weeks ago, President Trump formally announced the beginning of the end of the Deferred Action for Childhood Arrivals (DACA) program.[1] Put in place by the Obama Administration, the DACA program granted work permits to, and deferred the deportation of, the children of undocumented immigrants (herein referred to as “Dreamers”) brought to the United States at a young age.[2] The announcement served as a reminder of the Trump Administration’s capacity for unspeakable cruelty and its willingness to erode the American ideals of fairness and justice in the pursuit of political gamesmanship.

During his announcement, Attorney General Sessions proffered three main justifications for ending the DACA program. The first following the logic that “the law is the law”[3] and therefore the law should be enforced. The second is that DACA hurts American economic interests. The third is that DACA violates the separation of powers implied in the U.S. Constitution. All three justifications, I argue, are incredibly facile and serve only to obfuscate the Trump Administration’s intention to use the livelihood of hundreds of thousands of Dreamers as a political bargaining chip.

The first argument—“the law is the law”[4]—is intellectually and historically dishonest. Laws are important. But laws do not always equal justice.[5] Should the Court’s decision in Dred Scott have been left at “the law is the law?”[6] What about Plessey v. Ferguson?[7] How about the institution of slavery?[8] These were all legal; they were also all immoral.[9] The law as it currently stands allows for the deportation of young adults who were brought to America by their parents, oftentimes as toddlers. We do not hold minors to the same standard as adults in most aspects of criminal law. Why do we do so with immigration? Using “the law” qua moral absolute heuristic seems to only achieve one purpose, namely, giving illiberal decision-making a veneer of legitimacy.

Another argument is that DACA hurts American economic interests. In fact, Attorney General Sessions claimed that “[DACA] denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”[10] This claim is demonstrably false. Dreamers “outpac[e] the general population in terms of business creation.”[11] If anything, this leads to the opposite conclusion: Dreamers create jobs, not “deny” them.

The third argument is that President Obama’s DACA policy is indefensible on the grounds that it violates the constitutional separation of powers. However, the power of the executive to exercise discretion on these matters is well known. In fact, the Reagan Administration used its own discretion to protect the children of undocumented immigrants who qualified under the Immigration and Control Act, even though the law did not explicitly cover these children.[12] The claim that conferring some form of protective status to a category of individuals constitutes unconstitutional executive overreach conveniently overlooks actions taken by a lionized member of the president’s own party.

The Trump Administration’s disjointed reasoning for rescinding DACA gives heavy credence to the theory that President Trump’s true intention is to callously risk the livelihoods of Dreamers to extract concessions from Congress to achieve his xenophobic campaign platform (e.g., the Wall). His eagerness to work with Senate Minority Leader Schumer and Minority Leader Pelosi to trade a DACA-replacement for increased border security similarly shows his cards.[13]

What will happen with DACA? Nobody knows for sure. But actions have nevertheless been taken to challenge President Trump’s disgraceful decision to end it. Fifteen state attorneys general (as well as the District of Columbia) have already sued the Trump Administration on the grounds that the President’s prior statements and actions indicate that his decision was informed by racial malice.[14] Politicians on both sides of the aisle have also expressed that ending DACA was the wrong decision.[15]

There are many avenues through which litigation, federalism, and advocacy can help to stymie the Trump Administration’s decision to end DACA, but nothing is as certain to improve the lives of the undocu+ community[16] as formal congressional action. Moreover, there are millions of other members of the undocu+ community that do not qualify for DACA. Passing the DREAM Act is certainly a good start, but we need comprehensive immigration reform and we need it now.[17]

*Alexander Andresian is a 3L at Harvard Law School

[1] The DACA program is set to end after a 6-month delay and DACA recipients are allowed to renew their status up until October 5th, 2017. President Trump has set this delay to give Congress time to act.

[2] See Catherine E. Shoichet, Susannah Cullinane, and Tal Kopan, U.S. Immigration: DACA and Dreamers Explained, CNN (Sept. 5th, 2017, 4:21 PM), http://www.cnn.com/2017/09/04/politics/daca-dreamers-immigration-program/index.html.

[3] Daishi Miguel Tanaka, Because the Law is the Law, ACLU of Southern California (Aug. 28th, 2017), https://www.aclusocal.org/en/the-law-is-the-law.

[4] See Daishi Miguel Tanaka, supra note 3.

[5] Id. (“But the law is not justice.”).

[6] See Daishi Miguel Tanaka, infra note 8.

[7] Id.

[8] I would like to credit Daishi Takana, a student at Harvard College and Dreamer, for raising this line of reasoning at Harvard College Act on a Dream’s Fight for Immigrant Rights Rally on September 5th, 2017; Daishi Miguel Tanaka, Because the Law is the Law, ACLU of Southern California (Aug. 28th, 2017), https://www.aclusocal.org/en/the-law-is-the-law (citing Jose Antonio Vargas of Define American).

