Constitutional Law Prof Blog

Beauty and Equality: Saturday Evening Review

Appearances are not merely a matter of aesthetics, but also of law and politics.  That's the argument of Deborah Rhode in The Injustice of Appearance, 61 Stanford Law Review 1033 (2009).

 

After documenting the emphasis on attractiveness, including matters of weight, Rhode tackles the legal arguments.  She states that the "clearest argument for banning discrimination based on appearance is that it offends principles of equal opportunity and individual dignity."  Id. at 1048.  Additionally, another

reason for prohibiting discrimination based on appearance is that it reinforces group disadvantages. As constitutional scholars including Cass Sunstein and J.M. Balkin have argued, practices that systematically stigmatize and subordinate groups prevent members from developing their full capacities. The perpetuation of hierarchies also jeopardizes perceptions of fairness and legitimacy on which well-functioning democracies depend. Like many other forms of discrimination, prejudice based on appearance compounds the disadvantages of already disadvantaged groups, particularly those based on class, gender, race, ethnicity, disability, and sexual orientation.

Id. at 1052.  Her third and final rationale supporting the argument for prohibiting appearance discrimination is "that it restricts individuals’ right to self-expression."  Id. at 1058.   One of her arguments refuting criticisms is that there is an

assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritism—the preferences that individuals feel for those who are like them in salient respects, such as race, sex, and ethnicity—are also deeply rooted.  Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, was built on the assumption that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. A half-century ago, a majority of Americans surveyed thought that the Supreme Court’s ruling in Brown v. Board of Education prohibiting school segregation had “caused a lot more trouble than it was worth.” Today, only 11% share that view and  the ruling is widely regarded as one of the Court’s finest moments.

Id. at 1069-1070 (citations omitted).  Rhode's point is that law can affect societal change (and she provides other examples).  She is not arguing that appearance should be a suspect or even quasi-suspect classification for equal protection purposes.  However, she does provide a concluding section on "Directions for Reform," including a research agenda and calls for activism, including state and local action.

I first saw a mention of this article on Feminist Law Professors in an entry from Ann Bartow.  Thanks to Ann, I've read an engaging thought-provoking piece.  And it might even be the basis of a Constitutional Law hypothetical in next week's class.

RR 

The Constitutionality of the current Health Care proposal

    On Saturday, the Washington Post ran an op-ed by attorneys David Rivkin and Lee Casey that challenged the constitutionality of the current health care reform proposals.  The authors conclude that requiring each American to purchase health insurance would violate the Commerce Clause.  In support of this argument, the authors review current Supreme Court case law on the Commerce Clause, stating:

Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

    As expected, these passages generated a response in the blogsphere.  Jonathan Adler of the Volokh Conspiracy states:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.

Jack Balkin of Balkinization and Calvin Massey of the Faculty Lounge* are similarly unconvinced.  

    After reflecting on the case law, I agree with the Adler/Massey/Balkin formulation for several reasons. First, I think that Professor Adler correctly asserts that in Gonzales v. Raich, the Court made clear that the Commerce Power extends to the power to regulate markets.  Justice Stevens stated, "[W]hen a general regulatory scheme bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence."  The opinion goes on to say, "[W]e have no difficulty concluding that Congress had a rational basis for beleiving that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the [Controlled Substances Act].  These words seem to leave little to interpretation.  In fact, in dissent, Justice O'Connor interpreted the majority's opinion in the same manner.  Thus, the regulatory scheme argument seems logical and sound. 

    Second, Rivkin and Casey may be overselling the non-economic quality of the decision not to purchase health care.  While Rivkin and Casey are clearly well-versed in the relevant cases, it appears that some critical portions of those cases are omitted from their reasoning.  For instance, Lopez and Morrison do stand for the proposition that the Congress should use its Commerce Clause power primarily to regulate economic activity.  However, the authors mention, but seem to discount, the breadth of the definition of "economic" provided in the Gonzales case.  In her dissent, Justice O'Connor stated, "The Court's definition of economic activity is breathtaking.  It defines as economic any activity involving the production, distrubution, and consumption of commodities . . . [T]he Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal reach." Thus, after Gonzales, we still have a Commerce Clause jurisprudence that favors economic activity.   However, as pointed out by Justice O'Connor's dissent, the definition of economic is now so broad that the number of activities coming within its ambit has been increased, rather than decreased.  Since health insurance is certainly a commodity, it stands to reason under our new, broader difinition, that Congress can regulate the "production, distribution, and consumption" of said commodity, even where a person may not wish to become a consumer.  In other words, if Congress can regulate the purchasing of goods, it should be able to regulate their non-purchase, as Professor Balkin suggests.  To suggest otherwise would not only invite a sort of tortured logic, but would overlook the spirit of cases such as Wickard, a spirit which was soundly reaffirmed by the Gonzales majority.  Thus, I believe an argument can be made that even the non-purchase is an economic act able to be regulated by Congress.

