Paris COP21: Can Everybody Win?

 

On December 12, 2015, 195 countries came together in Paris, France and took a large step forward in the fight against climate change. 1 Nations and representatives from all around the world negotiated and agreed on a plan to combat global warming and climate change. 2 The agreement’s primary purpose is to reduce global emissions so as to keep global temperature rise to less than two degrees Celsius in this century. 3 Some world leaders, including President Barack Obama, have hailed the agreement as “historic” 4 and people are quick to point out the successes and points of optimism surrounding the deal. 5 However, questions about the agreement’s effectiveness remain, especially about how well it addresses environmental and climate justice.

The agreement is widely criticized because it is not binding on countries and contains no enforcement mechanism. 6 Beyond that, however, many analysts and activists are concerned that the agreement does not consider climate change’s impact on the world’s most vulnerable communities. After all, climate change has already disproportionately affected certain vulnerable populations. 7 For example, rising sea levels, food scarcity, extreme heat, urban heat islands, drought, air pollution, and even human security and safety are all impacts of climate change. 8 However, these burdens are not shared evenly amongst the world’s populations. Rather, the risks associated with climate change’s impact are increased for developing nations and poor communities, in both rural and urban areas. 9

The Paris Agreement has been criticized for not addressing those populations’ needs. For example, a women’s rights group and stakeholder group of the UN’s Framework Convention for Climate Change, argued that promoting gender equality, along with other fundamental rights, should have been included in provisions explaining the agreement’s purpose. 10 Doing so, it is argued, would have encouraged that climate actions account for the rights, needs, and perspectives of women, and encourage women’s participation in decision-making.

Indigenous groups also advocated for their interests to be represented in the climate change agreement, and were disappointed when they were not. 11 Climate change poses a particular risk for indigenous groups because their livelihoods, cultures, and traditional knowledge are all dependent on the environment. 12 Given that the well being of indigenous peoples across the globe, from the Arctic Circle, to the American Southwest, to the South American rainforests, the lack of recognition and inclusion of indigenous rights in the agreement is troubling.

Climate justice concerns and the Climate Change Agreement’s shortcomings do not stop there. Elderly populations were not mentioned in the agreement, despite their increased vulnerability to heat-related illnesses and other extreme-weather events. 13 Poor people, too, were left out of the agreement, yet they are impacted by climate change more severely than wealthier populations. 14 They are also less likely to be able to adapt to or to mitigate the effects of climate change. 15

It is hard to deny that the climate change agreement is a good thing. Almost 200 countries collectively agreed to address a global problem and without the agreement, all of the world’s populations would certainly be no better off. However, when close to half of global emissions since 1990 have come from just the United States, China, Russia, and the European Union , there is no binding mechanism in the agreement, and the agreement does not even mention the world’s most vulnerable populations, who are already feeling the impacts of climate change, it is difficult to say that the agreement is really a win either.

1. Historical Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE NEWSROOM (Dec. 12, 2015), http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/.
2. Id.
3. Id.
4. Colleen McCain Nelson, Obama Hails “Historic” Agreement on Climate Change, WALL STREET J. (Dec. 13, 2015, 10:54 AM), http://www.wsj.com/articles/president-obama-hails-historic-agreement-on-climate-1449962632.
5. Sewell Chan, Key Points of the Paris Climate Pact, N.Y. TIMES (Dec. 12, 2015), http://www.nytimes.com/interactive/projects/cp/climate/2015-paris-climate-talks/key-points-of-the-final-paris-climate-draft.
6. S.A. Miller, Obama-backed Paris climate change deal disappoints environmentalists, THE WASH. TIMES (Dec. 13, 2015), http://www.washingtontimes.com/news/2015/dec/13/obama-backed-paris-climate-change-deal-disappoints/?page=all.
7. Jess Worth, Climate Justice – The Facts, NEW INTERNATIONALIST MAGAZINE, Jan. 1, 2009, available at http://newint.org/features/2009/01/01/climate-justice-facts/.
8. CHRISTOPHER B. FIELD ET. AL, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS IN: CLIMATE CHANGE 2014: IMPACTS, ADAPTATION, AND VULNERABILITY PART A: GLOBAL AND SECTORAL ASPECTS (CAMBRIDGE UNIV. PRESS, 2014).
9. Id.                                                                                                                                                                                                                                                10. WGC FP, A Reality Check on the Paris Agreement: Women Demand Climate Justice, WOMEN GENDER CONSTITUENCY (December 12, 2015), http://womengenderclimate.org/a-reality-check-on-the-paris-agreement-women-demand-climate-justice/.
11. Renee Juliene Karunungam, Indigenous Women: Respect our Knowledge and Tradition, FAIR OBSERVER: MAKE SENSE OF THE WORLD (Dec. 13, 2015), http://www.fairobserver.com/360_analysis/indigenous-women-respect-knowledge-tradition-13102/.
12. Id.
13. Fiona Harvey, Paris climate change deal to weak to help poor, critics warn, THE GUARDIAN, (Dec. 14, 2015, 12:29 PM), http://www.theguardian.com/environment/2015/dec/14/paris-climate-change-deal-cop21-oxfam-actionaid.
14. Id.
15. Field, supra note 8 at 3.
16. Mengpin Ge et al, Six Graphs Explain the World’s Top Ten Emitters, WORLD RESOURCES INSTITUTE (Nov. 5, 2014), http://www.wri.org/blog/2014/11/6-graphs-explain-world%E2%80%99s-top-10-emitters.

