November 20, 2010
Republican Senators File Amicus Opposing Health Care Reform
Thirty-three Republican Senators filed an amicus brief in the Northern District of Florida case challenging federal health care reform. (We posted yesterday that state lawmakers filed their own amicus supporting reform.)
The Republicans' brief collects and restates the several well known arguments that Congress lacked authority to enact the individual health insurance mandate under the Commerce Clause. Thus the brief argues that (1) not getting health insurance isn't commerce and therefore isn't subject to Commerce Clause regulation, (2) at no time in our history has Congress required a "passive" person to purchase something under its Commerce Clause authority (and courts have never upheld this kind of exercise), (3) the government's theory would result in an unbridled Commerce Clause that would intrude into areas reserved for the states, vastly expand Congress's authority, and upset the delicate balance between federal enumerated powers and state police powers.
These are familiar arguments. But two points in the brief caught my attention. First, the Republicans argue that Congress didn't even find that not buying insurance substantially affects interstate commerce. Instead, they argue, Congress found only that requiring the purchase of health insurance would substantially affect interstate commerce. They argue that the Court requires Congress to find that the action regulated--and not the regulation itself--substantially affects interstate commerce, and therefore even Congress didn't find facts sufficient to support the exercise of its Commerce Clause authority in this way.
They also argue that while Congress has required "passive" individuals to do something under other Article I authorities (e.g., the authority to raise and support armies), it has never done so under the Commerce Clause. They don't explain why this matters--why the principle that Congress can require action under one Article I authority doesn't transfer to other Article I authorities--except to say that authority here would lead to a limitless Commerce Clause.
November 19, 2010
State Legislators' Amicus Supports Federal Health Care Reform
State legislators from 27 states today filed an amicus brief supporting the federal government in the State of Florida's challenge to federal health care reform now in the Northern District of Florida. Some of the states represented have filed their own cases against the federal government. We posted on the case here and here.
The legislators focus on federalism. They argue first that federal health care reform does not violate principles of federalism, because it offers policy choices (and not requirements, in violation of the anti-commandeering rule) for the states at each turn. For example: States have discretion to form their own insurance exchange, or to join with other states in a regional exchange, or to allow the federal government to administer a state-wide exchange; states have discretion in tailoring the health care plans to be provided through the exchange; and states can apply for a waiver to set up their own program, with or without a minimum coverage provision, or with a public option. "This allows for the diversity and innovation that is the hallmark of the States." Brief at 6.
The legislators also take on opposition to expanded coverage in Medicaid. (Federal health care reform expands Medicaid eligibility to individuals under 65 with incomes below 133% of the federal poverty line.) The legislators argue that Medicaid is and always has been a voluntary federal-state partnership and a classic example of federal conditioned spending (meeting the requirements of South Dakota v. Dole). They argue that grumblings from Texas this week about opting out of Medicaid prove their point: States can opt out of the new requirements if they like--and thus there is no coercion or commandeering involved.
The Constitutional Accountability Center filed the brief on behalf of the legislators.
White House Weighs in on Access to Justice
Vice President Joe Biden today spoke at a Middle Class Task Force event co-hosted by the Department of Justice's Access to Justice Initiative. He outlined three steps that the administration is taking to promote access:
- The Department of Labor is working with the American Bar Association to provide legal assistance to workers who lodge complaints (for not getting paid, e.g.) with DOL's Wage and Hour Division.
- The Department of Veterans Affairs and the Legal Services Corporation are working together to provide attorneys for veterans through the LSC network.
- The Department of Housing and Urban Development is working with the DOJ initiative to promote effective foreclosure mediation programs.
The DOJ Initiative has a number of other projects already in the works; check them out here.
November 18, 2010
CLS v. Martinez on Remand: No First Amendment Claim
The Ninth Circuit has refused to remand Christian Legal Society (CLS) v. Martinez - - - now Christian Legal Society v. Wu - - - to the district court to consider the claim that UC Hastings College of Law "selectively applied its Nondiscrimination Policy against CLS."
