Thursday, July 19, 2012
Professor Colin Starger has a terrific visual for teaching the commerce clause next semester:
Take a look at the entire "poster" available on ssrn here; the explanations are necessary and excellent.
Monday, July 2, 2012
What did Chief Justice Roberts do to the Necessary and Proper Clause in last week's ruling on the universal coverage provision of the Affordable Care Act?
Not much. Here's why.
Let's start with the opinion. Chief Justice Roberts wrote last week that universal coverage--the so-called individual mandate--exceeded Congress's authority under both the Commerce Clause and the Necessary and Proper Clause (although he wrote for a five-Justice majority that it fell within congressional taxing authority). (We wrote here about the Chief's opinion on the Commerce Clause.) In so writing, the Chief rejected the government's argument that because Congress had authority under the Commerce Clause to enact the guaranteed issue and community rating provisions, it also had authority under the Necessary and Proper Clause to enact universal coverage. After all, everybody agreed that guaranteed issue and community rating alone wouldn't work; they needed an individual mandate.
(Here's a primer. Guaranteed issue requires insurance companies to provide insurance to all comers. Community rating control premium rates within a particular community. Under these provisions, insurance companies will have to cover everyone (including those with high medical costs), within a range of premium rates. But when an insurance company covers everyone (including those with high medical costs), premiums go up. And when premiums go up, without an ability to discriminate, individuals are driven out of the market. Thus, guaranteed issue and community rating will drive up costs and drive down coverage. Unless, that is, individuals are required to buy insurance. If everybody has to buy insurance, the cost-distribution within the insurance pool will keep rates low (because the healthy, in effect, subsidize the unhealthy through the pool), and coverage (obviously) goes up.)
Chief Justice Roberts wrote that the Necessary and Proper Clause wasn't so malleable. He wrote that while universal coverage may be "necessary," it is not "proper," because universal coverage "draw[s] within its regulatory scope those who would otherwise be outside of it." Op. at 30. In other words, individuals are not the subject of the guaranteed issue and community rating regulations (insurance companies are); they are therefore not within the regulatory scope of valid congressional regulation under the Commerce Clause; and they are therefore outside of the scope of the Necessary and Proper Clause. Op. at 29-30. The Chief wrote that the Court's prior cases blessed congressional action under the Necessary and Proper Clause only when the subject of regulation under the Necessary and Proper Clause was already in the regulatory scope of congressional regulation under its principal Article I power. Here's how he described it:
The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power. This is in no way an authority that is "narrow in scope" . . . or "incidental" to the exercise of the commerce power. Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is "necessary" to the Act's insurance reforms, such an expansion of federal power is not a "proper" means for making those reforms effective.
Op. at 29-30.
So, what's the effect of the Chief's opinion on the Necessary and Proper Clause? Very little.
There are two problems. The first one is exactly the same problem with the Chief's opinion on the Commerce Clause, only here it's even more pronounced. That is: the opinion may well be dicta, and, even if it's not, it doesn't have strong support as a guiding opinion under the Marks rule. Like Chief Justice Roberts's opinion on the Commerce Clause, his opinion on the Necessary and Proper Clause is not necessary to the Court's conclusion. Moreover, he's writing just for himself. The four "liberals" would have upheld universal coverage under the Necessary and Proper Clause. And the four other "conservatives" declined to join the Chief--and were in even sharper disagreement with him than they were on the Commerce Clause. (The four other conservatives would apparently read the Necessary and Proper Clause as allowing only regulation that is absolutely necessary to the named Article I powers--a reading that flies in the face of McCulloch v. Maryland and the Clause's entire history. Dissent, at 9-10.)
Moreover, the Chief's analysis is weak and apparently disavowed by all on the Court (though for different reasons), further alienating and weakening it. Chief Justice Roberts supports his new Necessary and Proper rule--that Congress can regulate only those things already within the regulatory scope--by describing the Court's prior Necessary and Proper cases. But while his description may be accurate on the facts, it is not supported by the language and analysis of those rulings. For example, the Court just two terms ago ruled in Comstock that the Necessary and Proper Clause allowed congress to authorize the detention of federal prisoners beyond their release date if they were deemed "sexually dangerous." Why? Because the Necessary and Proper Clause allows Congress to enact federal criminal law (in furtherance of its named Article I powers), and therefore to sentence offenders, and therefore to jail offenders, and therefore to keep dangerous offenders off the streets, even after their release dates--all in the name of the Necessary and Proper Clause.