 

Overcoming Adolescent Obesity Through Title VI Complaints

 

The rate of obese adolescents aged 12-19 has nearly quadrupled in the last three decades to a staggering 21% in 2012. Overweight and obesity rates are even higher in certain populations, disproportionally affecting nearly 40% of African American and Hispanic children. Overweight and obese minors are more likely to develop high cholesterol or blood pressure, diabetes, develop bone or joint problems, and suffer from social and psychological issues such as poor self-esteem.

In an effort to address these problems, six advocacy groups filed an administrative complaint in August 2015 with the U.S. Department of Education, Office of Civil Rights alleging discrimination in California public school districts. The complaint highlights unjustified disparities in the access to physical education (PE) and fitness in California public schools on the basis of race, color, and national origin in violation of Title VI of the Civil Rights Act of 1964. The groups are asking the U.S. Department of Education to work with the California Department of Education to require all school districts to utilize a toolkit created by Los Angeles (LA) County Department of Public Health originally designed in response to an earlier 2008 administrative complaint filed against the LA Unified School District.

California state law requires students to participate in a minimum of 200 minutes of PE in elementary schools and 400 minutes in middle and high schools over the course of 10 days. However, the vast majority of students are enrolled in schools that fail to meet these requirements. A 2012 study investigated school district compliance and its effect on student’s physical fitness. It found that only half of districts were in compliance, and that students in compliant districts were 29% more likely to be physically fit compared to those who were not. On average, schools in compliant districts were more likely to have higher percentage of White or Asian populations. Conversely, students in noncompliant districts were more likely to be African American or Hispanic. Finally, compliant districts generally had smaller percentages of students eligible for free or reduced priced meals compared to noncompliant districts. This report established a relationship between race, socioeconomic status, and inadequate access to PE in violation of state law and Title VI. A 2015 study affirmed these results, finding considerable disparities in physical fitness among African American and Hispanic students. Passage rates for the state’s fitness test, the Fitnessgram, were depressingly low for all students, but were found to be lower among African American (22%) and Hispanic students (26%) compared to Caucasian students (34%).

In October, LA’s Physical Education Programs Office presented a compliance report to the Board of Education as part of the 2008 complaint. Students meeting the BMI healthy fitness zones (which was recalculated in 2010 making true comparisons difficult) increased during the period, indicating that the toolkit may have a positive effect, though overall passage rates remained low. Unfortunately, the report did not examine compliance rates with the PE minute requirements, the passing rates for the Fitnessgram, or BMI fitness zones or passing rates by race.

The advocacy groups anticipate that this complaint may lead to similar increases in physical fitness levels among all California students. According to the Institute of Medicine, routine physical activity may not only improve health but also students’ mental, cognitive, and psychological health among many other benefits, highlighting the importance of providing access to adequate PE for all regardless of race or income.

This blog was prepared by Kim Weidenaar J.D., Deputy Director, Network for Public Health Law – Western Region Office, Sandra Day O’Connor College of Law, Arizona State University.

Is the Death Penalty on Life Support?

