Saturday, September 26, 2009

The Constitutional Rights of the Elderly: Saturday Evening Review

A person's constitutional rights may be curtailed simply because she or he attains the age of sixty-five. 

This is the startling conclusion of Outliving Civil Rights, 86 Washington University Law Review 1053 (2009), by Professor Nina Kohn (pictured below) of Syracuse University College of Law. 


Kohn argues that although well-intentioned, state statues meant to protect the elderly have "serious —and potentially unjustifiable—civil rights implications for the seniors they are designed to protect."   She contends that some state actions

limit older adults’ substantive due process rights by criminalizing certain forms of consensual sexual behavior; others undermine older adults’ informational privacy rights by requiring the doctors, attorneys, priests, or other confidants to report suspected abuse or neglect to the state. 

Kohn compelling argues that Lawrence v. Texas should be applicable to statutes which prohibit elder sexual "abuse."  (at 1094).  She is arguing, of course, that the definition of "abuse" is overbroad and includes much consensual activity. "Criminalizing consensual sexual conduct by the aged or frail is also [as in Lawrence] demeaning and stigma-creating. Already, older persons find themselves stereotyped as sexless. Indeed, sexual activity by older adults is apt to be perceived as abnormal or even pathological."  She continues:

Laws that criminalize sexual activity with older adults—laws that deem their sexual partners to be felons— further entrench this stereotype of sexuality on the part of older people as perverse.  

Elder sexual protection statutes also create collateral consequences that are analogous to those that burdened the liberty interests of Texas homosexuals in Lawrence. Persons convicted under the Texas anti- homosexual conduct statute faced collateral consequences, including inclusion in criminal registries and negative consequences for future employment.  Collateral consequences are also significant in elder abuse cases, although somewhat less direct. Persons convicted of sexual abuse of older adults are increasingly likely to be barred from working with or caring for the elderly. The “abused” adult may face unwanted protective action such as involuntary isolation from the “abuser” or involuntary removal from a shared accommodation with the “abuser.” In addition, as discussed earlier, persons investigated as victims of elder abuse are highly likely to be institutionalized as a result and are also at disproportionate risk of having their right to make personal choices eliminated through the imposition of a guardianship.

(at 1098).

Kohn makes clear that her ultimate objective is less a blueprint for constitutional challenges to elder-protection laws than a rethinking of the paternalistic approach of such laws.  She notes that elder abuse laws have most often been modeled on child-abuse laws (at 1108).   (And while the courts have been explicit about the lesser constitutional rights of minors, they have not been willing to generalize substandard constitutional status for the elderly).  She suggests that a better model is domestic violence. Id.  (Although it might be argued that violence against women policies have not always accorded women full constitutional status).


September 26, 2009 in Disability, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Privacy, Scholarship, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, September 25, 2009

Sotomayor's first interview

On C-Span on video here.  The newest Justice describes the call from President Obama, the drive to Washington, D.C., and preparing for her first speech.

Picture 3


September 25, 2009 in Current Affairs, News | Permalink | Comments (0) | TrackBack (0)

Is an Individual Health Insurance Mandate Constitutional?

David Rivkin and Lee Casey this week argued in a Wall Street Journal opinion piece that the mandatory insurance provision in Senator Baucus's health reform bill is unconstitutional. 

The argument goes like this: 

1.  Congress lacks authority under the Commerce Clause to require individuals to purchase insurance, because a "health-care mandate would not regulate any 'activity.'"  The authors reference United States v. Lopez and Gonzales v. Raich.

2.  Because Congress can't do it under the Commerce Clause, Baucus (and other supporters of an individual mandate) have called it a tax.  (Baucus's bill refers to the penalty for failure to insure an "excise tax," to be administered and collected by the IRS.)

3.  But this "excise tax" is plainly a penalty, pushing the bounds of the Supreme Court's Taxing Clause jurisprudence.  The authors:  "The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care."

The authors are wrong on two counts.  First, an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority under Raich, Lopez, and United States v. Morrison.  These cases allow Congress to regulate activities that have a "substantial effect" on interstate commerce, and they look to the commercial nature of the activity and to the connection between the activity and interstate commerce (among other considerations).  An individual mandate is almost surely commercial in nature--in requiring folks to buy health insurance, it requires a commercial exchange.  Rivkin and Casey argue that the mandate is not commercial in nature, because it's triggered simply by "being an American."  This may be true, but it misses the point of the regulation: It requires Americans to engage in a commercial exchange.  This is the definition of commerce.