Now it turns out that offenders were already within the regulatory scheme. But the Court's ruling did not turn on that, and, in fact, nowhere mentioned it. Instead, the Court said, quoting the usual language from McCulloch, that the Necessary and Proper Clause authorized Congress to take any action that was rationally related to its enumerated powers.
(The Court's opinion in Comstock was written by Justice Breyer. And Chief Justice Roberts joined it in full, even though he could have signed on with one of two more restrictive concurrences, written by Justice Kennedy and Justice Alito.)
In short, nothing in Comstock, or the Court's other Necessary and Proper decisions, sets out Chief Justice Roberts's new rule. It's just his gloss. And one, apparently, that nobody else on the Court subscribes to in his way and for his reasons.
But assuming that the courts treat the Chief's opinion as (at least) guiding, however--as they likely will--the second problem is that the Chief's opinion is quite narrow and thus only applicable to a small set of cases, if any. After all: How often does Congress seek to regulate something under the Necessary and Proper Clause that isn't within the regulatory scheme of its power-in-chief? By the Chief Justice's own reckoning: The Court has never seen this case.
And even if the Chief's opinion is guiding, courts must read it alongside Justice Breyer's majority opinion in Comstock--the Court's next-most recent foray into the Necessary and Proper Clause, and, again, an opinion that Chief Justice Roberts signed in full. Read alongside the expansive and capacious Necessary and Proper Clause described in Comstock, Chief Justice Roberts's new rule seems a narrow exception, indeed. Chief Justice Roberts did nothing last week to chip away at that expansive and capacious Clause; in fact, his opinion last week reaffirmed its long-standing principles (just as his opinion on the Commerce Clause reaffirmed the Court's broadest interpretations of that Clause).
In the end, the Chief's opinions on both the Commerce Clause and the Necessary and Proper Clause are almost certainly moot, anyway. The real story of the case is Chief Justice Roberts's majority opinion upholding universal coverage under the tax power. Any future Congress seeking to enact legislation that would push up against Chief Justice Roberts's new rules for the Commerce Clause and the Necessary and Proper Clause would do well to simply enact the policy as a tax penalty.
Friday, June 29, 2012
In a word: No. Or, even if yes, just by a hair--by adding just a footnote to the current doctrine. Here's why.
Let's start with some background on the health care case. While a five-Justice majority on the Supreme Court, led by Chief Justice Roberts, ruled yesterday that Congress could enact universal coverage in the Affordable Care Act under its taxing authority, a different five-Justice majority ruled that it couldn't enact it under the Commerce Clause. Chief Justice Roberts found himself--or, more precisely, placed himself--with each majority.
Chief Justice Roberts wrote the opinion of the Court on the taxing authority. His opinion on this point was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.
He also wrote an opinion on the Commerce Clause. But he only wrote for himself. While Justices Scalia, Kennedy, Thomas, and Alito joined him in the result--that Congress exceeded its Commerce Clause authority in enacting universal coverage--those four wrote a decidedly distinct opinion, styled a dissent, and did not join Chief Justice Roberts's opinion on this issue. The Chief's opinion on the Commerce Clause is his own.
In sorting this out, as an initial matter, we need to know whether this single-Justice opinion, even if written by the Chief, is controlling. There are two issues.
First, the Marks rule. This rule, from Marks v. United States, says that when a majority on the Court agrees in a result, but cannot agree on a reason, the guiding opinion for future cases is the narrowest opinion on the winning side. In the language of Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds."
Here, Chief Justice Roberts wrote a slightly narrower opinion on the Commerce Clause than the dissenters. But just barely. They all said that Congress lacks authority to regulate inactivity (more on this below), and that therefore Congress lacks authority to require individuals to purchase health insurance. This just-barely-narrower opinion, along with the Court's own characterization of Chief Justice Roberts's opinion as "an opinion" and the dissenters' opinion as "a dissenting opinion," Chief Justice Roberts's opinion, so far, is almost surely the guiding opinion under the Marks rule.
