Saturday, July 24, 2010

Arizona HB 2013 Likely Unconstitutional: Federal Court Orders State Employee Benefits for Same-Sex Domestic Partners

With all the attention to the constitutional challenges to Arizona SB 1070 on immigration, it would be easy to miss a federal district court decision granting a preliminary injunction against another recently passed Arizona statute signed into law by Governor Jan Brewer: HB 2013.   

Animated-Flag-Arizona Yesterday, US District Judge John Sedwick denied the government's motion to dismiss and granted the plaintiff's motion for a preliminary injunction to prevent the enforcement of HB 2013, also known as Section O.  

Previous to Section  O, same-sex and opposite-sex partners of state employees were eligible to be covered under state benefits assuming domestic partnership requirements were met.  Section O, however amended the benefit eligibility scheme so that "‘dependent’ means a spouse under the laws of this state, a child who is under nineteen years of age or a child who is under twenty-three years of age and who is a full-time student.”   As the judge explained:

Section O eliminates family coverage for non-spouse domestic partners, whether they are of the same or different sex. Heterosexual domestic partners may continue to receive subsidized family health coverage by getting married. Same-sex couples are precluded from obtaining coverage because Section O limits coverage to “spouses” under the laws of Arizona.

The judge rejected the state's argument that Section O was neutral, but held that it made a classification based on sexual orientation: "Section O unquestionably imposes different treatment on the basis of sexual orientation,”  and "denies lesbian and gay State employees in a qualifying domestic partnership a valuable form of compensation on the basis of sexual orientation."

In considering the equal protection challenge, the judge decided there was no need to consider whether some form of heightened scrutiny should apply because Section O failed rational basis scrutiny. The judge rejected the four state interests offered by Arizona to support Section O: Cost Savings, Administrative Convenience, "Funds Better Spent on Heterosexual Spouses," and "Interest in Favoring Marriage and Families with Children."  Perhaps most interestingly, the judge found the government's interest regarding "funds better spent on heterosexual spouses" not legitimate because it was based on animosity.

The judge found that the plaintiffs had a likelihood of success on the merits of the equal protection claim (but not on a substantive due process claim that was also raised).  When considering the "irreparable injury" prong of the test for granting a preliminary injunction, the judge quoted Ninth Circuit language that

an alleged constitutional infringement will alone constitute irreparable harm. Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.

However, the judge also reasoned that it is not simply the denial of insurance benefits but the anxiety and stress of losing medical coverage that constitutes irreparable injury.

Standing alone, this is an important case involving the equal protection claim of state employees who are in same-sex relationships.  In the context of the Arizona immigration controversy presently before the federal court, it sheds light on the standard for a preliminary injunction to enjoin a state statute and demonstrates a federal judiciary willing to enjoin a recently passed statute by the Arizona legislature. 

{Update: Arizona immigration statute partially enjoined; here}


July 24, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, July 23, 2010

Commentary by Sherrilyn Ifill

Sherrilyn Infill, ConLawProf at the University of Maryland School of Law and author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century, has two recent commentaries worth reading.

SIfill-1 In her just published and provocatively titled commentary, "What the U.S. Supreme Court Did to Us This Year"  Ifill begins by noting the confirmation by the Senate Judiciary Committee of Elena Kagan and notes:

Kagan will join a court whose conservative majority has aggressively taken and decided cases that are transforming the constitutional landscape in ways that will have far-reaching effects. Some Supreme Court analysts have rated the court's actions in the just-concluded term as unremarkable. But for average Americans and for minority communities, the 2009-2010 term of the court is a significant one.

She then discusses Sixth Amendment cases, Citizens United v. Federal Elections Commission and McDonald v. City of Chicago as disappointments, and also focuses on the role of Justice Clarence Thomas.

In a different commentary, Infill has something to say about the Shirley Sherrod controversy, making an interesting link to the Sonia Sotomayor confirmation process.


July 23, 2010 in Current Affairs, Fundamental Rights, Gender, Profiles in Con Law Teaching, Race | Permalink | Comments (0) | TrackBack (0)

Another Try to Blunt Citizens United

Senator Schumer on Wednesday introduced a new version of the DISCLOSE Act, his attempt to blunt the impact of the Supreme Court's January 2010 ruling in Citizens United v. FEC.  That case held that federal restrictions on corporate and labor union "electioneering communication" violated the First Amendment Speech Clause. 