Moreover, the individual mandate is closely related to interstate commerce.  The whole argument for an individual mandate is to get health care consumers to internalize their costs, and not spread them to the larger interstate economy.  A health insurance mandate is almost certainly within Congress's Commerce Clause powers, whether Congress calls it an "excise tax" or something else.

Second, Rivkin and Casey misunderstand the Taxing Power.  Congress can adopt an excise tax to an end that is within its other constitutional powers, as here.  But even if Congress is acting outside its other articulated powers, the Court has interpreted the Taxing Power quite broadly, all but eliminating any distinction between a "penalty" and revenue-producing "tax."  See United States v. Kahriger (upholding a federal tax on gambling under Congress's Taxing Power) (overturned on other grounds).

The Supreme Court may be on a path to limiting congressional authority under the Commerce Clause, the Taxing Clause, or any clause.  But even so, the individual mandate all too squarely falls within the recent and settled jurisprudence. 

We've posted on similar constitutional issues in the health care reform debate here, here, and here.


September 25, 2009 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (32) | TrackBack (0)

Thursday, September 24, 2009

The "New" State Secrets Privilege: What Changed, and What Didn't

Attorney General Eric Holder yesterday announced new policies and procedures for the administration's invocation of the state secrets privilege.  The DOJ press release is here; Holder's memo for department heads is here.  (Thanks to Walt Kendall for the heads-up.)

Recall that the Obama administration surprisingly reasserted the same sweeping state secrets privilege that the Bush administration asserted in the Ninth Circuit case challenging the former administration's extraordinary rendition program, Mohammed v. Jeppesen Dataplan, Inc. The administrations intervened in the case to move for dismissal on the pleadings, asserting that the state secrets privilege--a constitutional privilege, they argued, and not a mere evidentiary privilege--prevented the courts from entertaining the complaint.  When a three-judge panel of the Ninth Circuit ruled against the Obama administration this spring, the administration filed for en banc review.  (My interview with Mohammed's ACLU attorney Ben Wizner is here.)

The administration has asserted or reasserted this version of the privilege in about a dozen cases.  (Here's my post on one.)  Congress had its own ideas, here and here.

In the wake of all this, Holder's memo yesterday sought to rein in the government's use of the privilege.  Holder's memo establishes new internal procedures for DOJ review of administration assertions of the state secrets privilege, sets a new standard for internal review, and specifically rules out the use of the privilege in certain circumstances. 

More particularly, the memo requires the assistant AG to recommend invocation in any particular case, a review committee to approve that recommendation, and then the AG to sign off.  (This is presumably in addition to the asserting agency head sign off, under U.S. v. Reynods.)  The memo also says that the DOJ will defend an assertion only after a "sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense or foreign relations."  And the memo rules out assertions to conceal illegalities, to prevent embarrassment, to restrain competition, and to prevent delay of information that would not cause harm to national security.  Finally, the memo provides for regular reports to Congress on assertions of the privilege.

But the memo doesn't specifically back off the administration's re-assertion of the Bush administration argument that the privilege has a basis in the Constitution--that it's compelled by separation-of-powers principles and by the president's Article II authorities.  This extraordinary and novel claim, argued the Bush and Obama administrations in the Mohammed case, elevated the privilege to constitutional status and insulated it from judicial review.  Under this view, the administration alone could assert the privilege to dismiss a case on the pleadings, and the court couldn't even second guess the assertion. 

Holder's memo does not disavow this position.  If anything, it supports it.  The memo focuses on "information" dangerous to national security--and not "evidence" dangerous to national security--thus suggesting that Holder views the the privilege as something more than a mere evidentiary privilege (as in U.S. v. Reynolds).  That "something more," supported by both administrations in Mohammed, was a categorical constitutional privilege, as suggested by Totten v. United States.  The administrations have used the Totten version of the privilege as the basis for motions to dismiss on the pleadings.  (For more on this, see my postwith my interview with Ben Wizner.) 