Is the Death Penalty on Life Support?
By Kevin Heade, JD
Attorney at the Central Arizona National Lawyers Guild
January 3, 2015

The Republican primary season is heating up, and the GOP’s Presidential candidates are foaming at the mouth to declare their resolve to carpet-bomb thousands of innocent people in the Middle East or murder the families of suspected terrorists in order to gain traction in Iowa or New Hampshire. Such disdain for international law and norms from the GOP isn’t surprising. So the outcome of Glossip v. Gross wasn’t shocking. In Glossip, the four conservative justices of the Supreme Court teamed with Justice Kennedy to find that Oklahoma’s execution protocol is constitutional.
Glossip challenged Oklahoma’s execution protocol which involved a three-drug protocol, midazolam, pancuornium promide, and potassium. The petition for relief was part of an ongoing national litigation strategy of death row inmates who have sued states on First Amendment grounds to learn how the state intended to carry out executions in their respective cases. This ongoing national litigation also included 1983 challenges claiming that particular protocols established by a state will result in cruel and unusual punishment.
Prior to Glossip, the apparent standard required for a death row petitioner to prevail required the petitioner to demonstrate a “substantial risk of serious harm” that “prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.” This standard, articulated in Baze v. Rees, was adopted after the Supreme Court was presented with challenges to Kentucky’s execution protocol claiming that the haphazard ways Kentucky’s death squad inserted intravenous catheters in condemned prisoner’s carried an unjustifiable risk of pain if the first drug, sodium thiopental, was not administered properly.
The litigation surrounding Baze and other challenges across the country brought international scrutiny to the morality of the death penalty. Hospira, the domestic manufacturer of sodium thiopental, a “fast-acting barbiturate,” decided that being the major supplier of a drug used in death cocktails did not align with its values as a pharmaceutical company. Rather than continue to play a role as executioner, Hospira ceased its production of the drug.
States then turned to another barbiturate, pentobarbital, which was also used without other drugs by some states, to carry out executions. Lundbeck Inc., the Danish manufacturer of pentobarbital then restricted the sale of the drug before selling the rights to the drug to another company to prevent prisons from obtaining it for use in executions.
Hospira and Lundbeck’s actions spawned a wave of criminal activity among state officials, who have sought to circumvent federal drug laws and European bans on exporting drugs for use in executions. State officials have resorted to drug smuggling and other crafty efforts to avoid breaking the law, including importation of drug chemicals for mixing in local apothecaries. These shady efforts by state officials were challenged by death row inmates, who first have to prevail in First Amendment litigation to learn how states were planning on carrying out executions, and then to prove that new methods, often involving unreliable drug sources, would create an objective risk of substantial harm articulated in Baze.
Glossip challenged the drug midazolam, which is a benzodiazepine without analgesic properties, that is alleged to have a “ceiling effect” which means that increased doses do no result in rendering the patient “insensate to pain.” Justice Sotomayer’s dissent in Glossip highlighted the faulty science and unreliable expert testimony presented to the district court which was accepted by the majority as sufficient to deny Glossip’s Eighth Amendment claim.
However, on review of Justice Alito’s opinion and Justice Scalia’s concurrence, and even the casual observer can discern that four conservative members of the Court dismiss Supreme Court precedent and ignore the science calling for an appreciation of the “evolving standards of decency” in Eighth Amendment jurisprudence.
Rather than evaluate the role of the death penalty in 21st Century America, Alito and Scalia imagine “guerrilla warfare” being assailed against the death squads employed by a smaller and smaller number of county prosecutors in a declining number of states that choose to carry out the death penalty.