Sen. Schumer introduced an earlier version of the DISCLOSE Act; we posted most recently on that effort here.  Both the earlier effort and the new effort seek to address Citizens United by increasing disclosure requirements for corporations and labor unions (which were upheld under Citizens United) and prohibiting certain recipients of government funds (e.g., TARP recipients, certain government contractors) from engaging in electioneering communication.

The new bill is designed to gain the support of Maine's two Republicans, Senators Snowe and Collins, and thus to break a GOP-led filibuster, according to The Hill.  The bill will come up for a vote on Tuesday; supporters hope to bring it immediately to the floor, by-passing a committee mark-up.

The new bill, S. 3628, not yet available from the GPO, makes several significant changes:

  • It drops the House-added provision to the earlier bill exempting labor unions from reporting fund transfers in excess of $50,000 between affiliates.  Under the new bill, corporations and labors unions must report such transfers.
  • It drops the House-added "loophole" in the earlier version that requires disclosure of transfers of $10,000 or more only if the money could be traced to a large individual donor.
  • It requires businesses and unions to state their geographic location in TV ads, but not radio ads.

The new bill retains a provision exempting the National Rifle Association and several other large organizations from reporting requirements, according to Politico.  The new bill does not include a provision pushed by Rep. Kucinich that would have prohibited companies holding leases for drilling on the Outer Continental Shelf (and aimed at BP) from engaging in electioneering communication.


July 23, 2010 in Congressional Authority, Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, July 22, 2010

The Proposed Constitution of Kenya, Abortion, and the Obama Administration

Four GOP House members this week asked the Inspector General for the U.S. Agency for International Development to investigate whether the Obama administration misused appropriated funds to support Kenya's proposed constitution.  Reps. Chris Smith, Ileana Ros-Lehtinen, Darrell Issa, and Frank Wolf signed a letter to USAID IG Donald Gambatesa asking him to look into the administration's apparent expenditure of $23 million dollars to support the "yes campaign" in favor of the proposed constitution, including its provision protecting a qualified right to abortion.

The proposed constitution, which goes before Kenyan voters in a referendum on August 4, is designed primarily to cut back on expansive (and historically abused) presidential authority and enshrine separation of powers and checks and balances.  The movement for a new constitution grew out of the post-election violence in 2007 and 2008 that left 1,000 people dead and 600,000 displaced from their homes.

The Obama administration has not been shy about publicly supporting the new constitution--saying it will promote more stable democracy, rule of law, and increased foreign investment--while always adding the caveat that the final decision belongs to Kenyans.  (President Obama's remarks are summarized by the U.S. Embassy here; Vice President Biden's remarks last month in Kenya are here.)  Kenyan President Mwai Kibaki is equally (or even more) enthusiastic about the proposed constitution and has publicly encouraged turn-out and support.

Two provisions of the proposed constitution have become controversial, however.  One, Section 170, Kadhis' Courts, establishes Muslim courts to hear family disputes.  The other, Section 26, Right to Life, in the Bill of Rights, protects the right to life and a qualified right to abortion:

(1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law.

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

While Rep. Smith objects to the administration "spending $23 million in American tax dollars on the specific "Yes" campaign, pushing a determined outcome on the proposed constitution in Kenya," his letter to the USAID IG asks for an investigation only into whether the administration's support of the proposed constitution and Section 26 violates a proviso in the Consolidated Appropriations Act of 2010, P.L. 111-117, 123 Stat. 3035, which states

That none of the funds made available under this Act may be used to lobby for or against against abortion.

123 Stat. 3324. 

The restriction has its origins in President Reagan's August 1984 announcement--the "Mexico City Policy"--that directed USAID to withhold funds from NGOs that provided advice, counseling, or information regarding abortion, or lobbying a foreign government to legalize or make abortion available.  President Clinton reversed the policy by memo to the Acting Administrator of USAID on January 22, 1993, stating that "the conditions are not mandated by the Foreign Assistance Act or any other law."  President George W. Bush reinstated the Mexico City Policy on February 13, 2001.  President Obama reversed it on January 23, 2009, and ordered the Secretary of State and the Administrator of USAID to cease enforcing the Mexico City Policy conditions "that are not required by the Foreign Assistance Act or any other law."

