Friday, July 12, 2013
A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act. The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine. Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.
The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate. (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.) What's the difference? See below.
The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius. Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power. The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB. (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)
The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act. (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)
On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority. (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.) What's the difference between the employer mandate and the individual mandate? In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause. The Fourth Circuit explained:
To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it. In contrast to individuals, all employers are, by their very nature, engaged in economic activity. All employers are in the market for labor. And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .
Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . . Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.
(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court." We covered that topic here.)
Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.
The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.
July 12, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Establishment Clause, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
The Ninth Circuit ruled this week in Townley v. Miller that plaintiffs lacked standing to challenge a Nevada law that allows voters to choose "None of these candidates," but does not count those votes in determining an election winner.
The ruling means that the case is dismissed and the challenge to the NOTC law goes away. NOTC stays on the books in Nevada. It's not obvious that the plaintiffs had any serious claim on the merits, anyway.
Nevada's NOTC law allows voters to register their preference for none-of-the-above by ticking the box for "none of these candidates" on an election ballot. The state counts these votes and reports them, but it doesn't use them to determine the winner of the election. Instead, these votes are treated as blank votes. Their value is in publicizing the extent of voter discontent with the named options on the ballot.
Plaintiffs challenged that portion of the NOTC law that says that NOTC votes aren't counted in determining the winner of an election. They said that this provision disenfranchises them--because it means that their NOTC votes don't count.
The Ninth Circuit dismissed the case, ruling that the plaintiffs lacked standing. Seven of the plaintiffs didn't say in the complaint that they had or would vote NOTC, and the court concluded that they didn't assert a sufficient injury in fact. Two plaintiffs said they would vote NOTC, but the court said that their case wouldn't redress their alleged harm. Those two plaintiffs asked the court to strike the NOTC option from the ballot entirely, and not just to order the state to count NOTC votes. The court said that this would only disenfranchise them more, not redress their claimed disenfranchisement. The remaining plaintiffs alleged competitive standing--standing based on a candidate's or party's challenge to the inclusion of an ineligible rival on the ballot--but the court said that their injuries (if any) were not caused by the NOTC law and that their cases wouldn't redress any of their alleged injuries. The problem was that these plaintiffs conceded the legality of the NOTC option on the ballot--"the voter option that would have a siphoning effect," op. at 16--and therefore failed to connect their injuries to their claim and requested relief.
Thomas Edsall set out the case earlier this week in the NYT for why the Supreme Court's ruling in Shelby County will have a devastating impact on the already-declining political power of blacks in the South (and around the country). The core thesis: Southern state legislatures have redrawn districts in a way that increases black representation but decreases black political power. They've also enacted other laws, like voter-ID, that primarily hit black, Hispanic, and poor communities.
Thursday, July 11, 2013
Representative Scott Garrett (R-NJ) introduced a resolution, H. Con. Res. 45, saying that President Obama violated Article II, Section 3 of the Constitution by postponing the requirement that employers with more than 50 employees provide health insurance or pay a fine. (Article II, Section 3 says that the President "shall take Care that the Laws be faithfully executed.") The Hill reports here; we posted on Michael McConnell's piece in the WSJ here.
According to the resolution, the Affordable Care Act sets a specific date, December 31, 2013, after which the employer mandate "shall" take effect:
Whereas section 1513(d) of such Act states that the employer mandate "shall apply to months beginning after December 31, 2013";
This is right, and it seems pretty firm.
Lyle Denniston argues (correctly) over at Constitution Daily, the blog of the U.S. Constitution Center, that administrative agencies enjoy some flexibility in enforcing federal law. In particular, agencies may sometimes require time to be able to write regs to effectively enforce the law.
But here the language of the ACA is clear on the date of its application, and the administration's delay doesn't seem to have anything to do with its ability to enforce the employer mandate. Instead, the delay seems designed to meet the concerns of business owners--a policy consideration, not an administrative one.
The best way for the two ends of Pennsylvania Avenue to work this one out would be to amend the ACA, to give employers another year--simply change that date to December 31, 2014. This is a simple step, but an unlikely one in the current political climate, where pols can score points instead of making policy.
For many around the world, the U.S. Constitution is no longer the gold standard. That's because more recent constitutions, like South Africa's, contain a broader set of individual rights. (And those rights are often better theorized, to boot.)