Scalia, a Catholic, who has previously stated that he would resign if the “Catholic doctrine held the death penalty to be immoral,” has as much trouble defending his historical interpretation of the Supreme Court’s jurisprudence on the Eighth Amendment and the death penalty as he does in explaining why his personal views aren’t at odds with his faith. Don’t expect Scalia to follow in John Boehner’s footsteps any time soon, even as Pope Francis pleads with Congress to abolish the death penalty and announces a Holy Year of Amnesty, which includes a call to abolish the death penalty worldwide. Scalia (and Alito, Thomas, and Roberts) will never let experiences with the death penalty on the Court cumulate to the point that it becomes obvious that “the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’”
However, the tide is turning against the death penalty. Public opinion has shifted dramatically in favor for life in prison as an alternative to the death penalty. States continue the trend toward abolition. Perhaps more importantly, Justice Breyer, like other justices before him who were forced to wrestle with the myriad of constitutional issues involving the constitutionality of the death penalty, has come to question whether the ultimate punishment can remain constitutional in the 21st Century. Breyer’s dissent in Glossip shifted the emphasis of the abolition movement away from a state-by-state strategy and looking for the case that could sway Justice Kennedy, beckoning the death knell for the death penalty.
If you are on the fence, or even if you are on the wrong side of the fence and are easily persuaded by the unbecoming “gobbled-gook” that Scalia offers as an originalist interpretation of the Constitution, take the time to compare Scalia’s work on the subject with that of Brennan and Marshall in Furman. You will see that the pro-death penalty advocates like Scalia rely on dehumanizing death row inmates by emphasizing the gruesome nature of the crimes committed condemned while also ignoring all objective indicia demonstrating that the death penalty cannot be applied constitutionally. Brennan’s explanation of why the death penalty is excessive under the Eighth Amendment because “it is nothing more than the pointless infliction of suffering” that “does not comport with human dignity” cannot be denied. Brennan’s points on the infrequency of the application of the death penalty are mirrored over forty years later in Breyer’s dissent in Glossip. Marshall’s concurrence in Furman provides a historical overview of the Eighth Amendment, which is described as a right independent of the judgment of legislatures, which serves as “our insulation from our baser selves.”
Scalia, Alito, Thomas, and Roberts can not provide a justification for continuing the cruelty of the death penalty in light of the views articulated by Brennan, Marshall, Blackmun, Powell, Stewart, White, Douglas, Stevens, Breyer, and Ginsburg over the years.
We can only hope that the right case is brought to the Supreme Court soon, and that President Obama acts on his inkling to grant clemency to federal death row inmates, but that shouldn’t prevent us from continuing at home with the state-by-state strategy toward abolition. Here in Arizona, there is some hope that the Arizona Supreme Court may eventually rule that Arizona’s scheme for death is arbitrary and capricious. If you live in one of the counties with “America’s Deadliest Prosecutors,” you can start by working to elect prosecutors who won’t waste local resources seeking the death penalty for political gain.
We can also continue these conversations with our neighbors and family, pointing out that the death penalty is morally reprehensible, fiscally irresponsible, arbitrarily applied, geographically disparate in use, and puts us in the company of China, Iran, and Saudi Arabia as a nation. If the moral arc of the universe is long and bent toward justice, we may be living near that moment when we show the rest of the world that our standards of decency have evolved to the point where we finally recognize human dignity in all lives. Sooner or later, we will prevail in abolishing the death penalty. For now, though, the pressing question remains, “Will Justice Kennedy side with us?”
Edited by Brenna Carpenter, JD Candidate 2017, Sandra Day O’Connor College of Law on behalf of the Law Journal for Social Justice.