Rep. Smith claims that some of the funds have been funneled to organizations that specifically support Section 26, Clause 4, in violation of the proviso in the Consolidated Appropriations Act of 2010, and, "[m]aking matters worse, several pro-abortion NGOs received U.S. funding and their influence in support of the abortion provision is under investigation by the USAID IG." 

The Embassy said that nine of the grants were suspended or concluded, but did not provide further details.  Rep. Smith's letter specifically asks the IG to investigate and report on these nine.


July 22, 2010 in Congressional Authority, Current Affairs, Executive Authority, Foreign Affairs, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

What is an Enemy Combatant?

David Mortlock, attorney-adviser at the State Department, takes up this question in his recent blog post at the American Constitution Society and article in the Harvard Law & Policy Review.

Mortlock notes that the courts don't have a settled definition of a detainable person.  He offers one himself: Membership in al Qaeda or the Taliban.  From the blog:

I suggest that Congress has authorized the President to subject members of al Qaeda and the Taliban to military detention, whether or not they engage in combat.  However, the President may not use military detention for mere supporters or sympathizers of those groups.  This membership model could also be used to determine the appropriate time for release.  Namely, detainees could be freed when they sever their membership in al Qaeda or the Taliban.

We most recently posted on the issue here, on the D.C. Circuit's ruling in Bensayah v. Obama.


July 22, 2010 in Interpretation, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Immigration Ordinance in Nebraska City of Fremont Challenged

The “Immigration Ordinance” of Fremont, Nebraska prohibits  “the harboring of illegal aliens or hiring of unauthorized aliens.”  Ordinance 5165 was passed by a ballot initiative this June (by a vote of  3906  to 2908) and is scheduled to become effective July 29, 2010.

The Ordinance 5165 provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city.   The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and
in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement.

Fremont Ordinance 5165 also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration.


Interestingly, before the vote, the City of Fremont itself brought an action in state court seeking a declaratory judgment that any ordinance resulting from the ballot initiative would be unconstitutional in contravention of the Supremacy Clause. The Nebraska Supreme Court issued its opinion in April: it did not rule on the merits of the Supremacy Clause argument, holding instead that “substantive challenges to proposed initiatives are not justiciable before the measure is adopted by voters.”   (The city also argued that the ballot measure violated the state constitution’s “single subject” rule, but the Nebraska Supreme Court affirmed the lower court’s conclusion that the measure did have “one general subject- - - the regulation of illegal aliens in Fremont.”)

Two complaints have been filed in federal court challenging the constitutionality of the Ordinance.

The  ACLU Nebraska Foundation and various named plaintiffs have filed a Complaint in the US District Court for Nebraska seeking an injunction against enforcement of the Fremont Ordinance.  The complaint alleges that the Fremont Ordinance is subject to preemption under the Supremacy Clause, Article VI; that the Fremont Ordinance is unconstitutional under the Equal Protection Clause; that the Fremont Ordinance is void for vagueness under the Due Process Clause; and that the Ordinance violates the Federal Fair Housing Act and state laws regarding municipal powers.

The Complaint filed by MALDEF that includes a landlord as a named plaintiff also seeks an injunction and likewise alleges preemption and equal protection, and also includes a commerce clause claim.

In defending the lawsuits, the City of Fremont is in the unenviable position of having the complaints filed against it repeat the very arguments it previously advanced. According to the Nebraska Supreme Court opinion:

Fremont points out that courts have uniformly determined that harboring and housing provisions such as those contained in the Measure are preempted by federal law and therefore are unconstitutional. It therefore asserts that measures which are unconstitutional or void are beyond the power or authority of a municipality to enact and are therefore not subject to initiative or referendum.
The Nebraska Supreme Court followed this recitation of the city’s argument by stating:  “We point out that a measure is not unconstitutional until a court makes such a determination.”  

The federal district court in Nebraska now has the task of making such a determination.  Some of our previous discussions of preemption/Supremacy Clause and other arguments regarding immigration laws passed by states and localities are available here, here and here.  An excellent news report on the Fremont, Nebraska controversy is here.