But there's another issue. It's not clear that Chief Justice Roberts's opinion on the Commerce Clause is anything more than dicta. In other words, Chief Justice Roberts's ruling on the Commerce Clause isn't necessary to the Court's ruling upholding universal coverage under the taxing authority. Chief Justice Roberts argued in Section IIID of his opinion--again, writing just for himself here--that his analysis of the Commerce Clause was necessary, because "the statute reads more naturally as a command to buy insurance than as a tax," and "[i]t is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question." But this is an exceedingly weak justification. There's nothing that says that an argument presented alternatively must be addressed in the order presented. (Here, the government argued first that the Commerce Clause supported universal coverage and second that the taxing authority did.) Indeed, the better course--the judicial minimalist course--would be not to address it.
More importantly, Chief Justice Roberts's explanation gets only one vote. Moreover, it's not necessary to any other Justice's analysis--even the dissenters. (Why? Because the dissenters object to everything. They don't need to explain why they address the Commerce Clause--they have to address it as an alternative argument, because they also rule universal coverage unconstitutional under the taxing authority.) Thus, it is not the holding of the Court on its own (because it gets only one vote) and it is not the guiding holding of the case under Marks (because it reflects the ruling of no other Justice). If Chief Justice Roberts's weak explanation isn't the law, it seems, his analysis based upon that justification is also highly suspect.
If all this is right, then we have a highly fractured Court with no controlling opinion on the Commerce Clause. If that's right, then the Commerce Clause hasn't changed.
But let's assume that's not right--because, in fact, courts will probably treat Chief Justice Roberts's opinion on the Commerce Clause as guiding. Does the substance of his opinion limit the Commerce Clause?
The answer: Yes, but just by a hair. Chief Justice Roberts wrote that the Commerce Clause doesn't allow Congress to require activity where there is no existing market. In other words, Congress can't compel individuals to act without a background interstate market.
But Chief Justice Roberts was also very careful to write that Congress has never done this before. (Indeed, that's his stated reason to "pause to consider the implications of the Government's arguments." Op. at 18.) Agree or disagree with that conclusion, by its own terms it means that this is an exceptional, outside case. That's the same thing that the government has said all along, although in different terms: the health-care market is different.
If everybody agrees that this is an exceptional case, Chief Justice Roberts's restriction on the Commerce Clause--that Congress can't regulate inactivity without a background interstate market--applies only in the rarest of circumstances. Other than the very unusual hypos the Court tested at oral argument--a market for burial services (justifying a requirement to buy burial insurance), a market for emergency services (justifying a requirement to buy a cell phone to dial 911), and, of course, a market for food (justifying a requirement to buy broccoli)--this restriction will have no effect on congressional authority.
Indeed, even Chief Justice Roberts wrote--citing and reaffirming even those cases that reflect the broadest Commerce Clause power we've seen--that it never has had an effect on congressional authority.
The only workable rule in the opinion is that Congress can't regulate inactivity when there's no background interstate market. But by the Chief's own reckoning, this will only apply in the rarest of cases.
In other words: Chief Justice Roberts may have restricted the Commerce Clause, but just by a hair. The restriction will be a mere footnote when we teach the modern doctrine.
But some have argued that the spirit of the opinion (if not the law of the opinion) reflects a restricted authority. The bottom-line holding belies this: Congress has authority to enact universal coverage. The aggregate weight of congressional authority hasn't much changed, even if it shifted a little from commerce to taxation.
In the end, Chief Justice Roberts's opinion on the Commerce Clause will make little difference. There's a remote chance that it won't emerge as the controlling or guiding opinion; but even if it does (as seems highly likely), it just doesn't change the doctrine or the spirit all that much.
Thursday, June 28, 2012
A sharply divided Supreme Court today upheld key provisions in the Affordable Care Act (the "ACA," or Obamacare). The upshot is that five Justices (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) held that universal coverage (or the individual mandate) is upheld, and that a three-Justice plurality (Chief Justice Roberts and Justices Breyer and Kagan) held Medicaid expansion is upheld in a somewhat weaker form. A different five Justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) held that the commerce clause did not support universal coverage (but for different reasons).
The ruling means that universal coverage stands, and Medicaid expansion stands, although in a somewhat weaker form.
Chief Justice Roberts wrote for the majority; by issue:
Taxing Clause. A five-Justice majority held that Congress could enact the universal coverage provision (also called the individual mandate) under the taxing authority. Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that the tax penalty for failing to purchase health insurance was a valid tax.
First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the "prohibitory" financial punishment in Drexel Furniture. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by the IRS through the normal means of taxation--except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.
