Earlier this week the Supreme Court granted certiorari to hear the latest case aimed at thwarting the Affordable Care Act (ACA).  The case, California v. Texas, challenges the constitutionality of the entire ACA based on the viability of the individual insurance mandate, a central part of the act. The foundation for the individual mandate, which functions as a tax on those who do not purchase health insurance, is rooted in Congress’ taxation power. However, in 2017, Congress passed legislation that reduced the individual mandate to zero dollars, seemingly disabling its function as a tax. Without this taxation authority, Texas now argues that the ACA is unconstitutional as a whole.

The 5th Circuit majority affirmed the federal district court ruling that the individual mandate is unconstitutional, but failed to specify if other key provisions would be dismantled by this decision (notably the popular protections for those with preexisting conditions). Meanwhile, the dissenting judges expressed their view that the ACA did not require the individual mandate to survive this challenge.

Upon review, the Supreme Court will likely address the issue of severability – whether the individual mandate can be excised from the ACA, leaving the remaining provisions intact, or if the individual mandate is so integral to the act that the rest of it must fail if the individual mandate does. Thus, the Court could rule one of three ways after hearing this case in October: it could invalidate the entire ACA as unconstitutional, invalidate only the individual mandate while upholding the remainder of the act, or it could overrule the 5th Circuit’s decision and declare the individual mandate constitutional, preserving the entire act.

The implications of this decision will have a sweeping effect on the landscape of the American healthcare system. While the total elimination of the ACA may be welcomed by the current administration, the act is at its all-time highest rating, with 55% of the public supporting the law. Given the uncertainty this lawsuit presents about the future of the healthcare system, it is likely to stoke political discourse as the nation prepares to vote in the upcoming presidential election.

Supreme Court Challenge to the Affordable Care Act Slated for October

For many women in America, discovering their male coworkers are paid more for the same job is not a novel experience. The gender pay gap – now a difference of about 21 cents per dollar – is perpetuated by employment practices that rely on valuing women’s salaries based on their past earnings. Historically, companies have used female plaintiffs’ past earnings as a defense in suits brought under the Equal Pay Act (“EPA”). On Thursday, the Ninth Circuit ruled in Rizo v. Yovino that defendants may not use prior pay rate as an affirmative defense to EPA claims.

As for the facts, the plaintiff, Aileen Rizo, was hired as an experienced math consultant by the Fresno County Office of Education at a salary well below that of her male counterparts and less than the male entry-level employees. After learning of the stark pay discrepancies, Rizo filed suit under the EPA. The EPA offers four exceptions for which a man may be paid more than a woman for “substantially similar” work: “(1) seniority; (2) merit; (3) the quantity or quality of the employee’s work; or (4) ‘any other factor other than sex.’” The defendants argued that female salary history is encompassed in the fourth exception. However, the court reasoned that the fourth exception is exclusively relevant to value-driven factors, and thus, past pay is irrelevant under this exception. This ruling closes a “loophole that perpetuated gender inequities,” allowing employers to justify discrimination by pointing to a past injustice and using it to avoid liability.

But not all jurisdictions follow the Ninth Circuit’s approach. Currently, there is a circuit split on the issue, which may prompt the Supreme Court to intervene. The Ninth Circuit’s holding is joined by the Second, Fourth, Sixth, Tenth, and Eleventh Circuits. The Seventh and Eighth Circuits, however, have found the language, “factor other than sex,” to include past pay. As a result, companies should proceed with caution and have an understanding of their jurisdiction’s ruling on the issue. That being said, best practices indicate cause for removing the practice entirely.

Recently, many companies have taken active steps to address the gender pay gap. A vast number of companies have removed salary history questions from their interview process and implemented standard metrics that determine salary based on the prospective employee’s value creation rather than the amount they were previously paid. Some states ban the inclusion of pay history questions altogether. As for the EPA’s regulatory regime, businesses may be held liable regardless of their intent. Thus, this places pressure on businesses to maintain an annual internal auditing system to identify any potential gender pay discrepancies and implement reasonable corrective measures.

The Rizo ruling functions to narrow the exceedingly broad definition of “factor[s] other than sex” and set a higher standard for business hiring practices. Companies must now look toward preventative measures to ensure equity for their employees and new hires. Hopefully, courts will continue to demand pay equity regardless of past injustice.

Ninth Circuit Tears Down Equal Pay Act Loophole

Jeff Bezos, the richest person in the world, announced via Instagram that he will commit $10 billion to fight climate change. The $10 billion accounts for one thirteenth of Bezos’ $130 billion net worth.