[image: view of Fremont, Nebraska, 1908 via]


July 22, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, News, Preemption, State Constitutional Law, Tenth Amendment | Permalink | Comments (2) | TrackBack (0)

Wednesday, July 21, 2010

Court (Re)Abstains on Khadr's Habeas Petition

Judge John Bates (D.D.C.) ruled yesterday that Guantanamo detainee Omar Khadr could file a second amended habeas petition, but that the court would again abstain from hearing it under Schlesinger v. Councilman (holding that "federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted").  Judge Bates previously ruled that Councilman required abstention of Khadr's first habeas claim.  Khadr's military commission trial is set to begin on August 10, 2010, after being continued several times.

Khadr, who was detained as a minor, claimed in his second habeas petition that the military commission is unconstitutional and will not adequately protect his rights, because "it does not have procedures precisely replicating those available at civilian criminal trials."  Op. at 8.  As a result, he argues, abstention under Councilman, which "assume[s] that the military court system will vindicate [his] constitutional rights," is inappropriate.

Judge Bates rejected the claim, writing that "the Constitution does not require that every protection available in criminal trials must apply in military commission proceedings for Guantanamo detainees."  Op. at 9 (quoting Hamdan and Boumediene)Moreover, detainees have a right to appeal to Article III courts: 

The review procedures created by the Military Commissions Act of 2009 have "the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces," and thus bear sufficient "conceptual similarity to state courts to warrant invocation of abstention principles." 

Op. at 11 (citing Hamdan).

Judge Bates also rejected Khadr's claims that he met the exception under Councilman that abstention is inappropriate where the petitioner presents "a constitutional question [that] turn[s] on the status of the person as to whom the military has asserted its power."  Councilman.  Khadr argued that his status as a juvenile at the time of capture prevents his trial by military commission, and that the military commission exceeds its constitutional authority.  Judge Bates ruled that the first claim was already rejected in the first ruling on abstention (linked above).  As to the second claim: "The Supreme Court, however, has already concluded that, consistent with the Constitution, Congress may authorize trial by military commission of enemy combatants accused of law of war violations."  Op. at 13 (citing Ex Parte Quirin and Hamdan).


July 21, 2010 in Congressional Authority, International, Jurisdiction of Federal Courts, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Margaret Marshall, CJ of Massachusetts Supreme Judicial Court Announces Retirement

Best known as the author of Goodridge v. Department of Public Health, the 2003 case that declared the exclusion of same-sex couples from marriage unconstitutional as a matter of state law, Margaret Marshall, 66, announced her retirement today.  


The press release from the Massachusetts Supreme Judicial Court with further biographical information and a list of notable opinions is here. (The Boston Globe) has an extensive story.  Here's Justice Marshall on "judicial activism," an accusation that was levied at her and the court for the Goodridge decision:

Asked at today's news conference how she felt about critics who say that judges engage in judicial activism, she said, "It is a buzzword and I think it's often attached to opinions where the person who's making the claim ... doesn't agree with the outcome," she said.

In her statement, she expresses her judicial theory this way:

Our system of justice is organic. Every dispute, every case, tests the law anew. No judge, whether deciding in 1692 if men and women should be condemned as witches, or deciding in 1783 if slavery could still be tolerated in Massachusetts under our then sparkling new Constitution, or today, no judge has been able to leave this Court believing that the task of justice is done. I am no different.

The Justice's statement, the Boston Globe story, and the press release all mention the effect that coming of age in South Africa during its Apartheid era had on Justice Marshall's notions of the law.


July 21, 2010 in Current Affairs, Federalism, Interpretation, News, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Arizona Immigration in Federal Court - - - but not on Television (or You Tube)

Arizona District Judge Susan Bolton, in a brief order, has denied the request of the First Amendment Coalition of Arizona to "permit camera coverage and rebroadcast of the preliminary injunction and motion to dismiss hearings" scheduled for tomorrow, July 22.  Gregory Peck image Kill Mockingbird

Judge Bolton notes that while there is a Ninth Circuit pilot project, the District of Arizona has not yet taken part in that "experiment" and that decisions will be made by the Chief Judge of the District in consultation with the Chief Judge of the Ninth Circuit.