The United States Supreme Court rendered its decision in CLS v. Martinez last term, holding that the Hastings Law School's policy of non-recognition of the Christian Legal Society (CLS) student group did not violate the First Amendment. The Court remanded the case to the Ninth Circuit to consider the selective application issue “if, and to the extent, it is preserved.”
In a nine page Order the Ninth Circuit concludes that the selective application issue is not preserved. The panel - - - Alex Kozinski, Procter Hug, Jr. and Carlos T. Bea - - - examines and extensively quotes from the Appellant's Brief in CLS v. Martinez and concludes the selective application argument (also called the pretext argument) is not made. The panel then stated, "If omission of the pretext argument from the opening brief weren’t sufficient to convince us that the issue has not been preserved," then a "review of oral argument crystalizes our conclusion." Again, the court quotes from oral argument.
Thus, although Justices Alito and Stevens rendered opinions regarding their respective (and opposing) views of the merits of the selective application claim, the "procedural disarray" of the case, evident at oral argument, seems to have been the most important factor.
November 16, 2010
First Circuit Upholds Mandatory Voluntary Pledge in Classrooms
A three-judge panel of the First Circuit on Friday upheld a New Hampshire law requiring school districts to authorize a period of time during the school day for recitation of the Pledge of Allegiance--including the words "under God." Under the law, teachers are to lead their classes in a voluntary recitation of the Pledge. Students may elect not to participate.
The plaintiffs in Freedom From Religion Foundation v. Hanover School District argued that the law violated the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the Due Process Clause. The court rejected each claim.
(Fun fact: Michael Newdow of Elk Grove Unified School District v. Newdow is counsel for the plaintiffs. The Supreme Court in Newdow ruled that Newdow lacked standing as next-of-friend to his daughter to challenge the school district's requirementthat all students recite the Pledge. The problem: Newdow didn't have legal custody over his daughter. There are no similar standing problems here.)
Establishment Clause. The court ruled that the New Hampshire law satisfied each of the Court's approaches--the three-part Lemon test; the "endorsement" test first articulated by Justice O'Connor in concurrence in Lynch v. Donnelly; and the "coercion" analysis of Lee v. Weisman. As to Lemon, the court ruled that New Hampshire had a secular purpose in enacting the requirement--the promotion of patriotism. (The United States's purpose in adding the words "under God" in 1954 is irrelevant.) The law doesn't have the primary or principal purpose of advancing religion, because it's voluntary and meant to further "the policy of teaching our country's history to the elementary and secondary pupils of this state."
As to endorsement, the court relied on the voluntary nature of the recitation. It held that students may elect not to participate for any number of reasons that aren't obvious to the rest of the case. The effect is therefore not to distinguish non-participants on the basis of religion--and therefore not to endorse religion. Moreover, taken in the context of the whole Pledge, the words "under God" don't convey a message of endorsement.
As to coercion, the court ruled that this case is different than Lee. In Lee, students were indirectly coerced into silence during a prayer at graduation; the silence was an act of participating in the prayer. Here, where the words "under God" are couched in an otherwise secular Pledge and where silence does not have any necessary religious connotations, there's simply not the same kind of coercion as in Lee.
Free Exercise. The court rejected this claim, relying on its ruling in Parker v. Hurley. The First Circuit ruled in that case that "[p]ublic schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the students agree with or affirm those ideas, or even participate in discussions about them." Here, mere exposure to the words "under God" does not inhibit their own (or their parents) free exercise.
The court rejected the equal protection and due process claims out of hand: nothing in the New Hampshire law led to any disparate treatment, and the due process argument (apparently based on parental rights) simply wasn't developed.
West Virginia "Acting Governor": Violation of State Constitution?
Joe Manchin, the former governor, was sworn in as the junior United States Senator from West Virginia yesterday. West Virginia is one of less than ten states that does not have an official lieutenant governor to assume the governorship. Instead, the West Virginia Constitution provides in Article VII, section16, "Vacancy in governorship, how filled":
In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.
The problem is separation of powers under the state constitution. A member of the legislative branch, president of the Senate, Earl Ray Tomblin, who was sworn in as governor yesterday, is now the head of the executive branch. The West Virginia Constitution specifically prohibits a person serving in two branches of state government. Article V provides:
The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.