Without a Remedy: The Effectiveness of the Indian Civil Rights Act

Without a Remedy: The Effectiveness of the Indian Civil Rights Act
John Yankovich
Individual rights are heavily valued in America. American citizens can feel secure that anywhere they travel in the United States their individual liberties and rights, enshrined in the Constitution, will (usually) be upheld. If those rights are violated, constitutional case law provides citizens with various forms of remedies for restitution.

Native American tribes complicate this dynamic, at least for tribal members. Even though Congress may exercise broad plenary control regarding tribal power decisions, tribes still retain some of their inherent tribal sovereignty.[1] For example, tribes may still try tribal members and have complete control over membership decisions. In Talton v. Mayes, the Supreme Court found that tribal power predates the Constitution and thus the Bill of Rights did not apply to tribes in their tribal court decisions involving tribal members.[2] This line of reasoning was continued in subsequent Supreme Court decisions.[3] This protected tribal sovereignty, which has slowly been whittled away by subsequent Supreme Court decisions, has also left open the possibility that tribal courts could violate the civil rights of tribal members.

During the 1960s, congress held a series of hearings regarding “abuses that some tribal members were enduring at the hands of sometimes corrupt, incompetent, or tyrannical tribal officials.”[4] In response to these hearings, Congress passed the Indian Civil Rights Act, which applied most of the Bill of Rights to Indian Tribes.[5] The statute enumerated ten rights resembling “provisions in the United States Constitution’s first, fourth, fifth, sixth, and eighth amendments, and the equal protection and due process provisions of the14th amendment.”[6] Noticeably absent from the statute; however, were an establishment clause, any right to counsel, right to civil jury trial and grand jury indictment, and a right to bear arms.[7] The differences between the rights enumerated in the ICRA from the Bill of Rights show a Congressional intent to respect tribal traditions and budgetary concerns.[8]
For a decade federal courts enforced the ICRA in civil and criminal cases on the reservations.[9] Sometimes even applying the due process and equal protection clauses to purely intra-tribal matters such as tribal decisions regarding election procedures and tribal membership criteria.[10] However, in 1978, the Supreme Court’s decision in Santa Clara Pueblo v. Martinez would end most federal litigation regarding the ICRA and render the law mostly ineffective.

In Santa Clara Pueblo, a female tribal member asked for injunctive and declaratory relief challenging a tribal ordinance that denied tribal membership to children of women who married outside of the tribe, but still allowed children of male members who married outside of the tribe to attain tribal membership.[11] While this would seem to be a clear violation of the equal protection clause of the ICRA, the Supreme Court found that injunctive and declaratory relief could not be granted because the ICRA did not expressly allow these remedies.[12] Longstanding Supreme Court precedent provides that Native American tribes may invoke sovereign immunity to dismiss suits against the tribe.[13] In order to abrogate this immunity and open a tribe up to suit, Congress must expressly state its intent to waive tribal sovereign immunity unequivocally.[14] The ICRA only offered habeas corpus reviews as a remedy,[15] and thus the Supreme Court found that the ICRA could only be applied to illegal detentions.[16] The ICRA was therefore basically rendered ineffective and tribal members would be without a remedy when tribal governments and courts violated their due process and equal protection rights.

One question that arose after Santa Clara Pueblo was whether the problem Congress had hoped to address with the ICRA actually existed. How many tribes actually violated due process and equal protection rights of their tribal members? A decade after Santa Clara Pueblo, Congress held a series of hearings in five cities regarding the effectiveness of the ICRA.[17] At a the hearing held in Phoenix, Arizona, the United States Department of Justice detailed 71 complaints and 98 violations of the ICRA from the years 1978 to 1988.[18] These violations include tribes revoking membership and property from tribal members in retaliation for members complaining about tribal practices,[19] taking children away from parents without due process,[20] and tribal councils literally overruling tribal appellate court decisions, along with many more substantial violations of tribal members’ civil rights.[21] The tribal members mentioned in this report lacked legal recourse because they were not illegally detained.

Luckily, since the Congressional hearings, there has been a recent movement by some tribes towards adopting some of the ICRA’s provisions. Tribal courts have used the ICRA to reverse the removal of tribal council members,[22] reverse tribal banishment decrees,[23] required employees to be provided representation during termination hearings,[24] required evidence found during unlawful searches and seizures be excluded from introduction into evidence,[25] and struck down or enjoined enforcement of ordinances for violating equal protection,[26] due process,[27] and the right to free exercise of religion.[28] In fact, examples of tribes applying certain rights enumerated in the ICRA are too numerous to list here.[29] While this is certainly an encouraging development, there have not been any empirical studies showing how many of the 562 tribes in the United States have adopted actually civil rights protections. Congress never commissioned another comprehensive report on this subject,[30] and many tribal court decisions are not published, making it very hard to get a sense of how many tribes have actually chosen to protect their members’ civil rights. Additionally, stories still surface of tribes that grossly violate their members’ civil rights.[31] It is therefore impossible to gauge whether tribal civil rights abuses are still a large problem.
Unless Congress changes the language of the ICRA to include monetary or injunctive remedies, tribal members will have to rely on the willingness of tribes to voluntarily adopt the ICRA or similar civil rights protections. Otherwise, these tribal members will be without legal recourse when their rights are violated.

[1] U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act 3 (Comm. Print 1991).

[2] Id. at 4.

[3] Stanley I. Kutler, Dictionary of American History 264 (Charles Scribner’s Sons, 3rd ed. 2003).

[4] Id.

[5] U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act 5 (Comm. Print 1991).

[6] Id.

[7] 25 U.S.C.§§ 1302(a).