[9] See Daishi Miguel Tanaka, supra note 8.

[10] Ryan Teague Beckwith, ‘We Cannot Admit Everyone.’ Read a Transcript of Jeff Sessions’ Remarks on Ending the DACA Program, Time (Sept. 5th, 2017), http://time.com/4927426/daca-dreamers-jeff-sessions-transcript/.

[11] Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow, Center for American Progress (Aug. 28th, 2017, 9:01 AM), https://www.americanprogress.org/issues/
immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow/.

[12] Mark Noferi, When Reagan and GHW Bush Took Bold Executive Action on Immigration, The Hill (Oct. 10th, 2014, 12:00pm), http://thehill.com/blogs/congress-blog/foreign-policy/219463-when-reagan-and-ghw-bush-took-bold-executive-action-on (“Immigration and Naturalization Service (INS) commissioner Alan Nelson announced he was “exercising the Attorney General’s discretion” to assure that children would “be covered” by legalization. The administration granted a blanket deferral of deportation (logistically similar to today’s Deferred Action for Childhood Arrivals program) for children under 18 who were living in a two-parent household with both parents legalizing, or with a single parent who was legalizing.”).

[13] Maggie Haberman & Yamiche Alcindor, Pelosi and Schumer Say They Have Deal with Trump to Replace DACA, The New York Times (Sept. 13, 2017), https://www.nytimes.com/2017/09/13/us/politics/trump-dinner-schumer-pelosi-daca-obamacare.html?mcubz=0.

[14] Matt Zapotosky, Attorneys General from 15 States, D.C. Sue to Save DACA, The Washington Post (Sept. 6th, 2017), https://www.washingtonpost.com/world/national-security/attorneys-general-from-15-states-dc-sue-to-save-daca/2017/09/06/98bca3b2-930f-11e7-aace-04b862b2b3f3_story.html?utm_term=.a478ddf3fe02.

[15] See, e.g., John McCain (@SenJohnMcCain), Twitter (Sept. 5th, 2017 8:46 AM), https://twitter.com/senjohnmccain/status/905094796003430401?lang=en.

[16] The term “undocu+” is an all encompassing term that refers not just to undocumented individuals, but also their families, many of whom are comprised of individuals who are both documented and undocumented.

[17] I would like to express my gratitude to my colleagues, Michael Adame and Jacob Glick, for their suggestions and edits to this piece.

By Caleb Hall*

The onslaughts of Hurricanes Irma and Harvey are the first recorded instance where two category four hurricanes reached the U.S. Atlantic coast within the same calendar year. As of this writing, the Houston area death toll has reached over eighty, and Hurricane Irma has taken thirty-nine lives in the United States along with thirty seven in the Caribbean. These storms were not caused by climate change, but their impacts were intensified by it.[1] Americans are justifiably turning to governments for aid and planning to avoid future tragedies. Unfortunately, a U.S. Supreme Court decision endangers intelligent disaster response and flood management.

In Arkansas Game and Fish Commission v. United States (2012), the Court made the seemingly innocuous declaration that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection,” thereby reiterating that temporary physical occupations are still takings.[2] As a holding there is nothing unique or alarming about Arkansas. A safeguard against temporary takings of property is necessary lest governments erode constitutional protections by repeatedly yet briefly invading property, and subjecting governmental flooding to the Takings Clause is nothing new.[3] The precedent for temporary invasions of property being compensable takings is also longstanding.[4]

However, Arkansas’ surrounding facts do pose troubling ramifications. Arkansas sued the United States for flooding that occurred within the Dave Donaldson Black River Wildlife Management Area from 1994 to 1999. The ephemeral flooding occurred because the federal government recurrently responded to upstream flooding while also catering to the needs of downstream farmers. Arkansas’ taking theory was then premised on the actual damage to the Management Area and lost timber. On remand, this taking claim was upheld in part because the flooding was foreseeable and that the government’s water management was the cause-in-fact of Arkansas’ damage.[5] Foreseeability and causation were found using flood patterns before the dam was built and afterward, but such an analysis neglects the increased flooding and water needs we expect with climate change.

In Arkansas, the federal government released water for farmers while protecting upstream concerns, but was nonetheless punished. The particulars of Arkansas’ Management Area may justify finding a taking, but this result becomes less clear when future torrents create a Faustian choice for dam operators: take downstream land to save upstream water users, or vice-versa? If a levee is deconstructed in response to environmental needs, and flooding resumes naturally, do we still hold the government liable? These dilemmas are aggravated by vested water rights, which compel free flowing water, but were not considered by the Arkansas court.[6]

Due to human action, a warming atmosphere is leading us towards more severe flooding and more demands on governmental water managers, but Arkansas warns governments that responses to address climate change related flooding may expose them to takings claims. To be clear, the government should pay for every taking it commits, but such a requirement potentially places dam operators in a no-win situation where flooding is expected but policy responses are inhibited.