But Drew F. Cohen argues in U.S. News that the Supreme Court's recent ruling in Windsor, striking the federal definition of marriage under DOMA as only between one man and one woman, may help change that. Cohen, a law clerk for the Chief Justice of the South African Constitutional Court, writes, "The decision to overturn the Defense of Marriage Act, however, has an uncanny potential to realign the U.S. constitution with the emerging international concensus on human rights issues and recast it as a modern source of jurisprudential power."
Should a for-profit corporation have free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment as the en banc Tenth Circuit held in Hobby Lobby, Inc. v. Sebelius?
Hamilton ultimately contends that RFRA, at least as interpreted by the Tenth Circuit, is unconstitutional under the Establishment Clause in that it means that "large for-profit employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs."
Hamilton's even larger argument, however, involves the relationship between religion and capitalism in our constitutional democracy. Assume, she argues, that Hobby Lobby and similar companies
assert that they don’t mind losing money from those who don’t share their religious beliefs. Or to put it another way, they really only want business from those who share their religious beliefs. That is the slippery slope on which the Tenth Circuit has set free exercise reasoning.
That isn’t capitalism, which, when working as it should, is driven by the quality of products and competition on price, regardless of the political or religious beliefs of the producer and purchaser. It is Balkanization, and a first step on the path to the religious wars we in the United States have avoided so far.
Yet perhaps the owners of Hobby Lobby is not anticipating that consumers will actually know that it is an entity with specific religious beliefs rather than simply a store selling sequins?
Whatever the beliefs of the owners of Hobby Lobby, however, Hamilton's column is a must read on the contentious issue of recognizing religious freedoms of for-profit companies.RR
Wednesday, July 10, 2013
Here's Michael McConnell's piece in the WSJ arguing that the White House's decision to defer the implementation of the employer mandate in the Affordable Care Act violates the President's duty to "take Care that the Laws be faithfully executed." No word yet from the White House on the legal basis for deferring what appears to be a mandatory start-date in the Act: the employer mandate and penalty "shall apply" after December 31, 2013.
Judge Gladys Kessler (D.D.C.) this week reluctantly denied a Guantanamo detainee's plea to stop his force-feeding. Detainee Jihad Dhiab requested expidited consideration because of the risk that force-feeding during the day will deprive him of the Ramadan fast, which started July 8.
Dhiab is an 11-year detainee at Guantanamo who has received no habeas or military commission proceeding to determine the merits of his case. He was cleared for release two years ago.
Judge Kessler wrote that the court lacked jurisdiction to hear Dhiab's petition, because 28 U.S.C. Sec. 2241(e)(2) deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo. She wrote that "the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction."
Judge Kessler went on to address the merits, though, and to urge President Obama to stop the force-feeding:
The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. . . .
Even tough this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. . . .
Article II, Section 2 of the Constitution provides that "[t]he Preisdent shall be the Commander in Chief of the Army and Navy of the United States . . ." It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority--and power--to directly address the issue of force-feeding of the detainees at Guantanamo Bay.
The White House responded at the daily press briefing yesterday that the President doesn't want these detainees to die, and that he maintains his position that Guantanamo should close.
July 10, 2013 in Cases and Case Materials, Congressional Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
The Foreign Intelligence Surveillance Court, or FISC, has come under increasing scrutiny in recent weeks, after Edward Snowden leaked an order of that court directing Verizon to turn over "comprehensive communications routing information" to the NSA. We posted here on EPIC's petition to the Supreme Court to overturn that order.
In particular, critics are taking aim at the FISC's secrecy, the un-adversarial nature of its proceedings, and the appointment process for its judges. (The FISC's decisions, though tremendously important, are classified; only the government, and not private individuals subject to surveillance, gets to make arguments to the FISC; and the Chief Justice alone appoints and details sitting federal judges to the FISC.)
Eric Lichtblau framed some of the issues last week in the NYT, and Orin Kerr reacted on Volokh. The WSJ reported on the expanding definition of "relevant" in the FISC's jurisprudence--important because under federal law the FISC can order the production of tangible things that are "relevant to an authorized investigation." That question--how far does "relevant" extend--is front-and-center in EPIC's petition at the Supreme Court.
Bloomberg editors took aim at the FISC's "missing checks and balances," adopting a recommendation by Kerr that an independent office in DOJ should advocate for privacy at the FISC, in order to create some measure of adversity before the court. Bloomberg editors also recommended changing the appointment process--a recommendation echoed at Bloomberg by Noah Feldman and Ezra Klein. In particular, critics worry that the current method of appointment could lead to a kind of group-think among judges on the FISC--a worry that seems supported by the government's breathtaking success rate at the court.