[8] U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act 5 (Comm. Print 1991).

[9] Rebecca Tsosie et al., American Indian Law: Native Nations and the Federal System 413 (6th ed. 2010)

[10] Id. (citing Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079 (8th Cir. 1975); Slattery v. Arapaho Tribal Council, 298 F. Supp. 26 (D. Ariz. 1969)).

[11] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 52 (1978).

[12] Id. at 70.

[13] Id. at 58 (citing Turner v. United States, 248 U.S. 354, 358 (1919)).

[14] United States v. King, 395 U.S. 1, 4 (1969) (citing United States v. Sherwood, 312 U.S. 584)).

[15] 25 U.S.C. §§ 1303.

[16] Santa Clara Pueblo, 436 U.S. at 71.

[17] U.S. Comm. Civil Rights, 102nd Cong., Rep. on the Indian Civil Rights Act ii (Comm. Print 1991).

[18] Enforcement of the Indian Civil Rights Act: Hearing Held in Phoenix, AZ, Before the United States Comm. on Civil Rights, 100th Cong. 132-33 (1988) (Letter from James P. Turner, U.S. Department of Justice, to William J. Howard, U.S. Commission on Civil Rights, Jan. 24, 1989, re Allegations of ICRA Violations Post Santa Clara Pueblo v. Martinez).

[19] Id. at 135.

[20] Enforcement of the Indian Civil Rights Act: Hearing Held in Washington, D.C., Before the United States Comm. on Civil Rights, 100th Cong. 156 (1988) (Sharon Sehmickle and Roger Buoen, Indian Courts: Islands of Injustice, Minneapolis Star and Tribune, January 5, 1986).

[21] Enforcement of the Indian Civil Rights Act: Hearing Held in Phoenix, AZ, Before the United States Comm. on Civil Rights, 100th Cong. 137 (1988) (Letter from James P. Turner, U.S. Department of Justice, to William J. Howard, U.S. Commission on Civil Rights, Jan. 24, 1989, re Allegations of ICRA Violations Post Santa Clara Pueblo v. Martinez).

[22] Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 522 (2000) (citing Coalition for Fair Gov’t II v. Lowe, 23 Indian L. Rep. 6181 (Ho-Chunk Tribal Ct. 1996)).

[23] Id. (citing Burns Paiute Indian Tribe v. Dick, 22 Indian L. Rep. 6016, 6017 (Burns Paiute Ct. App. 1994)).

[24] Id. (citing Johnson v. Mashantucket Pequot Gaming Enter., 25 Indian L. Rep. 6011 (Mashantucket Pequot Ct. App. 1996)).

[25] Id. (citing In re D.N., 22 Indian L. Rep. 6071 (Hopi Child. Ct. 1995)).

[26] Id. (citing Conroy v. Bear Runner, 16 Indian L. Rep. 6037, 6039 (Oglala Ct. App. 1984)).

[27] Id. (citing Rough Rock Cmty. Sch. v. Navajo Nation, 22 Indian L. Rep. 6162 (Navajo 1995)).

[28] Id. (citing Kavena v. Hamilton, 16 Indian L. Rep. 6061, 6062 (Hopi Tribal Ct. 1988)).

[29] Robert J. Mccarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 34 Idaho L. Rev. 465, 498-504 (1998).

[30] Klint A. Cowan, International Responsibility for Human Rights Violations by American Indian Tribes, 9 Yale Hum. Rts. & Dev. L.J. 1, 41 (2006).

[31] Harold Monteau, Indian Civil Rights Act Has Done Nothing for Individual Indians’ Rights, Indian Country Today (July 2, 2012), http://indiancountrytodaymedianetwork.com/2012/07/02/indian-civil-rights-act-has-done-nothing-individual-indians-rights (citing case where a tribal member was denied counsel, prosecutor acted as defense counsel, and tribe failed to read charges against him until day of trial); Tom Robertson, Tribal Justice – But not for All, Minnesota Public Radio (April 2001), http://news.minnesota.publicradio.org/projects/2001/04/brokentrust/robertsont_tribaljustice-m/index.shtml (reporting claims by tribal members of exclusion from reservation without any hearing, lack of separation of powers between judicial, legislative and executive branches of tribal government, leading to injustices); Eric Reitman, An Argument for the Partial Abrogation of Federally Recognized Indian Tribes’ Sovereign Power over Membership, 92 Va. L. Rev. 793, 818 (2006) (citing evidence that 2,000 tribal members in California have been disenrolled from their tribes without cause).