Recall that the Proposition 8 trial was similarly not allowed to be visually recorded, with the United States Supreme Court staying an order to broadcast the trial by a 5-4 decision.  Perhaps the "Arizona Immigration Trial" will also be treated to a re-enactment as was the Proposition 8 trial.  And perhaps there will be an opinion in the Arizona Immigration Trial (at least on the preliminary injunction) more speedily than in the Proposition 8 case, in which a decision is still pending.


July 21, 2010 in Current Affairs, Fundamental Rights, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 20, 2010

The Tea Party Constitution and Its Critics

The Constitutional Accountability Center this week launched a new project, Strange Brew: The Constitution According to the Tea Party, to take on Tea Party claims about the U.S. Constitution.  Its first publication in the project, an issue brief titled Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government, by Elizabeth Wydra and David Gans, challenges claims by Tea Partiers and others that "our Constitution created a sharply limited national government and that the modern federal government vastly oversteps those limits."

Here's a taste of Wydra and Gans's response:

Contrary to Tea Party claims, the Founders created a federalism that allowed for a significant role for states and local governments, but created a strong central government with sufficient power to govern a united country. . . .  As made clear in the Constitution's soaring Preamble, our Founders invested federal lawmakers with broad powers to promote the "common defense" and "general welfare" of "we the people of the United States."

The Tea Party story about our sharply limited national government is not only inconsistent with the words and intentions of our Founding generation, but it also requires a form of selective amnesia about the important changes made to the Constitution by successive generations of Americans.  Since the Founding, the American people, at critical moments in our country's history, have amended the Constitution and added to Congress's express constitutional powers, ensuring Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans.  Indeed, most of the amendments added to the Constitution during the 19th and 20th Centuries expanded the power of the federal government.  The Tea Party's reading of the Constitution depends on ignoring or repealing these critical amendments.

We've posted on this last point here and here.


July 20, 2010 in Congressional Authority, Interpretation | Permalink | Comments (2) | TrackBack (0)

Sotomayor Biography and Memoir

Sonia Sotomayor is "honored to be working with the distinguished publishing house of Alfred A. Knopf on the publication of my memoir,” according to Knopf, which has announced the signing of a contract for the as-yet-untitled memoir. 

There is also no publication date, but for those who are anxious to read about Sotomayor, a new biography Sonia Sotomayor: The True American Dream has just hit the bookstores.  The biographer is Antonia Felix, who has also penned the biographies Condi:The Condoleezza Rice Story; Laura: America's First Lady, First Mother, as well as biographies of Andrea Bocelli, Harry Connick Jr.; and Wesley K. Clark.  

Felix's approach is generally not a critical one.  The Sotomayor biography is likewise flattering.  Steve Weinberg, reviewing the book in the Kansas City Star begins by saying:

Based on the research of Kansas biographer Antonia Felix, U.S. Supreme Court Justice Sonia Sotomayor should perhaps be canonized.

Weinberg also notes that Sotomayor did not cooperate with Felix in the writing of the biography.    The Felix biography joins several others including Sonia Sotomayor: Una sabia decision in the Vintage Espanol series, several young readers books, and a comic book  in the "Female Force" series (excerpt pictured below).



July 20, 2010 in Books, Gender, Race | Permalink | Comments (1) | TrackBack (0)

Kagan Confirmed by Judiciary Senate Committee

The vote was 13-6, largely along party lines, with Lindsey Graham joining the majority of Democrats in the Senate Judiciary Committee to confirm the nomination of Elena Kagan to the United States Supreme Court.

Elena Kagan and Sheldon Whitehouse Committee Members are:  Chair, Patrick J. Leahy (D-Vermont); Herb Kohl (D-Wisconsin); Jeff Sessions (R-Alabama); Dianne Feinstein (D-California); Orrin Hatch (R-Utah); Russ Feingold (D-Wisconsin); Chuck Grassley (R-Iowa); Arlen Specter (D-Pennsylvania); Jon Kyl (R-Arizona); Chuck Schumer (D-New York); Lindsey Graham (R-South Carolina); Dick Durbin (D-Illinois); John Cornyn (R-Texas);  Benjamin L. Cardin (D-Maryland); Tom Coburn (R-Oklahoma); Sheldon Whitehouse (D-Rhode Island); Amy Klobuchar (D-Minnesota); Ted Kaufman (D-Delaware); Al Franken (D-Minnesota).

The full Senate is expected to vote in August.