*Caleb Hall is a legislative analyst for the Missouri House of Representatives. This work is the sole product of the author and does not necessarily reflect the views or opinions of the Missouri House of Representatives, its members, or staff.

[1] See Kevin Trenberth, John Fasullo, & Theodore Shepherd, Attribution of Climate Extreme Events, 5 Nature Climate Change 725 (2015) (noting that recent natural disasters were exacerbated by climate change); see also Ning Lin et al., Hurricane Sandy’s Flood Frequency Increasing from Year 1800 to 2100, 113 Proceedings from the Nat’l Acad. of Sci. 12071 (2016) (indicating that New York’s floods will intensify due to sea level rise and climate change).

[2] 568 U.S. 23, 38 (2012).

[3] Pumpelly v. Green Bay Co., 80 U.S. 166 (1872).

[4] United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261 (1950).

[5] Ark. Game & Fish Comm’n v. United States, 736 F.3d 1364, 1381 (Fed. Cir. 2013).

[6] Ark. Game & Fish Comm’n, 568 U.S. at 38.

By James Sasso*

Even though the Dallas Mavericks are his namesake, Senator John McCain has embraced the philosophy of the Philadelphia 76ers basketball team: trust the process. For 76ers’ fans, this mantra played like a jukebox stuck on Sting’s Desert Rose; at first it’s tolerable, but quickly it’s maddening. Fans suffered years of horrendous teams while management stockpiled draft picks, sidelined promising young talent, and refused to spend money on free agency. But now, “the process” has blossomed into a young core of talent that could remake the Eastern Conference.

Senator McCain wants Americans to suffer the same pain. In July, he sunk liberal (and many moderate) hearts by casting the deciding vote on the motion to proceed to debate a repeal of Obamacare. He then delivered a powerful speech on how senators must trust the process by actually debating legislation (despite having just voted to proceed on a bill no one had read, let alone seen). And then, finally, he cast the deciding vote against a “skinny” repeal because it had not gone through the proper process. Process, it’s all about process, and McCain joined the steadfast opposition of Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) to defeat a bill these senators knew had not endured the open debate and evaluation that legislation should experience.

McCain decided that he needed to embody millions of Americans’ frustration with congressional acrimony, obstruction, and partisan wrangling. “Why don’t we try the old way of legislating in the Senate,” he asked, “the way our rules and customs encourage us to act?” According to him, the once-lauded Senate has devolved into a partisan arena bordering on the acerbity apparent in the House of Representatives. The Founders hoped that the Senate’s institutional structure—six year terms and a less-direct link to voters—would insulate it from ideological squabbles and allow it to deliberate and create superior legislation, freed from the need to pacify society’s loudest, most dogmatic desires. For years, McCain served in a body that functioned along those lines, but it, like so many other governmental institutions, has foundered against polarization.

And therein lies McCain’s argument’s power: trust the process. The best type of lawmaking results from a dialectic conversation. As there is no philosopher king among us, no one person, and no one party, has all the answers. While debate will not discover any final “truth” or perfect policy, the best kinds of legislation are those formed when proponents listen to opponents’ critiques and work to overcome them. Today’s politicians have lost faith in the process because they have lost faith in the value of the opposition. On most issues, each side preemptively believes that the other is intellectually bankrupt and that going through the process will only damage potential legislation. Moreover, they face incredible pressure from constituents to pursue a dogmatic course of policy along partisan lines. Trusting the process takes patience and courage. It’s messy and results in “impure” ideological compromises. But Congress should be brave enough to know that this process makes better legislation.

Those experienced in lawmaking, like McCain, or those who are lawyers, like many elected officials, should know this is true. The history of law, especially common law in America, instructs that the best policies are not born unilaterally. Ideally, creating law is a conversation that involves adversarial thinkers whose ideas are brought together into a workable solution. The process takes time, patience, and some misfires. People continue to debate the existence of these laws to improve them. Judges make decisions and the law evolves. The process continues.

It is heartening to see McCain vote against a bill that would accomplish what he has stated his desire to be—unraveling Obamacare—because of a principled call for elected officials to resume their faith in the process. It will be slower than using parliamentary maneuvers to steamroll the opposition, but it will create better law if our representatives deliberate with honesty. As McCain said, “Let’s trust each other. Let’s return to regular order.” Philadelphia 76er fans can attest that with time, the process works. The Founders, like the 76ers, created a system dependent on deliberation, patience, and faith that the process would create optimal results over the long term instead of responding to calls for immediate action. It is far past time that our elected officials again trust the process.

*James Sasso is a 2L at Harvard Law School