    Finally, it is worth noting that the Court's decision in Morrison is broader that Rivkin and Casey's analysis admits.  Though the Morrison court was careful to state that gender violence was not an economic activity, Chief Justice Rehnquist went on to state, ". . . we need not adopt a categorical rule against aggregating the affects of any non-economic activity . . ."  Here, the Court left an opening, realizing that a fact pattern could occur which might allow for the aggregation of non-economic activity.  Assuming (contrary to my prior paragraph) that a refusal to purchase health care is a non-economic decision and the regulatory argument does not work, the game might not be over.  An individual person's decision not to purchase healthcare might not be regulable on its own.  But in the aggregate, that person's choice would obviously affect the interstate healthcare market.   Due to the strong, strong connection between the refusal to purchase health care and interstate commerce (something sorely lacking in both Lopez and Morrison), if there were a case for arguing for non-economic aggregation, this would seem to be a perfect test-case.  

    We will keep you posted of any further developments on this issue. 

NLS    

* Full disclosure:  I guest blog from time to time at the Faculty Lounge, where Prof. Massey is a featured blogger.

UPDATE (9/3/09) - After posting this, I was alerted to a response to Rivkin and Casey by Mark Hall, Professor of Law and Health at Wake Forest University.  Professor Hall is a member of the O'Neill Institute for National and Global Health Law at Georgetown University Law Center.  Professor Hall agrees that the individual mandate is constitutional for two essential reasons.  First, he asserts that the law is within Congress' commerce power, and even if this were not so, since the mandate will be enforced through the taxing and spending power, it is nevertheless constitutional. Second, Professor Hall argues that when individual rights are discussed, the Court is usually discussing fundamental rights. However, as he notes, "there is no fundamental right to be uninsured."   Professor Hall has also authored a full piece on the subject.  Please add these papers to your reading list on this topic.    

Congressional Participation in the Reagan Centennial Commission

The Office of Legal Counsel recently posted its April 21, 2009, analysis and advice on the question whether congressional seats on the Ronald Reagan Centennial Commission violated the Appointments Clause, the Ineligibility Clause, and separation of powers.  The memo itself is unremarkable, but its analysis is reflected in President Obama's signing statementon the Act, specifically disavowing the Act's plain intended role for congressional members of the Commission. 

If ever a signing statement were appropriate, this may be it.  The statement is plain and transparent.  The President reported his objections to Congress.  The statement promotes the congressional purposes of the Act, while carefully carving out its obvious constitutional problems.  And given the nature of the Act, nobody is likely to object. 

But still, the timing of the OLC opinion (after House passage, but before the first reading in the Senate--presumably with time to amend the Act, as recommended by the OLC) raises the core question about Presidential signing statements: Should a President unilaterally rewrite portions of legislation that passed both houses of Congress?

The Commission, established by Pub. L. 111-25 and which includes members of Congress appointed by congressional leaders, shall

(1) plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;

(2) provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;

(3) develop activities that may be carried out by the Federal Government to determine whether the activities are fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; and

(4) submit to the President and Congress reports [on the Commission's activities].

The OLC opined that Commission members are "officers," and that congressional appointment therefore violates the Appointments Clause.  And because congressional members would be both members of Congress and officers "under the Authority of the United States," the Act violated the Ineligibility Clause.  Finally, congressional members would have important executive functions under the Act--a violation of the anti-aggrandizement principle.

OLC recommended amending the Act to give the Commission authority merely to advise and recommend activities to an executive officer--a plain and simple recommendation before the bill even received its first reading in the Senate.  But the OLC's suggestion did not work its way into the final version passed by both houses and signed by the President.  Instead, the President, President Reagan's signing statement on a similar commission in 1983, wrote,

I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibiliity Clauses of the Constitution.

The statement is transparent, pragmatic, even quite useful in promoting the broader goals of Congress in creating the Reagan Commission.  But it also perpetuates the practice that a President can unilaterally rewrite legislation merely by claiming a constitutional objection upon signing.

SDS

Administration to Continue Extraordinary Renditions

The Obama administration plans to continue to use extraordinary renditions but pledges to monitor them closely to ensure that the rendered aren't tortured, reportsthe NYT.

But if the administration has its way, we'll never know if rendered detainees are tortured, or whether they're rendered at all.  That's because the administration has adopted the Bush administration position in the extraordinary rendition cases that the state secrets privilege prevents the courts from hearing claims by formerly rendered plaintiffs.  Under the administrations' view, the courts must dismiss these cases on the complaints, because the government can't even acknowledge the existence (or not) of the program.  The Obama administration reiterated this position in the Ninth Circuit case Mohammed v. Jeppesen Dataplan and challenged the panel ruling rejecting its claim.  That challenge is now pending.  (More here.)

The statement by administration officials that the Obama administration will continue the program seems to fly in the face of its assertions before the Ninth Circuit that the program is so secret that it cannot even answer a complaint.

The statement came the same day that AG Eric Holder appointed a prosecutor to examine CIA abuses of detainees, as described in the just released 2004 CIA Inspector General's report.  Holder is apparently interested in pursuing only those who acted outside of the OLC's legal advice (which itself gave a broad license to interrogators). 