Op. at 35-36. The majority was untroubled that the tax penalty could be a "tax" for taxing authority purposes, but a non-"tax" for Anti-Injunction Act purposes: Chief Justice Roberts wrote that Congress itself enacted the AIA and could therefore itself draft around it (which it did here); but Congress's taxing authority may support congressional action whether or not Congress calls its action a "tax."
Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that universal coverage exceeded the taxing power.
Commerce Clause. A five-Justice majority concluded that the Commerce Clause did not support congressional authority to enact universal coverage, but for two different reasons. Chief Justice Roberts, writing for himself alone, wrote that universal coverage amounted to regulating before entrance into the market for health services--i.e., regulating someone who's "inactive." (And Chief Justice Roberts didn't buy the government's claim that the maarket for health insurance was integrally connected to the market for health care.) Chief Justice Roberts wrote that universal coverage was unprecedented and unsupported by the Court's cases. (Chief Justice Roberts justified reaching the issue--even though the case could be (and was) decided on the taxing power alone--because, he said, the government designed universal coverage first as a regulation and only secondly (or alternatively) as a tax.)
Justices Scalia, Kennedy, Thomas, and Alito took a harder line, arguing that Congress here went too far, because it first sought to create commerce, and then to regulate it.
Medicaid Expansion. Chief Justice Roberts wrote for himself and Justices Breyer and Kagan that Medicaid expansion as-is under the ACA--in which a state declining to participate in Medicaid expansion would stand to lose its entire pot of federal Medicaid money--was unduly coercive. But the same plurality held that Medicaid expansion could be saved by simply reading the statute to mean that a declining state could lose only the additional federal money that would have come with the expansion.
Justices Ginsburg and Sotomayor wrote separately to argue that Medicaid expansion as-is under the ACA did not violate the Constitution.
Justices Scalia, Kennedy, Thomas, and Alito dissented, writing that Medicaid expansion was flatly unconstitutional.
June 28, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Spending Clause, Taxing Clause | Permalink | Comments (3) | TrackBack (0)
Tuesday, May 29, 2012
Washington Superior Court Judge Sharon S. Armstrong denied the plaintiffs' motion for a preliminary injunction, or in the alternative for a permanent injunction and mandamus, in Mackey v. McKenna, the state court suit by a group of Washington women against the state attorney general challenging the state AG's role in the Affordable Care Act litigation now at the Supreme Court.
As we posted, a group of Washington women sued state AG Rob McKenna seeking a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate. The plaintiffs claimed that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place--in other words, to sever the mandate. Yet he joined the state in the multi-state suit challenging the entire ACA, and the plaintiffs' position in that case that the mandate was not severable. The plaintiffs said that this violated his professional duties to Washingtonians.
Judge Armstrong rejected the argument. She wrote:
Had Attorney General McKenna taken the formal legal position that only severability could protect the interests of the State of Washington and its citizens, and then filed contrary briefing in the federal courts, he would have violated his ethical duty to faithfully represent the interests of the State of Washington and its residents, would have improperly relinquished control over his role in the litigation to other attorneys general, and filed an erroneous brief to the U.S. Supreme Court.
But here the court found that statements by McKenna contrary to his litigation position were merely "political statements by an elected official," and were thus "issues to be addressed in the political realm." In the end, Judge Armstrong wrote that the court "lacked authority to second-guess the attorney general's legal strategy in the health care reform litigation, whatever the wisdom of his legal strategy."
The ruling is hardly a surprise. The case was a stretch to begin with, and even the plaintiffs' requested relief wouldn't have changed the picture at the Supreme Court. It was really about holding AG McKenna accountable for his statements, and his actions. Judge Armstrong was clear: Any holding-to-account should go through the ordinary political process, not the courts.
Thursday, May 10, 2012
Law students know him as the "Katzenbach" of Katzenbach v. McClung, 379 U.S. 29 (1964), the "Ollies BBQ case" upholding Congressional power under the Commerce Clause for the accomodations portions of the 1964 Civil Rights Act, and of Katzenbach v. Morgan, 384 U.S. 641 (1966), the "Puerto Rican voting case" upholding Congressional power under §5 of the Fourteenth Amendment for the Voting Rights Act of 1965.
