Friday, October 15, 2010
One of the several eye-catching features of this week's decision on health care reform out of the Northern District of Florida is this: The court's homage to publicity as a core value in our representative democracy. The remarkable statement comes in the section of the opinion dealing with Congress's taxing power--whether Congress can enact the individual mandate under its taxing power, when there's no clear indication from Congress that it intended to enact the mandate under its taxing authority and when Congress seemed to treat the mandate as anything but a tax in the public discourse. Thus:
In other words, to the extent that the [government is] correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.
. . . In other words, the members of Congress would have reaped a political advantage by calling and treating it as a penalty while the Act was being debated . . . and then reaped a legal advantage by calling it a tax in court once it passed into law.
Op. at 27-28 (emphasis in original). And then this kicker:
This should not be allowed, and I am not aware of any reported case where it ever has been.
Op. at 28 (my emphasis). Further explained here:
Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an "Alice-in-Wonderland" tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.
This isn't much of the court's 65-page opinion, to be sure. But consider this: The court addressed the issue of Congress's taxing power (including these passages) first, even before it addressed justiciability--the threshold questions of standing and ripeness. It seems that the court had something to say about the political branches' duplicity in enacting and defending the mandate.
By one reading, the court is reinforcing democracy, in the spirit of Ely. More particularly, it's imposing its value of publicity (and related values of transparency and accountability)--deliberative democracy values--upon the political branches. By demanding that members of Congress maintain consistency in their positions, the court helps educate citizens as to their representatives' true purposes and helps voters hold their representatives' feet to the fire.
But by another reading, the court is dramatically overreaching. It is imposing consistency and truth demands on Congress, requiring members to articulate their political claims in the same terms that the institution articulates its constitutional claims in court. While, as the court says, there's no precedent for upholding a tax law that was justified on the basis of a penalty, there seems to be no precedent the other way, either. The court seems to support its claim based only on normative principles: "This should not be allowed." This seems like a remarkable lack of deference to a co-equal branch interpreting its own constitutional authority.
And moreover the court's authority for its methodology seems quite thin: Helwig v. United States (1903). The court uses Helwig to delve into "the nature of the act" in order to determine what authority Congress relied upon in enacting the mandate. According to the court, the nature of the mandate includes legislative language, clear congressional intent (as to the authority it is employing), public defenses of the mandate under the Commerce Clause, the method of collection, and Congress's "fail[ure] to identify in the legislation any revenue that would be raised from it . . . ." According to the court, these all point away from the taxing power as authority for the mandate.
But Helwig didn't deal with "the nature of the act" in order to determine congressional authority in the abstract. Rather, Helwig, a 1903 case, looked to "the nature of the act" to determine specifically whether Congress intended the act to be a penalty (not authorized) or a tax (authorized). This penalty-tax dichotomy went away 73 years ago--24 years after Helwig. The court too easily glosses over the fact that the "Helwig methodology" that it borrows is in fact bound up (perhaps inextricably so) with the debunked penalty-tax dichotomy.
Whether the court was reinforcing democracy or overextending its judicial authority, it was clearly making a statement.
Thursday, October 14, 2010
In a 65 page opinion issued today, Senior United States District Judge Roger Vinson of the Northern District of Florida has granted in part and denied in part the morion to dismiss the complaint.
The Complaint alleges that the Health Care Reform Act is unconstitutional on various grounds in six counts and the Motion to Dismiss was directed at all the counts.
Here is the bottom line:
(1) the individual mandate and concomitant penalty exceed Congressional authority under the Commerce Clause and violate the Ninth and Tenth Amendments; NOT DISMISSED
(2) the individual mandate and penalty violate substantive due process under the Fifth Amendment; DISMISSED
(3) if the penalty imposed for failing to comply with the individual mandate is found to be a tax, it is an unconstitutional unapportioned capitation or direct tax in violation of U.S. Const. art. I, § 9, cl. 4, and the Ninth and Tenth Amendments; DISMISSED AS MOOT
(4) the Act coerces and commandeers the states with respect to Medicaid by altering and expanding the program in violation of Article I and the Ninth and Tenth Amendments; NOT DISMISSED
(5) it coerces and commandeers with respect to the health benefit exchanges in violation of Article I and the Ninth and Tenth Amendments; DISMISSED
(6) the employer mandate interferes with the states' sovereignty as large employers and in the performance of government functions in violation of Article I and the Ninth and Tenth Amendments; DISMISSED
Thus, the case will proceed on the issue of whether the individual mandate is in excess of Congress' commerce power in contravention of the Tenth Amendment and on the issue of whether the Medicaid changes are in excess of Congress' Article I power and in contravention of the Tenth Amendment.