[image: Sheldon Whitehouse and Elena Kagan via]

[Updated Material:  Tom Coburn discussed his views of Kagan in National Review Online; Jeff Sessions provided his "opposing view" to the USA TODAY endorsement of Kagan; and Arlen Specter earlier expressed his qualified support for Kagan in USA TODAY].


July 20, 2010 in Appointment and Removal Powers, News | Permalink | Comments (0) | TrackBack (0)

Monday, July 19, 2010

Top Secret America

The Washington Post has launched its feature "Top Secret America."   The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."   

The project also includes a searchable online database detailing private contractors and specific locations.  The Editorial explanation is worth reading; here is a bit of it:

The articles in this series and an online database at depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

Picture 2

The feature should be of interest to anyone working on state secrets doctrine and theory.   The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable.  The Washington Post explanation above also implicates First Amendment concerns.


July 19, 2010 in Current Affairs, Foreign Affairs, News, State Action Doctrine, State Secrets, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Sunday, July 18, 2010

Health Insurance Mandate: "Commerce" or "Tax"?

The Obama administration switched its position on the individual health insurance mandate and now claims that it is a "tax," according to the New York Times in a provocatively titled article Changing Stance, Administration Now Defends Insurance Mandate as a Tax.

The Times reports that the administration is now defending the mandate--perhaps the most controversial piece of the Patient Protection and Affordable Care Act--primarily as a tax, and not primarily as a regulation of commerce, in federal court cases seeking to overturn the Act as unconstitutional.  According to the story, administration officials describe the tax argument as the "linchpin" of their case.  The story suggests that the switch came in response to increasing criticism of the mandate as exceeding Congress's authority under the Commerce Clause--authority that allows Congress to regulate anything that has a substantial effect on interstate commerce.  The article suggests that this "switch," then, is a new (and disingenuous) argument.  (We've covered the Commerce Clause and taxation arguments here, here, here, and here.  We've covered other aspects of the bill here and here.)

Just one problem: The article is wrong.

The administration has consistently defended the mandate in court first as an exercise of Congress's Commerce Clause power and only (far) second as an exercise of its taxing power under the General Welfare Clause.  Take, for example, the Justice Department's brief in Virginia v. Sebelius, the case in the Eastern District of Virginia.  In that brief, the government devotes 15 pages to its thorough and aggressive argument under the Commerce Clause--its primary substantive argument--and a mere 4 pages for its near-after-thought argument on taxation.  Yet the Times article quotes a portion from the tax argument in that very brief as evidence that the administration has changed its stance.

Take, for another example, the Justice Department's brief in Florida v. HHS, the Northern District of Florida case.  In that brief, the government devoted a similar 16 pages to the Commerce Clause--again its primary substantive argument on the mandate--and a mere 3 to its secondary taxation argument.

(Thanks to the ACA Litigation Blog for the briefs.  The ACA Litigation Blog is a new blog dedicated to following the litigation around health care reform.)

In its first brief in these cases, Thomas More Law Center, et al. v. Obama, in the Eastern District of Michigan, the government similarly privileged its Commerce Clause argument over its taxation argument.

The taxation argument was actively in play as early as last fall, even if the government has never (even now) used it as its primary authority in litigation for the mandate.

In short, the government's litigation position seems to have been consistent: The mandate is supported primarily by the Commerce Clause and only secondarily and alternatively by the taxation authority under the General Welfare Clause.

But in the end, does it matter?  As the Times story indicates, Congress went to great lengths in the Act to justify the mandate as an exercise of its Commerce Clause authority, and virtually ignored its taxation authority.  And administration officials have repeatedly claimed that the mandate is not a tax.

But there's no requirement that Congress name the particular authority it uses in its legislation (although that might help the courts uphold it), and there's certainly no requirement that the government's (or any litigant's) public pronouncements about their positions line up with their litigation positions.  And in the end, whether the mandate is "commerce" or a "tax" doesn't really matter to those affected--they still have to comply, or face the penalty.

The only way the administration's public "switch" (if such a switch really exists) might matter is in a government's normative obligation to state publicly what it also states in litigation.  This may be an attractive standard to promote government transparency, publicity, and educated public discourse, but we have never held the government to it. 


July 18, 2010 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (6) | TrackBack (0)