The NYT obituary highlights Katzenbach's actions during the civil rights era: "Perhaps his tensest moment came on June 11, 1963, when he confronted George C. Wallace in stifling heat on the steps of the University of Alabama in Tuscaloosa."
The WaPo obituary places him at the center of government during a turbulent era: "Katzenbach’s time in government was like a history of government in the 1960s: The Bay of Pigs. The Cuban Missile Crisis. Integration of schools. The Warren Report. The Civil Rights Act. Vietnam." It also links him as a source for Robert Caro's biography of LBJ.
The ACS Blog has a moving personal remembrance by Estelle Rogers.
[image: Katzenbach, 1968, via]
Friday, April 20, 2012
The animal fighting statute provides "it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture" and defines an "animal fighting venture" as
any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment . . . .
The Fourth Circuit opinion in Gilbert, however, had "no difficulty concluding that Congress acted within the limitations established by the Commerce Clause in enacting the animal fighting statute." Writing for a unanimous panel, Judge Barbara Milano Keenan stated that there was "a substantial relation to interstate commerce," unlike the statutes invalidated in United States v. Lopez (1995) and United States v. Morrison (2000). Extensively discussing Congressional findings and legislative history, she concluded that "the link between animal fighting ventures and its effect on interstate commerce is not attenuated."
Rather, the link is direct, because animal fighting ventures are inherently commercial enterprises that often involve substantial interstate activity. Thus, in contrast to the statute at issue in Lopez, there is no need to "pile inference upon inference" in order to establish the link between animal fighting and interstate commerce.
In sum, our task is simply to determine, with a presumption of constitutionality in mind, whether there is a rational basis for concluding that the practice of animal fighting, when conducted for "purposes of sport, wagering or entertainment," substantially affects interstate commerce.
The opinion rejected the argument that a defendant required scienter regarding the affect on interstate commerce, an argument that was expanded in the companion case of Lawson.
In Lawson, the defendants/appellants added to the Commerce Clause argument an argument pursuant to the Fifth Amendment's equal protection component. The focus was on the varying scienter requirements depending upon state law. Under the animal fighting statute, if a defendant lives in a jurisdiction where gamefowl fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense that the defendant knew that at least one bird in the fighting venture traveled in interstate or foreign commerce. In contrast, if a defendant lives in a jurisdiction that prohibits gamefowl fighting, the government need only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the bird traveled in interstate or foreign commerce.
In an opinion again authored by Judge Keenan, the panel applied rational basis scrutiny and found that the classification amongst residents of various states was rationally related to a legitimate purpose. Although, as Judge Keenan noted, "cockfighting is illegal in all 50 States and the District of Columbia," it is legal in several United States territories such as Guam and Puerto Rico. The increased statutory burden for prosecutions in "states" (including territories) merely reflects "the decision of Congress to accommodate principles of federalism, a concern that unquestionably is a legitimate governmental interest."
Although not successful on the facial constitutional attack to the statute, the court did rule in Lawson that there were reversible errors in the trial. The panel concluded that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute and vacated the defendants’ convictions for violating the animal fighting statute, while upholding other convictions.
These companion cases are carefully reasoned and nicely structured, with solid yet relatively concise analysis. They take the Commerce Clause and equal protection arguments seriously, even if they are ultimately rejected.
[image: "Cock-fighting Match" by John Kay, circa 1826, via]
Sunday, April 15, 2012
Einer Elhauge (Harvard) writes in The New Republic that the Founders supported health insurance mandates in his piece If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?--and that therefore so should the Court.
According to Elhauge, the Founders supported health insurance mandates twice. Here's what he has to say:
In 1790, the very first Congress--which incidentally included 20 framers--passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That's right, the father of our country had no difficulty imposing a health insurance mandate. . . .
[L]ater, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That's right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.
Moreover, Elhauge argues that because the founders approved of health insurance mandates, they must certainly be proper (as in Necessary and Proper) in the PPACA.
Tuesday, April 3, 2012
In case you missed it, here are President Obama's full comments on the ACA litigation in response to a reporter's question yesterday at a joint press conference, with President Calderon of Mexico and Prime Minister Harper of Canada:
With respect to health care, I'm actually--continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close call.
I think it's important--because I watched some of the commentary last week--to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.
The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it. There are tends of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.
Millions of senior are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.
So that's just the part that's already been implemented. That doesn't even speak to the 30 million people who stand to gain coverage once it's fully implemented in 2014.