Moreover, the memo rules out seeking full dismissal of a case "when doing so is necessary to protect against the risk of significant harm to national security."  But this should always have been the administration's standard for moving for complete dismissal of a case.

Holder's memo represents a significant change in the procedures and internal checks on the government's assertions of the state secrets privilege.  It also includes a new, meaningful oversight role for Congress.  But less clear is what, if any, substantive changes it reflects in the administrations' most sweeping position on the privilege--that it has a constitutional (and not merely evidentiary) basis.


September 24, 2009 in Executive Authority, News, Recent Cases, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 23, 2009

Senate Vacancies and the 17th Amendment

A group of Illinois voters last week argued their case to the Seventh Circuit that Illinois law providing for the appointment by the governor of a person to fill a vacant U.S. Senate seat runs afoul of the Seventeenth Amendment.  The oral argument, about 33 minutes, is here.

The case arose in response to former Governor Blagojevich's appointment of Roland Burris to fill out Barack Obama's Senate term.  (I posted on this at the time here, here, here, and here.)  Blagojevich appointed Burris pursuant to Illinois law, which states:

When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

10 ILCS Sec. 5/25-8.  Governor Quinn, Blagojevich's replacement, made no attempt to revoke or alter the appointment, and he didn't call for a special election.  Indeed, under the plain language of 5/25-8, the next election would be in November 2010--the "next election of representatives in Congress," and, coincidentally, the date on which Obama would have faced re-election (because his term ended in 2011).

Plaintiffs in Judge v. Quinn argued that Illinois law violated the Seventeenth Amendment, which states:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

U.S. Const. Amend. XVII.  The plaintiffs argued that Illinois law failed to provide for a special election to fill the rest of Obama's term.  The regular election next November doesn't qualify, they argued, because that election is the regular election for the Senate seat.  (Curiously, they argued that a special election on election day 2010, right along with the regular election, would satisfy their demands.  Illinois used a similar special election in the primaries to replace former House Speaker Dennis Hastert when he resigned.  But it's not clear what plaintiffs would gain from this process.)  Plaintiffs argued that their position is most consistent with the spirit of the Seventeenth Amendment, which, they say, is that the people should elect their (regular) Senator, even if the legislature may authorize the governor to appointment a (temporary) Senator. 

Judge Grady (N.D. Ill.) rejected the claim and ruled on the plain language and earlier interpretations of the Amendment that Illinois's procedure "does not violate plaintiffs' right under the Seventeenth Amendment to vote in the direct election of their Senator."  (Grady examined Valenti v. Rockefeller, the case dealing with New York's procedure for filling the vacancy created by Senator Robert Kennedy's assassination.  A three-judge panel upheld New York's procedure--which was similar to the Illinois law--and the Supreme Court summarily affirmed, without an opinion.  Grady held that Valenti and cases interpreting it "squarely contradict plaintiffs' textual interpretation, pursuant to which they argue that Illinois cannot "forgo a special election in favor of a temporary appointment." (citations omitted, emphasis in original).)

Massachusetts handled things differently.  That state set a special election for January 19 (with primaries on December 8) to replace Senator Kennedy.  The Massachusetts legislature just today passed legislation providing for gubernatorial appointment of a Senator until that time.  (The Massachusetts House passed a resolution conveying its sense that the appointee should not run in the January 19 election.)

Is the Massachusetts procedure, providing for a true special election by the people, more consistent with the text and purpose of the first clause of the Seventeenth Amendment?  Perhaps.  But this isn't to say that Illinois's procedure violates the Seventeenth Amendment.  On the contrary, Illinois is well within the plain text and scant judicial interpretations of the second clause of the Seventeenth Amendment.  The Judge plaintiffs' concession that even a special election on election day 2010 (right along with the regular election), and two years after the vacancy, illustrates their extreme position based on a strained reading of the text.


September 23, 2009 in Interpretation, News, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 22, 2009

New York Lt.-Governor Appointment now ruled CONSTITUTIONAL

The New York Court of Appeals (New York's highest court) has ruled today by a vote of 4-3 that Governor Paterson's appointment of a lieutenant governor is constitutional, opinion available here.  The Court is reversing the lower court opinion holding the appointment unconstitutional (our previous discussion here).