SDS

Conference Annoucement - LatCrit XIV

Mark your calendars for the LatCrit XIV Conference.  This year's conference is hosted by the American University Washington College of Law and will take place from October 1st through October 4th, 2009.  As is tradition, the LatCrit/SALT Junior Faculty Development Workshop will be held from October 1st-October 2nd. 

 

The theme for this year's theme is "Outsiders Inside: Critical Outsider Theory and Praxis in the Policymaking of the New American Regime."  Panels include "Reconnecting Political and Civil Rights with Economic Justice," "Diversity, Corporate & Financial Law, and the Subprime Debacle," and "In Search of a Wise Latina: A Discussion on The Nomination and Confirmation of the First Latina Supreme Court Justice."

 

The conference registration deadline is September 14^th; however, the deadline for the "early bird" hotel discount (which is at least $40 below the hotel's standard rate) is September 7th (Labor Day).   The full conference program is available here.  The registration information is available here.  

 

NLS

In case you missed it . . . the "Welcome Back" Edition!

Hello Law Profs (and other readers!).   As we all know, some stories generate sustained media attenion while others fly under the radar.   Here is a list of cases you may have missed.  It is my hope that these cases will help your transition into the school year.

Standing

In late July, the D.C. Circuit issued a case on standing.  The plaintiffs, a conservative foundation committed to promoting patriotism, sued the Secretary of Defense to compel the University of California Santa Cruz to comply with the Solomon Amendment.  Judge Ginsberg ruled that the plaintiffs lacked standing, and particularly, had not presented evidence to prove that a favorable decision would redress the plaintiff's alleged injury.   As the opinion focuses heavily on the redressibility prong - which is sometimes slighted by casebook authors - a professor might wish to use the case as a hypo on this prong in class.

 

Preemption

In mid-August, The Third Circuit issued its opinion in Holk v.Snapple Beverage Corp.  (My preliminary analysis of the case at the hearing stage is here.)  The plaintiff filed a class action suit including state law claims alleging that a number of statements on Snapple’s labels - including the phrase "all natural" - were misleading.  The defendant claimed that plaintiff's claims were pre-empted by federal labeling laws.  The Third Circuit disagreed, ruling that federal law presented no obstacle to the state law claims.   Overall, the case discusses each type of preemption thoroughly and would be  good fodder for class discussion for that reason.  Moreover, with the movement in this area recently (see Wyeth, et al.), those writing in the area will want to take note. 

Equal Protection Issues

Death Penalty -  North Carolina recently passed the "Racial Justice Act."  The Act would allow criminal defedants in death penalty cases to introduce statistical evidence to prove racial discrimination influenced the decision to seek or impose the death sentence.   If the defendant sucessfully carries the burden of proof, the death sentence may be vacated.  Clearly, this statute would be relevant to any discussion of McClesky v. Kemp and related cases.  Moreover, this case is a great example of how the federal constitution provides a floor, not a ceiling, where certain rights are concerned.  More background on the movement leading to act can be found here.

Jury Selection - Feminist Law Professors has a wonderful piece by Colin Miller that explore the gap between Batson and J.E.B.  In short, can a litigant strike a woman of color based on the intersection of her race and gender?  A Mississippi court recently confronted with the issue in Ross v. State.  Ross, an African American female defendant, complained that the prosecution struck all of the African American women from the panel.   The court discussed various issues, but did not resolve the Batson/J.E.B. issue.  Professor Miller takes the courts to task and effectively says, "Resolve the issue already!"   He asserts that while pre-J.E.B. cases may have been justified in their reluctance to find a Batson violation on a race/gender dyad, post-J.E.B., there is little justification for premitting strikes which are predicated on both race and gender.   The entire piece is well worth the read.

Fundamental Rights

The ACLU has filed an amicus brief in a Florida case.  At issue is whether the Florida State Constitution will permit the state to confine a woman to ensure she receives medical care during pregnacy.  While the arguments focus primarily on Florida Constitutional law, important cases on reproductive rights such as Roe, Casey, and Stenburg. 

That's it for this installment.   Have a great school year!

NLS   

Jawad Released from Guantanamo, Transferred to Afghanistan

The U.S. Department of Justice announced today that the government transferred Mohammed Jawad from Guantanamo Bay to Afghanistan.  At the time of his detention, Jawad was the youngest detainee at Guantanamo.  The government held him for over seven years before he got caught between the Bush administration's military commission system and the Obama's administration's efforts to revamp it.  Last month, Judge Huvelle (D.D.C.) lambasted the government for its treatment of Jawad at a hearing in his habeas case.  (I posted on the extraordinary hearing here.)  Most recently, the government filed a notice that it would no longer treat Jawad as detainable.

SDS

Miller's Legal Educator Blog Census

Professor Colin Miller (John Marshall, Chicago) recently posted his 2009 Legal Educator Blog Census on the Evidence Prof Blog.  Miller's Census picks up where Prof. Daniel Solove (GW) left off and tell us "which legal educators are blogging and where the blogosphere is headed."  Check out this excellent resource.

SDS