And I think it's important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint--that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. . . .
As I said, we are confident that this will be over--that this will be upheld. I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.
April 3, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Spending Clause, Supreme Court (US), Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 27, 2012
The Supreme Court today heard oral argument in the congressional authority portion of the challenge to the Affordable Care Act--whether Congress had authority under the Commerce Clause or its taxing power to enact the minimum coverage requirement. Links to the audio files and transcript are here.
The questions at argument suggest that the case may turn on Chief Justice Roberts or Justice Kennedy (or both), both of whom, in different ways, appeared to give serious attention and thought to both sides of the argument. But if they leaned, both also seemed to lean toward opponents of the provision. For example, both (but Chief Justice Roberts perhaps more than Justice Kennedy) seemed much more skeptical of the government's argument than the opponents' argument. And Justice Kennedy at one point suggested that the government face an even higher burden, given the "unprecedented" nature of the provision. He also gave a short statement on the tradition in American law of not imposing a duty to act.
Justices Scalia and Alito seemed more set in their positions against the provision; and Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed more set in their positions in favor. (Justice Thomas was silent, but his position (against) was never seriously in doubt.)
In short, this could be a squeaker one way or the other.
Several themes caught the Court's attention:
Nature of the Market. The Court spent time figuring out whether the relevant market is unique, because everyone will at some point enter it. This question turns on what the relevant market is (see below) and, at least in part, on the issue of timing (see below).
A Limiting Principle. The Court looked for a limiting principle in the government's position--one that would distinguish the parade of horribles offered by the Justices, including everything from the government requiring us all to eat broccoli to the government requiring us all to buy cell phones to use for emergencies. SG Verrilli came back with limiting principles distinguishing these examples, and Justice Kennedy seemed genuinely interested in them (or at least in hearing the states' responses to them).
The Relevant Market. The Court spent considerable time on the familiar arguments about the relevant market--is Congress regulating the market for health insurance, or the market for health care (or health care payment)? If the former, opponents argue that Congress is requiring something of people not yet in the market, and thus exceeding its authority under the Commerce Clause. Chief Justice Roberts and Justice Kennedy both seemed open at least to hearing the government's argument that the minimum coverage requirement regulates the market for health care (not health insurance).
Timing. Timing was an issue--whether Congress could regulate substantially before a person enters the market for health care, or whether Congress could only regulate at the point of entry, when, e.g., a person goes to the emergency room. Everyone seemed to agree that Congress could regulate at the point of entry; the question is how far before that Congress can regulate--and whether the Commerce Clause has anything at all to say about this.
Congressional Creation of the Market (and the Problem). Some expressed some concern that Congress created the interstate market and the very problem that it sought to address through the minimum coverage requirement by mandating that providers give free care to indigents. Even if this is so, however, it's not clear, as Justice Breyer noted, why this would be a constitutional problem: Congress creates interstate markets all the time.
Part of a Package. The Court gave some attention to the government's argument that the minimum coverage requirement was necessary to make the guaranteed issue and community rating provisions work--an argument that draws on Gonzales v. Raich. Opponents argued that Congress could have enacted these provisions without the minimum coverage provision; the government said that would have been ineffectual.
Policy. There were a couple exchanges on pure policy, in particular other ways that Congress might have achieved its goals. This shouldn't have any bearing on the constitutional question: congressional authority doesn't require something like a least-restrictive-means analysis. If these exchanges should translate into constitutional law, however--if, e.g., the Court looks to alternatives to show why the minimum coverage provision exceeds congressional authority--the result could tighten congressional authority in general along the lines of a least-restrictive-means test. This would mark an important change in the level of deference the Court usually gives to Congress in areas of congressional authority.
The Court spent more time on the Commerce Clause than on the taxing authority, but that's perhaps not a surprise. The Justices' leanings didn't seem to change whether the questioning went to the Commerce Clause or to the taxing authority.
For those hoping to get an idea of where the Court is heading with the core constitutional issues in the ACA challenge, yesterday's oral arguments on the Anti-Injunction Act must have been a disappointment. The Court yesterday drilled into the finer points of tax law--in particular, arguments whether the AIA is jurisdictional and, if so, whether it applies--but it gave few, if any, clues on the con law issues that will dominate oral argument today and tomorrow. Yesterday's argument did suggest this, though: The Court will get to the merits now, and not punt based on the AIA.