“Imagine” Not Paying Taxes

Todd Gee – Sandra Day O’Connor College of Law

Ted Cruz announced his bid for the Presidency by evoking John Lennon’s “Imagine.”[1] Among a list of policy objectives, Cruz asked his would be constituents to imagine “abolishing the IRS.”[2] The sentiment behind this refrain is understandable: Americans do not like to pay taxes. A 2013 survey by the Pew Research Center found that 56% of Americans either hate or dislike paying their taxes, as opposed to 34% who like or love paying taxes.[3] Among the reasons for disliking taxes were that taxes are complicated, inconvenient and involved too much time and paperwork.[4] While Cruz may be an outlier, calls have been made by members of both parties to simplify the tax code. If done properly, amending the tax code could encourage greater social justice by ensuring that credits and deductions are delivered to those taxpayers who need it most.

One reason why the tax code is so complicated is the presence of myriad tax deductions and credits. Tax experts often refer to these deductions and credits as tax expenditures. Congress offers tax credits and deductions as a means to influence taxpayer behavior, or to favor certain industries without giving that aid in the form of an outright subsidy. Spending through the tax code diverts over $1 trillion per year from the Treasury, which is large enough to close the federal deficit in 2014..[5],[6] In addition to contributing to deficits, spending through the tax code disproportionately favors the rich. Itemized deductions specifically favor the rich because most taxpayers do not itemize their returns. For taxpayers who do itemize, wealthiest Americans benefit more significantly because their tax rates are higher.[7]  Put simply, a taxpayer in the 35% tax bracket has more to gain by reducing their income than someone in the 15% tax bracket. While not exclusively the cause of income inequality in the United States, the current construction of the tax code provides a disproportionate benefit to those who need the least help from the government.

However, it is possible to reduce the effect tax deductions have on horizontal and vertical equity by limiting their use. President Obama’s proposed budget for the current fiscal year recommended limiting the value of deductions in proportion to taxable income.[8] The President’s proposal would limit deductions to 2% of income for higher income taxpayers and would accomplish the goals of reducing loss of revenue and encouraging greater progressivity.[9] Other proposals to reduce the negative effects of tax expenditures are raising the floor for itemized deductions, converting deductions to credits, or eliminating itemized deductions altogether. All of these proposals would serve the dual purpose of increasing the government’s tax revenues and encouraging greater vertical and horizontal equity in the tax code. For example, converting deductions to credits will eliminate the disproportionate benefit that deductions give to taxpayers facing higher marginal rates. While these policies would eliminate hidden, structural government spending it is important to recall that elimination of some tax expenditures, such as the deduction for medical expenses, could increase some taxpayers’ liability beyond their ability to pay.[10] Therefore, any proposal to eliminate or limit tax expenditures should ensure that policies that are currently favored, such as alleviating the effect of catastrophic medical expenses, continue to be accounted for.

Proposals like abolishing the IRS are unlikely to be successful and fail to address major shortcomings in the tax system, which contribute to the income inequality problem in the United States. Simplifying the tax code, to eliminate or curtail the use of tax expenditures, is one means that can be employed to ensure that the money spent through tax expenditures is divided more equally among taxpayers.

[1] http://www.nytimes.com/2015/03/24/opinion/imagine-president-ted-cruz.html?_r=0

[2] Id.

[3] http://www.people-press.org/2013/04/11/a-third-of-americans-say-they-like-doing-their-income-taxes/.

[4] Id.

[5] https://turbotax.intuit.com/tax-tools/tax-tips/Tax-Deductions-and-Credits/The-10-Most-Overlooked-Tax-Deductions/INF12062.html

[6] http://www.wsj.com/articles/u-s-budget-deficit-in-2014-narrows-to-lowest-level-in-six-years-1413385493

[7]http://www.hamiltonproject.org/files/downloads_and_links/THP_15WaysFedBudget_Prop7_rev.pdf

[8] Congressional Research Service, 12. http://fas.org/sgp/crs/misc/R43079.pdf.

[9] Id.

[10] Congressional Research Service, 15 http://fas.org/sgp/crs/misc/R43079.pdf