People tend to compare the spending of Jeff Bezos with that of Bill Gates, a tech mogul who was once the richest person in the world. Gates is as well known for being a philanthropist as he is for being a Microsoft co-founder. Not only has Gates himself given billions of dollars to charitable efforts, but he has encouraged fellow billionaires to do so as well. Warren Buffet, for example, has devoted 50% of his wealth to “The Giving Pledge” initiated by Gates.

By contrast, Bezos has historically given only 1% of his wealth to charity. The news has instead noted the record amounts he has paid for other things, such as for a Bel-Air mansion worth $165 Million and a divorce settlement of $38 billion. But his contribution to climate change comes at a record amount, as well.

Despite the overwhelming excitement following the unveiling of Bezos Earth Fund, a group of climate experts has raised concerns about the potential that Bezos’ wealth can manipulate the planet’s future, and have urged Bezos to take a hands-off approach to his fund.

And despite the fund being an act of personal giving, the public is projecting its concerns about Amazon onto the fund. This demonstrates the public’s distrust of big tech, even while its leaders are increasing their CSR and ESG efforts. Much of this is understandable; indeed, Amazon’s own carbon emissions equate to burning almost 600,000 tanker trucks worth of gasoline.

Richest Person in the World Gives Away a Thirteenth of Net Worth for Climate Change

Silicon Valley is known for being disruptive in the technology industry and stimulating social change. However, tension is mounting as Bernie Sanders, an independent senator from Vermont, begins to edge out his competition in the 2020 presidential race. Leaders in the Silicon Valley are worried that Sanders’ position is too extreme and that voting for him is a vote in favor of socialism. The views of employees of big tech companies – who are in favor of Sanders and want to see significant economic and social change – seem to be diametrically opposed with the views of their bosses, who want a “moderate” Democrat at the helm.

Venture capitalists and executives seem to be on the same page. They are saying “anyone but Sanders.” A partner at the venture capital firm, Menlo Ventures, recently said, “I’m trying to balance what socialism means versus four more years of Trump, and honestly it feels like which is the worse of two evils?” He further stated that “eighty percent [of his colleagues in the venture capital industry] are thinking the same thing, but many do not speak out.” Another prominent venture capitalist said, “I would certainly vote for Trump over Sanders.”

Sanders has taken a strong position against tech elites. Specifically, he has taken a stance against Apple for not paying enough taxes, and called for Google to be broken up because it is “too big” and “anti-worker.” The Silicon Valley is where technologists come in hopes of developing a “unicorn” startup to be valued at or above $1 billion. Technology company leaders are concerned about their wealth when Sanders says, “billionaires should not exist.” Sanders has also proposed that corporate taxes be raised to 35% and for earlier taxation of stock options.

Self-proclaimed “moderate” Democrats – or so called “common sense” Democrats – and tech leaders in the Silicon Valley, had been primarily supporting Pete Buttigieg (who recently ended his campaign). Mr. Buttigieg’s campaign was financed by an extensive list of Silicon Valley titans including: Reed Hastings, the CEO of Netflix; Ben Silbermann, the CEO of Pinterest; Reid Hoffman, a co-founder of LinkedIn; and John Doerr, a prominent venture capitalist, according to Federal Election Commission filings. Many of them have since moved on and are supporting Joe Biden. Eric Schmidt, Google’s former CEO, also donated to Mr. Biden’s campaign.

Other Silicon Valley moguls like Larry Ellison (founder at Oracle) and Peter Thiel (prominent venture capitalist) have staunchly supported Republican Candidates. In fact, Ellison recently hosted a fund-raiser for President Donald Trump which caused serious backlash at his company.

There seems to be a schism between those who lead tech companies and their employees. The way Silicon Valley votes is crucial because there is a vast amount of talent, capital, and influence packed in the region. One could argue that tech employees are the gears that turn the Silicon Valley engine and that their voices are most important. Alternatively, tech leaders’ position on presidential candidates should not be viewed as one concerned with mere personal gain, but instead an exercise of their seasoned opinion about what policies (endorsed by certain candidates) are most favorable for producing successful, high-growth companies. As the 2020 presidential election carries on, one hopes that whoever takes the helm will close the chasm between tech leaders and their employees.

Silicon Valley Leaders Are Worried About Bernie Sanders

Recent years have witnessed several attacks on governments and businesses by Ransomware, a malicious software that can encrypt and control computer systems. Although authorities have not released broad statistics regarding trends, the FBI stated that these attacks are becoming “more targeted, sophisticated, and costly.”

