How Not to Criticize the American Rescue Plan Act of 2021

MICHAEL C. DORF

Cornell law professor Michael C. Dorf responds to three broad-based objections by Republican opponents to the American Rescue Plan Act of 2021: (1) that the already-recovering economy doesn’t need stimulus; (2) that many of the Act’s provisions have nothing to do with COVID-19; and (3) that there will be waste, fraud, and abuse. Professor Dorf explains why these objections ring hollow and argues that while the Act is not perfect legislation and will likely face challenges in implementation, it is a much better option than anything Republicans were offering.

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Holmes v. Godinez

Dockets: 20-2236, 20-2709

Opinion Date: March 16, 2021

Judge: KANNE

Areas of Law: Civil Rights, Constitutional Law, Contracts, Criminal Law

The underlying class action alleged that the Illinois Department of Corrections (IDOC) unlawfully denied hearing-impaired inmates “the assistance they need to communicate effectively and participate in IDOC programs and services.” A 2018 Settlement required IDOC to screen inmates for hearing problems, refer inmates in need to a licensed audiologist for a more thorough audiological evaluation, maintain records of inmates’ evaluations, and provide inmates with care according to the results of their evaluations. For about a year after the court approved the Settlement, IDOC incorrectly referred about 700 inmates to licensed hearing instrument dispensers (LHIDs)—hearing-aid salesmen—instead of audiologists for evaluations. IDOC discontinued the practice in July 2019, based on an out-of-court agreement. In 2020, Plaintiffs moved to enforce the Settlement arguing that IDOC is not ensuring that the audiological evaluations are completed within a reasonable time period and sought attorney fees for the investigation and resolution of the LHID violations. The district court concluded that IDOC was in substantial non-compliance with the Settlement through the LHID violations,, ordered IDOC to pay about $54,000 in attorney fees, and held that the Settlement requires IDOC to ensure the audiological evaluations are completed within a reasonable timeframe, which it defined as 90 days after a referral. The Seventh Circuit affirmed with respect to attorneys’ fees. The district court incorrectly determined that IDOC was obligated to ensure that its inmates receive audiological evaluations within a set timeframe; the Settlement contains no such requirement.

Saechao v. Eplett

Docket: 20-1356

Opinion Date: March 16, 2021

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Legal Ethics

Charged in Wisconsin state court with armed robbery and false imprisonment, Saechao retained attorney Kronenwetter. The state charged Alonso-Bermudez and others, based on the same crimes. Those cases proceeded separately. The public defender did not know that Kronenweer was representing Saechao when it appointed him to represent Alonso-Bermudez. Kronenwetter told the judge in Saechao’s prosecution that he was concerned about a potential conflict of interests. After six weeks, he withdrew as Alonso-Bermudez’s lawyer. The public defender named Bachman as his replacement. The Saechao judge wanted an unconditional waiver of any conflict from both defendants. Saechao provided one; Alonso-Bermudez declined. The prosecutor listed Alonso-Bermudez as a potential witness in Saechao’s case; the judge disqualified Kronenwetter. By then Bachman had indicated that Alonso-Bermudez was willing to sign a general waiver but Alonso-Bermudez fired him; the judge thought that Bachman no longer could speak for Alonso-Bermudez. Saechao went to trial with a new lawyer and was convicted. Wisconsin’s appellate court affirmed, rejecting his argument that the judge had violated the Constitution by depriving him of his chosen lawyer. The Seventh Circuit affirmed the denial of federal habeas relief. Wisconsin’s Court of Appeals reasonably applied Supreme Court precedent. The judge had the discretion to disqualify counsel to avoid a serious risk of conflict. and had at least one good reason for disqualification, the fact that Alonso-Bermudez appeared on the prosecution’s witness list.

Thomas v. Martija

Docket: 19-1767

Opinion Date: March 16, 2021

Judge: Diane Pamela Wood

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Thomas broke his hand at the Hill Correctional Center in March 2011. X-rays from May 9 showed that Thomas’s hand was still fractured. On May 11, Thomas was transferred to Stateville. Hill officials removed his cast, stating that Thomas would receive a new cast at Stateville. No one re-casted him. A Stateville doctor reviewed Thomas’s May 9 x-ray on June 19, finding the fracture “unresolved.” A physician’s assistant looked at that x-ray on June 30 and determined that Thomas required no further treatment. An August 2011 doctor’s note described the hand as “still healing.” In December 2011, a doctor referred Thomas to physical therapy, which Thomas received in October-December 2012. Dr. Obaisi then became Stateville’s medical director; In August 2014, Thomas's low-bunk permit expired. Thomas met with Stateville medical staff and submitted grievances, describing lingering complications. Thomas met with Dr. Obaisi in January 2015 and repeated his requests, then submitted another grievance. Five months later, Dr. Obaisi renewed Thomas’s low-bunk permit and referred Thomas to an orthopedic specialist. Five months later, a specialist reported that Thomas had suffered nerve damage and that he would not have suffered such significant complications if his hand had been properly treated. The district court rejected claims under 42 U.S.C. 1983 on summary judgment. The Seventh Circuit reversed in part. Triable issues of fact remain with respect to Dr. Obaisi. A reasonable jury could conclude that a person who had asked twice for a renewed permit and had submitted grievances still needed the permit and that the delay would expose him to pain by forcing him to use his poorly healed hand to climb. The evidence would also permit a jury to conclude that Obaisi acted with deliberate indifference by unnecessarily delaying the referral.

United States v. Filzen

Docket: 20-1071

Opinion Date: March 16, 2021

Judge: KANNE

Areas of Law: Criminal Law

Filzen robbed seven Indianapolis stores while brandishing a firearm. He pleaded guilty to seven counts of Hobbs Act robbery, 18 U.S.C. 1951(a), and four counts of brandishing a firearm during and in relation to a crime of violence, section 924(c)(1)(a)(ii). The government dismissed three brandishing counts and moved for a three‐level sentence reduction for acceptance of responsibility. The plea agreement states that “if the Court accepts this plea agreement, the Court will sentence the defendant within the specific sentencing range set forth" and contains a sentencing range of 360-420 months’ imprisonment and payment of $900.00, “the mandatory special assessment fees imposed” under 18 U.S.C. 3013 The district court discussed with Filzen that “[t]here will be a special mandatory assessment of $100 for each count. The total is $900.” Filzen responded that he agreed. The court imposed a sentence of 360 months’ imprisonment but ordered that “Defendant shall pay a mandatory special assessment fee of $100 per count for a total of $1,100” without acknowledging the $200 discrepancy. No one noticed the mistake. Filzen appealed his sentence on the basis of the $200 difference in his special assessment and the fact that the district court did not offer him the opportunity to withdraw his guilty plea under Rule 11. The Seventh Circuit affirmed. On plain‐error review, the imposition of the correct, statutorily mandated special assessment although it differs by $200 from that in Filzen’s plea agreement need not be undone.