There is some legislation in Congress to address these concerns, one way or another. For example, H.R. 2440, the FISA Court in the Sunshine Act of 2013, would require the disclosure of FISC decisions, or an explanation why they can't be disclosed. H.R. 2475, the Ending Secret Law Act, and S. 1130, would do the same thing. H.R. 2586, the FISA Court Accountability Act, would provide for the appointment of FISC judges by the Chief Justice and by congressional leaders.
Tuesday, July 9, 2013
The Senate Judiciary Committee today questioned James Comey, Jr., President Obama's pick to replace Robert Mueller as the head of the FBI. Comey was a deputy attorney general under President George W. Bush who gained fame after his 2004 confrontation with White House Counsel Alberto Gonzales and Chief of Staff Andrew Card over that administration's secret surveillance program at the hospital bedside of former AG John Ashcroft. But, as Rick Perlstein argues at The Nation, and as Laura Murphy argues at the Guardian, Comey's record is a little more complicated.
As has been widely reported, Comey today told the Committee that he thought waterboarding was torture. The Atlantic Wire has a summary of his responses to other, similar issues. Here's the hearing on c-span.org.
The Illinois state legislature today voted in both houses to override Governor Quinn's "amendatory veto" of the state's concealed carry bill. The move means that Illinois is the last state in the Union to allow concealed carry of a firearm, with none of the changes recommended by Governor Quinn. We posted most recently here.
The move also meets a deadline set by the Seventh Circuit in ruling Illinois's prior ban on concealed carry unconstitutional, in violation of the Second Amendment. If the state had not enacted a concealed carry law (with licensing and certain restrictions), the Seventh Circuit ruling would have meant that Illinoisians could carry a concealed weapon without a license, permit, training, or other restriction.
State AG Lisa Madigan had asked for, and received, more time from the Supreme Court to determine whether to appeal the Seventh Circuit's ruling. (The full Seventh Circuit denied en banc review.) In light of the legislature's move today, she indicated that the case is moot.
To register a handgun in the state of New York, the fee is $3-10. However, a New York statute, New York State Penal Law § 400.00(14), allows the City of New York and the adjoining county of Nassau on Long Island to set and collect a different fee. The challengers argued that this statutory provision violated equal protection. Additionally, the challengers argued that the fee set by New York City - - - $340 for a three year license - - - violated the Second Amendment. In its opinion in Kwong v. Bloomberg, a unanimous Second Circuit panel upheld both the state statute and the city regulation, affirming the district judge.
Judge Jose Cabranes rejected the argument that the $340 fee set by NYC Admin. Code § 10-131(a)(2) places too great a burden on their Second Amendment rights. Following the path set by other judges, the Second Circuit held that the Supreme Court’s First Amendment fee jurisprudence provides the appropriate foundation for analyzing the constitutionality of fees under the Second Amendment. Here, the court held that the "undisputed evidence" demonstrated that "the $340 licensing fee is designed to defray (and does not exceed) the administrative costs associated with the licensing scheme."
Moreover, the mere fact that the license is more expensive does not make it a substantial burden on one's Second Amendment rights. The opinion interestingly includes a "see also" and cites Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) including this quote in the parenthetical: (“The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to [exercise the right] cannot be enough to invalidate it.”)
Even if the NYC law were subject to intermediate scrutiny - - - as the concurring opinion by Judge John Walker asserts - - - and as the Second Circuit previously applied to a concealed handgun law - - - the fee would still survive, as Judge Walker agrees.
As for the equal protection claim against the state statute allowing differential fees, the court rejected the argument that because a fundamental right is at stake, the state statute merited strict scrutiny. The court held that a fundamental right was not "burdened" and further that geographic classifications are not suspect. Applying rational basis, the court found it easily satisfied.
Again, Judge Walker concurring would apply intermediate scrutiny, and again, he found that the higher fee would survive the heightened level of scrutiny.
The disagreement amongst the judges regarding the standard is thus of no moment - - - at least in this case. But further litigation about what constitutes a burden on a Second Amendment rights will likely continue.
Monday, July 8, 2013
The Electronic Privacy Information Center, or EPIC, today asked the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court, or FISC, compelling the disclosure of domestic phone records by Verizon. We previously posted on the FISC order here.