Thus, Article V conflicts with Article VII, section 16, which provides for one person to occupy positions in two branches. However, section 16 clearly contemplates such a state of affairs as a temporary solution: "until the vacancy is filled." But how temporary? And how is the vacancy to be filled?
ConLawProf Robert Bastress at WVU College of Law argues that the legislature should be given the opportunity to solve the problem. WV attorney Thornton Cooper intends to file a lawsuit with the state supreme court to require a special election. Their views and a discussion of the law is available from WV public television in the segment below.
November 15, 2010
Government Likely to Detain KSM Indefinitely
The Washington Post reported this weekend that the Obama administration is unlikely to push for federal trial for Khalid Sheik Mohammed (because it would anger lawmakers in Congress and in New York) and unlikely to push for trial in a military tribunal (because it would alienate liberal supporters).
The result? It looks like indefinite detention.
The administration has long claimed that indefinite detention is authorized under the AUMF and legal under international law, although it hasn't given us its precise reasons. (We posted on indefinite detention here and here.)
The AtlanticWire collects reactions--from a critique that this means we're in a "forever war" to glee that Obama seems to be following the Bush administration's approach (but without also offering the aggressive legal claims).
Second Circuit on First Amendment Rights of Clerk of County Court
In an opinion issued this morning, the Second Circuit has allowed Bobette Morin's lawsuit against judges and court personnel in Ononganda County, New York to go forward.
In the summer of 2002, Voninski, then Executive Assistant to District Administrative Judge Tormey, escorted Morin to Tormey’s chambers. Tormey greeted Morin with a kiss and a hug and commended her for the “great job” she was doing. Tormey then told Morin that [County Family Court] Judge David G. Klim was running for State Supreme Court Justice on the Democratic ticket against “good Republican friends of mine” and asked Morin if she “was a good Republican” and whether she “wanted to be a ‘team player.’” Tormey and Voninski demanded that Morin “provide negative information about Judge Klim with respect to his upcoming judicial election for Supreme Court” and “ordered [her] to ‘dish dirt’ on Judge Klim.” They requested her “to monitor Judge Klim’s activities and to report his ‘comings and goings.’” Morin replied that it was not her position “to spy on judges during a judicial election” and that “it was repeatedly emphasized to me that I was not to engage in political activity involving the courts.” She added that her only monitoring task was to maintain a list of each judge’s cases that were approaching the 180-day deadline for disposing of cases. Hearing her response, Tormey and Voninski “became visibly angry,” and Tormey “directed [her] to ‘get out of [his] office!’”.
She alleged that she was thereafter subject to various adverse employment actions, including a reassignment to an office requiring a four hour commute and a demotion from Chief Clerk.
The judges and court personnel raised a qualified immunity defense, appealing from the district judge's denial of their motion for summary judgment.
The Second Circuit's discussion squarely confronted the First Amendment issues. First, the Second Circuit made clear that Morrin's claim is her "First Amendment right not to be pressed into participating in partisan political activities." (emphasis added). The court stated that such a right "draws its decisional basis not from the Garcetti/Connick/Pickering trilogy," as the Defendants had claimed, but from decisions such as Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), Branti v. Finkel, 445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (1976). "In short, the issue in this case is whether the Plaintiff could be retaliated against based on her political affiliation (or non-affiliation), not whether she could be retaliated against based on any protected speech."
Second, the court found that Morin did not fit into the policymaker exception to the Elrod/Branti/Rutan trilogy. While she did not have civil service protection, she "is not authorized to speak in the name of the Defendants or other policymakers, cannot reasonably be perceived as a policymaker, does not influence government programs, and is not responsive to partisan politics," and indeed, is prohibited by New York statute from engaging in political activities during working hours.
Thus, the case is less about judicial immunity than about the First Amendment rights of government, including judicial, employees. The opinion is a brief 15 pages with sufficient facts and involving a choice between doctrinal "lines," so it would be a great basis for a class exercise.
(h/t Nate Treadwell) [image of map of Onondaga county in New York via].