The Supreme Court and the High Court of Pakistan are badly in need of a lesson in judicial minimalism, according to Saroop Ijaz, advocate before the Lahore High Court in Pakistan, in a column this week in the Jurist. Based on Ijaz's examples, he's right. Among them:
Public Debate as Judicial Contempt
The Lahore High Court recently imposed a ban on Facebook, Youtube, and Google, among others, based on these sites' blasphemous content. The ban was lifted, but the matter remains before the court. As a result, according to Ijaz, "[a]ny [public] debate now carries the possibility of contempt proceedings, since it would be commenting on a [matter before the court]." By intervening in the matter, the court cut-off a developing public discourse and kept the issues for itself.
The Constitutionality of a Constitutional Amendment
The Supreme Court is hearing a petition challenging the constitutionality of the 18th Amendment, which curbed the President's powers to unilaterally dissolve Parliament. The petitioners' argument is that the court has the power to rule a constitutional amendment unconstitutional, if the amendment violates the basic structure of the constitution. A long line of Supreme Court cases suggests that such questions should be left to Pakistanis themselves, but, Ijaz argues, the court's intervention suggests that it may be open to taking the issue out of the public sphere and ruling on it itself.
Suo Moto Jurisdiction
Pakistan's superior courts have authority to take up a matter on their own (without an Article III-like case or controversy, or, apparently, even a petition) on any matter in the public interest. Most recently, the Lahore High Court's Divisional Bench set the price of sugar at 40 Pakistani Rupees per kilogram--a matter well outside the expertise of the judiciary and best suited for expert and political discourse. The courts' suo moto jurisdiction means that the courts can take any issue in the public interest out of the public sphere and rule on it themselves.
Judicial minimalism says that courts should rule only on the narrow cases in front of them and leave the larger theoretical and policy issues to the political process. Whether minimalism is the answer to Pakistan's judicial overreaching or not, these examples are extreme illustrations of why we in the U.S. take separation-of-powers and Article III case-and-controversy requirements so seriously.
Tuesday, October 12, 2010
The Secretary of the Florida's Department of Families and Children has reportedly stated that it will not appeal the Florida appellate court's ruling declaring unconstitutional the state law banning "homosexuals" from adopting.
While the intermediate appellate court opinion noted that its ruling was "unlikely to be the last word," it may be. Under Florida constitutional interpretations, the appellate court ruling would bind all courts unless and until there was another ruling. However, the state attorney general could possibly file a notice of appeal, despite the Secretary's decision (presumably made in consultation with the governor).
However, as of today, the homosexual ban remains on the state agency's website:
Recall the two decisions of United States District Judge Joseph Tauro holding section 3 of the Defense of Mariage Act (DOMA) unconstitutional: Commonwealth of Massachusetts v. HHS and Gill v. Office of Personnel Management.
The Obama Department of Justice has filed its notices of appeal to the First Circuit today.
In a brief order today, federal district judge Virginia Phillips, Central District of California, has permanently enjoined the military's "don't ask, don't tell" policy. The judge had previously ruled that the military's "don't ask, don't tell" policy regulating homosexuality is unconstitutional under the Fifth Amendment's due process clause and under the First Amendment.
(1) DECLARES that the act known as "Don't Ask, Don't Tell" infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and(b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.
(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the "Don't Ask, Don't Tell" Act and implementing regulations, against any person under their jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.
The judge also allows the Plaintiff, Log Cabin Republicans, attorneys fees.
UPDATE: GOVERNMENT SEEKS A STAY AND APPEALS TO NINTH CIRCUIT, from SCOTUSBlog here.
Monday, October 11, 2010
The ACLU and Center for Constitutional Rights responded Friday to the government's motion to dismiss in Al-Aulaqi v. Obama. The case challenges the President's authority to order the targeting killing of Nasser Al-Aulaqi, a U.S. citizen allegedly supporting al Qaeda in the Arabian Peninsula. (We covered the government's authority, or lack thereof, here.)
The government moved to dismiss the case last month, arguing that the plaintiff lacked standing, and that the case is barred by the political question doctrine and the state secrets privilege.
On standing, the ACLU and CCR argue that al-Aulaqi's father has next-of-friend standing to bring the case on behalf of Nasser, his son, and has satisfied all the standing requirements: "At the most basic level, the injury here could not be clearer, or more profound: Plaintiff's suit is based on his fear that the government will kill his son."
On the political question, they argue that this case is every bit as appropriate for the courts as a case involving indefinite executive detention of an American, executive detention and habeas at Guantanamo Bay, or the legality of military commissions--issues on which the Court has ruled relatively recently in Hamdi, Rasul and Boumediene, and Hamdan, respectively.
On the state secrets privilege, the groups argue that the government's assertion here, to dismiss the litigation on the pleadings based on the claim that the case would force the disclosure of state secrets, is sweeping and unsupported by law. It's also ironic:
that Anwar Al-Aulaqi has been targeted for assassination is known to the world only because senior administration officials, in an apparently coordinated media strategy, advised the nation's leading newspapers that the National Security Council had authorized the use of lethal force against him.
Op. at 45. It's not the first time we've seen this kind of irony.
Sunday, October 10, 2010