Interestingly, before 2019, these attacks were known to target only businesses and individuals. Of late, Ransomware attacks on public-facing institutions is a growing concern. There is a significant threat to public safety, essential utilities, and the backbone of the economy of the city. According to a report by Emsisoft, a security firm, in 2019 Ransomware interrupted 911 services, delayed surgical procedures, and made it tough for emergency response officials to access medical files, scan employee badges, and view outstanding warrants. The report also suggests that in that year, 205,280 organizations submitted files that had been hacked in a Ransomware attack — a forty-one percent increase from the year before.

Slower than average adoption of new technology and a stagnant culture of trivializing cybersecurity are some reasons for the increasing vulnerability of public institutions. The abundance of personally identifiable information (PII) also make city services and hospitals big targets for such criminal activities. This was seen in the recent attack on New Orleans, which led the city to declare a state of emergency. What is worse is that even mitigation strategies such as buying cyber insurance can misfire and have a negative impact. Cyber insurance signifies larger anticipated ransoms. For example, last year, the Florida cities of Lake City and Riviera Beach paid ransoms of about $500,000 and $600,000, respectively. This has led many to emphasize the need to avoid paying ransoms to criminals in the event of an attack. According to data from Coveware, the average payment to release files spiked to $84,116 in the last quarter of 2019, more than double what it was the previous quarter. More so, in December 2019, this figure jumped to $190,946.

Along with entire city governments, several small businesses have suffered tremendous losses from recent Ransomware attacks. Concerns that many small towns in swing states will see more attacks by state-led actors in the wake of the Presidential election in November remain at large. Such attacks on smaller cities are a way to test systems, and motivations for these attacks are wider than mere extortion. However, it can only be hoped that attacks in the past serve as a reminder to enforce greater cybersecurity across public and private facing institutions in the United States.

Ransomware Attacks Grow, Crippling Cities and Businesses

The Wallstreet Journal ranked Austin, Texas as the top city for job market growth along with Nashville, Tennessee coming in at second place. Rankings were based on “the unemployment rate, labor-force participation rate, job growth, and labor-force growth and wage growth.” Apple and Amazon have made recent moves to the southern states, creating a growing number of technology jobs. Austin and Nashville are well known for their vibrant nightlife and great food, but now these two cities are luring young professionals away to begin their careers in places other than larger coastal markets.

In 2019, Apple began construction on a $1 billion corporate campus in Austin, Texas, demonstrating its commitment to expanding in the Lone Star State. In an article written by CNN, the campus “is expected to open in 2022, will initially house 5,000 employees, with the capacity to grow to 15,000. It will run on 100% renewable energy, including from solar power generated on-site, according to the company.” Amazon is also building a new campus which will spark more growth in Nashville due to the company’s goal of hiring 5,000 new employees.

According to the job market rankings, the Bay Area still sits among the top ten, but places like Austin and Nashville can be more attractive in some cases. One of the main differences between California and Texas, for example, is the cost of living. As of 2017 in Austin, “the median house price is $289,000 with a 3-year appreciation rate of 25.2%.” When young college graduates are making decisions on where to work, housing costs can play a major role in the decision-making process. In an article written by MarketWatch, other features luring people to the south are noted, such as “well-known universities…and an intangible cool factor.” Nashville has Vanderbilt University in the heart of the city and Austin is the home of the well-known University of Texas.

A lot of companies are moving to the south for many reasons. The San Francisco Business Times wrote an article stating, “the corporate exodus out of California is bad. It could get worse. There’s no plan to stop it – and the Lone Star State hopes there never will be.” Making the move to the country’s large cities like Austin and Nashville can have many more benefits than just escaping high taxes.

Austin, Nashville Rank at Top of Hottest U.S. Job Markets

President Trump signed the Tax Cuts and Jobs Act (TCJA) into law on December 22, 2017. The law brought about drastic changes to federal tax laws—so much so that the Act is recognized as the largest tax code overhaul in thirty years. American companies constantly pursue methods that allow them to pay taxes lower than 35%, such as using techniques like ‘Double Irish with a Dutch Sandwich.’ In order to tackle this, the law slashed taxes for big companies, aiming to induce them to invest more in the US rather than piling their profits in various tax havens. But no good deed goes unpunished. The budget deficit subsequently increased by more than 50%.

TCJA created a single corporate tax of 21%–as compared to the previous 35%–and  abolished the alternative minimum tax. Unlike tax breaks for individuals, these provisions do not expire.

