Capitol Comments

While a number of states have deployed public-private partnerships (P3s) to tackle infrastructure projects over the last decade, many believe the P3 industry in this country still has yet to take off in the way it has elsewhere in the world. That’s despite demonstrated success of P3s in traditional areas like managed lane projects and promising developments in a variety of new asset classes including airports, broadband projects and high-tech applications. And while the Trump administration looks to encourage more P3s and institutionalize their practices in federal programs, there are many factors that could limit growth in the industry and prevent any kind of a much-needed infrastructure push from ever getting off the ground in the years ahead. Those were just some of the takeaways from the Inframation Group’s U.S. P3 Infrastructure Forum 2018 held June 13-14 in New York City. The annual event brings together state and federal public officials and regional transportation authorities, along with infrastructure developers, investors and financiers to talk about the issues shaping the P3 industry’s future.

There have been a variety of activities in the world of autonomous vehicles this spring and summer. Here’s a roundup of the most recent federal, state and local policy actions, industry developments and research reports on the topic.

Gag clauses are at the forefront of state policy decisions as state policymakers attempt to reduce the cost of prescription medications. Gag clauses are established in PBM-pharmacy contracts prohibit pharmacists from informing consumers, unless asked, about cheaper ways to purchase prescriptions or access more effective alternatives, i.e., a lower cost generic drug or newer brand name drug with better outcomes. From 2016 to 2018, 22 states enacted legislation to prohibit the use of gag clauses to provide consumers and pharmacists more ability to communicate about cheaper options. Another nine states have legislation still pending. Eight states have legislation regulating pharmacy benefit managers, or PBMs, through audits, licensing and maximum allowable cost statutes that do not directly address gag clauses. More than eight states have Maximum Allowable Cost (MAC) statutes and auditing and licensing procedures enacted, however they also address gag clauses or claw backs specifically in their bill.

Numerous academics have complained about the Supreme Court frequently reversing lower court decisions that have denied police officers qualified immunity. In Sause v. Bauer the Court reversed (and remanded) a grant of qualified immunity.

In a unanimous per curiam (unauthored) opinion, the Supreme Court remanded this case back to the lower court to reconsider its decision granting qualified immunity to police officers who ordered a person to stop praying.

Every year it lands on Kentucky legislators’ desks with a thud—literally.

It’s the annual 300-plus page data-heavy research report containing statistical profiles on the state’s 173 public school districts.

The Supreme Court held 5-4 in Janus v. AFSCME that state statutes allowing public sector employers and unions to agree that employees who don’t join the union must still pay their “fair share” of collective bargaining costs violate the First Amendment. The Court also held that employees must “affirmatively consent” to join the union. More than 20 states authorize “fair share” for public sector employees.

In Abood v. Detroit Board of Education (1977) the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration, and grievance-adjustment. In Janus, the Supreme Court overruled Abood.

In a 5-4 decision in National Institute of Family and Life Advocates v. Becerra, the Supreme Court ruled that a California law requiring licensed pregnancy clinics to disclose they don’t offer abortions and unlicensed pregnancy clinics to disclose the fact they are unlicensed likely violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Court not to apply the highest level of scrutiny (strict scrutiny) to commercial speech or to every disclosure requirement adopted by states and local governments.

California law requires that “licensed covered facilities” that provide family planning or pregnancy-related services must disseminate a notice stating that publicly-funded family planning services, including contraception and abortion, are available. It also requires “unlicensed covered facilities” to disseminate a notice they are unlicensed. The author of the law noted there are nearly 200 licensed and unlicensed crisis pregnancy centers in California. These centers “aim to discourage and prevent women from seeking abortions.”

The National Institute of Family and Life Advocates (NIFLA) operates licensed and unlicensed covered facilities that don’t offer abortions. It argues these requirements violate its First Amendment right to free speech.

In a 5-4 decision in Trump v. Hawaii the Supreme Court ruled in favor of President Trump’s travel ban.

The third travel ban indefinitely prevents immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Hawaii and others sued President Trump claiming the ban was illegal and unconstitutional.

The Court agreed to decide four issues. First, whether the case is justiciable, meaning whether the legal issues are “fit for review.” Second, whether the third travel ban exceeds the President’s authority under the Immigration and Nationality Act (INA). Third, whether the travel ban violates the Establishment Clause because it seeks to exclude Muslims. Fourth, whether the Ninth Circuit nationwide injunction was overbroad.  

Abbott v. Perez is odd and unusually complicated even for a racial gerrymandering case.

In a 5-4 ruling, the Supreme Court upheld all but one of Texas’ 2013 congressional and state legislative districts. The Texas Legislature’s 2013 redistricting plan codified a Texas federal district court’s second attempt at redrawing the legislature’s 2011 plan. The Supreme Court concluded the lower court erred when it required the Texas Legislature to prove that it purged the racially discriminatory taint of the 2011 legislative-drawn plan.

In a long-awaited decision in Carpenter v. United States, the Supreme Court held 5-4 that the Fourth Amendment requires the government to receive a warrant to obtain cell-site location information (CSLI).

In the Court’s majority opinion Chief Justice Roberts provides an explanation of how CSLI works. “Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).”

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