September 22, 2009 in News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, September 21, 2009

Undoing Iqbal

Tony Mauro at the National Law Journal reports today that plaintiffs' groups are moving to reverse Ashcroft v. Iqbal, last term's decision holding that complaints must allege more than mere "threadbare recitals of the elements of a cause of action" to survive a motion to dismiss. 

Iqbal involved a former detainee's Bivens claims against former AG John Ashcroft and FBI Director Robert Mueller for constitutional torts while in custody.  (I originally posted on the case here.)  The ruling meant that plaintiffs faced, in effect, a heightened pleading standard, and federal courts dismissed a slew of cases on "Iqbal motions."  In one notable case just this month, however, the Ninth Circuit ruled that a plaintiff sufficiently pleaded facts to sustain an Iqbal motion in a case against former AG Ashcroft for indefinitely detaining him in violation of the federal material witness statute.

Mauro reports that plaintiffs' groups are looking to Congress (in Senator Specter's legislation with the title that speaks for itself, "Notice Pleading Restoration Act of 2009") and the Judicial Conference Advisory Committee on Civil Rules (with the argument that the Court mucked up the FRCP, and the Committee should set them right).


September 21, 2009 in Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, September 20, 2009

State Constitutional Open Courts and the Limits of Medical Liability Reform

The President famously announced last week in his healthcare address to a joint session of Congress that he would order the Agency for Healthcare and Research Quality, a division of the Department of Health and Human Services, to support state demonstration projects on medical liability reform.  The initiative appears to be an attempt to reach across the aisle to Republican opponents of the President's plan, who have argued that medical liability reform--or "tort reform"--is an essential part of any healthcare reform plan.  The President's memo for the Secretary of HHS is here.

On the very same day last week that the President sent his memo to the Secretary, the Supreme Court of Washington issued an opinion reminding us that whatever the federal government may support, there still may be some limits on medical liability reform.  Particularly, state constitutional "open courts" provisions may restrain some states in "demonstrating" their reforms.

"Open courts" provisions simply say that courts must be open and available to litigants.  Maryland's open courts provision, one of the earliest, is typical:

That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.

At least forty state constitutions have such a clause; they trace their roots directly to Magna Carta.  (The federal constitution, of course, does not have an explicit open courts clause.  But courts often look to the open courts language in Marbury v. Madison as a sign of federal constitutional protection: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection.")  State courts by and large have interpreted open courts provisions to mean that the legislature can't curtail state court claims that existed at the time of the adoption of their state's provision.  That principle seems clear enough, but these provisions get interesting against the myriad particular (and often slight, but significant) ways that states encroach on access.  (Shameless self-promotion: For more on open courts and access to justice, see my 2007 piece on open courts and the right to counsel.)

Open courts jurisprudence is notoriously muddled.  But there is one consistency:  Open courts attacks on state medical liability reform and, more generally, tort reform--strict damage caps, short statutes of limitations, and the like--have mostly failed. 

This may be all the more reason to pay attention to Washington's ruling.

Washington required plaintiffs in medical malpractice claims to file a "certificate of merit" prior to initiating suit.  The state supreme court held that this violated the state's constitutional open courts principles.  The analysis is remarkably short; it begins with the Marbury quote above, and continues:

The people have a right of access to the courts; indeed, it is "the bedrock foundation upon which rest all the people's rights and obligations."  This right of access to courts "includes the right of discovery authorized by the civil rules."  As we have said before, "[i]t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff's claim or a defendant's defense."

Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to the courts.  Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims.  Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed.  Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts.  It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people.  Accordingly, we must strike down this law.

(Citations omitted.)

There's certainly nothing unconstitutional (federal) about the federal government funding state demonstration projects related to medical liability reform.  But unless the President's demonstration program includes a preemption provision--which would seem both unlikely (because the whole point is to support new state laws experimenting with reform) and extraordinary (because it could only be designed to impede state constitutional rights that might get in the way of state reforms)--states are still bound by their constitutions.  The Washington Supreme Court's ruling is a healthy (pardon the pun) reminder that state constitutional rights are still relevant and may play an important role in state reform efforts.


September 20, 2009 in Federalism, Fundamental Rights, News, Preemption, Recent Cases, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)