Rather than paying their fair share of taxes, huge US companies move their profits to countries where tax rates are considerably lower, such as Luxembourg, Bermuda, and Ireland. Lawmakers came up with two tools to tackle this problem and to deter companies from moving capital offshore: the Base Erosion and Anti-Abuse Tax (BEAT) and the Global Intangible Low-Taxed Income (GILTI). BEAT aimed to impose an additional 10% tax on payments that companies send to their foreign affiliates. GILTI would apply a  10.5% tax on offshore earnings. But lobbyists got the best of lawmakers and shut down these proposals before they were ever enacted.

The first victory came for international bankers, who were trapped from all sides. American regulators require international banks to keep their American divisions sufficiently capitalized to sustain huge losses in the event of a crisis. To comply with these regulations, foreign branches of banks provide loans to American divisions, which incur interest. BEAT aimed to tax interest payments from American bank divisions to foreign branches. But Treasury Secretary Steven Mnuchin was successfully convinced by lobbyists to call off these tax impositions, and other major exemptions which were also granted to international banks.

Lobbying against GILTI proved to be equally fruitful. GILTI predominantly targeted tech and pharmaceutical companies, who rely on profits borne from patents. These companies sell their rights in patents to subsidiaries in low taxing countries. The subsidiaries then charge heavy licensing fees to American divisions, causing US profits to fall while tax haven profits rise. GILTI targeted companies that were using this tax loophole. Naturally, the companies responded. United Technologies, Anheuser-Busch, Comcast, and other giants dispatched lobbyists and demanded a “High-tax exception.” After only a few months of lobbying, the Treasury Department made an announcement in June 2019 that it would create the company-requested exception.

Now, two years after this intensive overhaul of federal tax law, the consequences are becoming vivid. While companies are still moving their profits to lucrative tax havens and enjoying profit hikes as a result of various tax cuts and exceptions, the government is collecting billions fewer from corporations. Indeed, the Organization of Economic Cooperation and Development observed that the United States experienced largest drop in tax revenues in 2018.

How Big Companies Won New Tax Breaks from the Trump Administration

The Washington Post in a recent article reported that Michael Bloomberg, a Democratic presidential candidate in the 2020 U.S. presidential primaries, recently announced a financial reform policy that subjects Wall Street to regulatory scrutiny. This policy, however, contradicts many of Bloomberg’s earlier statements in defense of Wall Street while he was mayor of New York.

On Tuesday February 18,  Bloomberg released a proposal that, if adopted, would reverse Trump’s policy to decrease equity levels in banks, toughen up stress tests, and reinstate financial institution’s annual living wills. Most notably, the proposal seeks to strengthen the Volcker Rule and introduce a financial transactions tax (“FTT”) to U.S. markets.

The Volcker Rule was established under §619 of the Dodd-Frank Wall Street Reform Act of 2010. The rule prohibits large commercial banks from using customer deposits to fund investments in hedge funds, private equity funds, and other trading operations. Moreover, the Volcker Rule requires that CEOs personally attest to their banks’ compliance. However, notwithstanding Bloomberg’s recent attempts to strengthen the Volcker Rule, Bloomberg publicly called the Dodd-Frank regulations “stupid laws” back in 2014. Clearly, the long-time New Yorker has undergone a change of heart.

As for the proposed FTT, according to Bloomberg’s proposal, the introduction of an FTT in the U.S. would “defray the costs of overseeing markets” and “address other social needs,” as seen in other global financial centers such as the United Kingdom and Hong Kong. In addition, Bloomberg’s proposal cites a 2015 paper issued by the Urban-Brookings Tax Policy Center that found that the tax burden from an FTT would fall on high income households. As for implementation, the FTT would be set at 0.1% for every stock or bond traded and phased in gradually, starting at 0.02% to minimize unintended consequences. According to Stu Loeser, a senior adviser for the Bloomberg campaign, Bloomberg initially objected to an FTT because he worried that if the U.S. was the only country adopting an FTT, the financial industry would migrate outside of U.S. borders. However, since then, the U.K. and Hong Kong have implemented an FTT. This, according to Bloomberg, has assuaged his prior concerns.

Nevertheless, the proposed introduction of an FTT is not without criticism. For example, the U.S. Chamber of Commerce in September 2019 released a report arguing that the FTT would be paid by ordinary retail investors attempting to save for their retirements and FTTs in other countries raised less revenue than expected. Nevertheless, the suggested strengthening of the Volcker Rule and introduction of an FTT signals a change of heart in the former New York republican mayor.