EPIC filed a petition for a writ of mandamus directly with the Supreme Court, bypassing the usual route through the lower courts, because of the unique nature of the FISC order. EPIC claims that FISC Judge Roger Vinson ordered the disclosure of domestic phone records in violation of the FISC's statutory authority under the Foreign Intelligence Surveillance Act, or FISA. But EPIC says that under the FISA, the only court that can reverse Judge Vinson's order is the Supreme Court. Moreover, the order creates exceptional circumstances relating to the invasion of privacy, privileged communications, and the First Amendment that warrant mandamus relief. Thus, the mandamus petition.
On the merits, EPIC argues that Judge Vinson exceeded his authority under FISA:
[T]he FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls." The Business Records provision does not enable this type of domestic programmatic surveillance.
Specifically, the statute requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . . . ." 50 U.S.C. Sec. 1861(b)(2)(A). It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation. Thus, the FISC simply "ha[d] no judicial power to do what it purport[ed] to do."
Petition at 18.
EPIC also argues that the order violates the separation of powers, insofar as it compels the disclosure of phone records of the judicial and legislative branches to the executive branch.
July 8, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
It's summer in North America and that means scholarship-time for legal academics. No matter what the subject of your in-progress/forthcoming/almost finished article, take time to read a brief essay by Ronald Collins and Lisa Lerman, Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts By Ronald K.L. Collins & Lisa Lerman, 88 Wash. L. Rev. 321 (2103), available here.
They argue that your author's footnote might need a bit of expansion to disclose any direct or indirect compensation or involvement in your subject. Disclosure is not the norm in law reviews, especially when it comes to academics as opposed to practioners. The comparison is even more stark when it comes to the practices in other disciplines.
But their suggestion, if rare, is hardly new. Indeed, they quote from the AALS "Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities":
A law professor shall disclose the material facts relating to receipt of direct or indirect payment for, or any personal economic interest in, any covered activity that the professor undertakes in a professorial capacity . . . . Disclosure of material facts should include: (1) the conditions imposed or expected by the funding source on views expressed in any future covered activity and (2) the identity of any funding source, except where the professor has provided legal representation to a client in a matter external to legal scholarship under circumstances that require the identity to remain privileged under applicable law. If such a privilege prohibits disclosure the professor shall generally describe the interest represented.
And, perhaps less surprising perhaps, it's something Justice William O. Douglas recommended almost half of a century ago.
They provide some scintillating examples worth consideration. These might make you reflect not only on your own ethical responsbility to disclose, but perhaps also upon the missing disclosures in sources upon which you rely, as in the Second Amendment area which we discussed.
And it is certainly worth passing on to your school's law review editors.
A Fourth Circuit panel issued its opinion in Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia holding that Lexington's "flag pole" ordinance limiting flags to that of the nation, state, and city was constitutional under the First Amendment. The Sons of Confederate Veterans argued on appeal that the City was motivated in enacting the ordinance by its desire to bar the Confederate flag from its flagpoles. For the court, even if that were true, it was of no constitutional moment. The flag poles had been a "designated public forum," but the
Ordinance has the effect of closing a designated public forum — the perpetual availability of which was never guaranteed — to all private speakers. The City was entitled to listen to the public and to enact ordinances that are constitutional in text and in operation, and that are supported by the electorate.
The court quickly added, however, that
the Ordinance specifies that it does not “prohibit or curtail individuals from carrying flags in public and/or displaying them on private property.” Lexington City Code § 420-205(C) (2011). As a result, all private groups and individuals remain free to express their flag-bound messages in other ways.
The limitation of the flag poles - - - or flag standards - - - may or may not be operative in a reported plan by a Louisiana legislator to ban the rainbow flag (aka LGBT pride flag) from government property. The prompting incident was reportedly a rainbow flag that was "hoisted" on a government flag pole to less than universal acclaim.
If the Louisiana legislators need some advice about drafting a constitutional ordinance, they might have a look at Sons of Confederate Veterans. A ban on all nongovernmental flags, including the rainbow flag, on government property? Violative of the First Amendment. A ban on all nongovernmental flags on Government-owned flag poles? Likely to survive a First Amendment challenge. And - - - just to be clear - - - a ban on rainbow flags while allowing Confederate flags? Not constitutional.
And a government ban specifically on the "rainbow Confederate flag" ???