Bloomberg’s Plan to Crack Down on Wall Street Indicates a Change of Heart

A recent survey shows that Americans think this is the best economy since the 1990s. Fifty-nine percent of Americans state that they are financially better off today compared to where they were a year ago. Nearly three-quarters of people predict that their financial situations will become even better one year from now. This survey is not an isolated case. Many other polls and surveys show that Americans have been more optimistic about their personal financial situation and the economy as a whole since the last presidential election. This overall optimism is important for the U.S. economy because it motivates consumer spending and business expansion.

Despite the optimism, the United States has a smaller share of adults who participate in the workforce compared to other developed countries. Statistics show that only eighty-three percent of American adults in their prime worker years (age 25 to 54) are participating in the workforce, which means they are currently working or actively looking for a job. The percentage has gone up since the past few years, but it is still below the levels of the late 1990s. It is also well below the percentages in other developed countries like Germany, Japan, France, Canada and the United Kingdom. Economists said that this held the nation back because the economy and wages could have grown faster if more people were working.

In the last few weeks, Federal Reserve Chair Jerome H. Powell responded to inquiries regarding this problem. When Sen. John Neely Kennedy, a Republican from Louisiana, asked whether “the richness of our social programs” makes people less willing to enter the workforce, Powell dismissed that idea. Powell stated that the amount of benefits people can get in real terms, adjusted for inflation, has actually declined during the period of declining labor force participation. “It isn’t better or more comfortable to be poor and on public benefits now, it’s actually worse than it was,” Powell said.

The vast majority of economists across the political spectrum agree with Powell. Since the major effort to revamp welfare in 1996, it has been harder for people who do not participate in the workforce to receive benefits from the government. Instead, the government has been focusing on subsidizing people who go to work or at least actively look for a job since the 1990s. For example, the government expanded tax credits for people who at least have some income by working. The Earned Income Tax Credit (EITC) is mostly available after people start to have taxable employee compensation or earnings from self-employment. Passive income such as interest and dividends or benefits such as social security do not count.

Powell’s statement is also supported by a 2018 analysis conducted by economists Hilary Hoyne (University of California at Berkeley) and Diane Whitmore Schanzenbach (Northwestern University). The analysis showed that spending on social safety net for children is no longer going to families at the very bottom. Almost all gains in spending has gone to families with earnings or with income above the poverty line.

Another research conducted by the Center on Budget and Policy Priorities indicated that labor force participation rate has increased in many European nations that have more generous safety nets during the same period. Therefore, being more generous to people does not necessarily lead to less willingness to participate in the workforce.

So what is actually preventing American adults from entering into the workforce? Powell said it could be a combination of many factors including the decreasing education attainment rate among the lower- and middle- income population and opioid crisis. More research and surveys should be done in order to look deeper into this problem.

Is Social Welfare Stopping American Adults from Entering the Workforce?

Executive Vice President at the European Commission for “a Europe fit for the digital age,” Margrethe Vestager, announced the European Union’s “digital strategy” in late February, prompting executives at U.S. tech giants, like Facebook and Google, to express both support and concern over the potential effects of the plan. The unveiling of the plan comes as the U.S. and China lead the pack in investing in innovative technologies like artificial intelligence and signals a desire for Europe to carve out a space in the data-driven technology race.

Broadly speaking, the digital strategy aims to provide the European business world with the room to build innovative companies alongside and in fair competition with existing giants, as well as to allow technological innovation to drive public policy making.

“Currently, a small number of Big Tech firms hold a large part of the world’s data,” the paper reads, which “could reduce the incentives for data-driven businesses to emerge, grow and innovate in the EU today, but numerous opportunities lie ahead.”

The plan aims to both promote local innovation across sectors, as well as to regulate data-supported technologies like artificial intelligence, which may pose potential risks to privacy.

The European commission is taking a markedly different approach to digital innovation than the United States, where private, deep-pocketed Big Tech has driven development, and China, where the government has heavily subsidized investment in artificial intelligence. Notably, concerns over individual rights to privacy in the wake of this technological development have emerged in the U.S., where individuals grow wary of unregulated companies like facial recognition startup, Clearview.ai.

The European Commission plans to implement a protective stance ahead of the technological tide. This sentiment echoes that of the conversation surrounding the Commission’s General Data Protection Regulation (GDPR), implemented in 2018, which affected U.S. tech companies’ compliance teams across the board. Given the effect of that bill, it’s not surprising that tech giants are concerned about the potential ramifications of a plan that hopes to de-monopolize data access.

Europe’s Push For Democratized Innovation Rattles Big Tech