The audio file and transcript are available here.
Justice Alito got right to a main con law point with SG Verrilli, asking how the government can consider the tax penalty a non-tax for AIA purposes but a tax for Article I purposes:
Justice Alito: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax [to support the universal coverage provision of the ACA].
Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
General Verrilli: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today.
Tomorrow the question is whether Congress has authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.
It's not clear whether this concern about the government's position on the tax penalty will have any constitutional traction today, however. There's no requirement that a "tax" for taxing authority purposes must also be a "tax" for every other purpose. The government's position may seem at odds with itself, but it probably doesn't matter for any constitutional reason.
Other Justices asked about those subject to the universal coverage requirement, but exempt from the tax penalty, particularly the poor, suggesting that the taxing authority alone isn't enough to support the universal coverage requirement for this population. Several Justices were interested in whether the universal coverage requirement could be separated from the tax penalty, apparently setting up a line of inquiry today about whether the Commerce Clause alone could support the universal coverage provision for this population. Again, though, it's not clear how much this will matter for arguments today: The Commerce Clause has always been a potentially independent authority--maybe even the best authority--to support the universal coverage provision for every population.
The Court asked some questions about whether the tax penalty raised revenue. This line is almost certainly more important for AIA purposes than for taxing authority purposes, though. And in any event, as SG Verrilli reminded the Court, the CBO has projected that the tax penalty will raise revenue.
Finally, Justice Sotomayor asked a line of questions about state standing to challenge the universal coverage provision. This line may come back today, but it's not clear from the brief exchange (on page 72 of the transcript) that it will get much play.
In short, argument yesterday gives few clues about the con law issues on display today and tomorrow. At most, we have some likely themes for arguments today and tomorrow. And we almost certainly have this: The Court is likely to address the merits now, and not punt under the AIA.
March 27, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 21, 2012
The Supreme Court issued an order today alloting oral argument time in the challenges to the Affordable Care Act--six hours of argument altogether. Here's how the argument time will be shared:
March 26 and 27
- On the Minimum Coverage Provision, the Solicitor General gets 60 minutes; respondents Florida, et al. get 30 minutes; and respondents National Federation of Independent Business, et al. get 30 minutes.
- On the Anti-Injunction Act, the Court-appointed amicus gets 40 minutes; the Solicitor General gets 30 minutes; and the respondents get 20 minutes.
- On Medicaid expansion, the petitioners get 30 minutes; and the Solicitor General gets 30 minutes.
- On severability, the petitioners get 30 minutes; the Solicitor General gets 30 minutes; and the Court-appointed amicus gets 30 minutes.
February 21, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Spending Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Friday, January 6, 2012
Parties today filed opening briefs in the cases challenging the federal Affordable Care Act, now before the Court. We covered the Court's grant and argument schedule here.
The government filed its opening brief defending the minimum coverage provision, also called the individual mandate, under the Commerce Clause, the Necessary and Proper Clause, and Congress's taxing power. As we might expect, the government emphasizes the congressional findings in the act and the data supporting its argument that everyone is in the relevant market. It defends Congress's power to enact the provision principally as an essential part of a larger regulatory scheme:
The minimum coverage provision plays a critical role in that comprehensive regulatory scheme by regulating how health care consumption is financed. It creates an incentive for individuals to finance their participation in the health care market by means of insurance, the customary way of paying for health care in this country, and it works in tandem with the Act's other provisions to expand the availability and affordability of health insurance coverage. In particular, the minimum coverage provision is key to the viability of the Act's guaranteed-issue and community-rating provision.
Brief, at 17-18.
The government also defends the provision as a stand-alone regulation of commerce. In particular, it argues that the election to self-insure is an economic act that Congress can regulate and hotly disputes the opponents' claim that some self-insured are non-cost-shifters, thus not subject to regulation:
The circumstances of this case well illustrate the flaws in respondents' premises. At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance . . . . That belief proved incorrect. Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers.
Brief, at 44. The government forcefully challenges the claimed distinction between "activity" and "inactivity," and argues that the self-insured aren't "inactive" in this market, anyway. Brief, at 47-52.
Severability is a remedial inquiry that turns on legislative intent. The ultimate question is not whether the balance of an act can function independently without an invalidated provision. That is a necessary, but not sufficient, condition for preserving the balance of the statute. The ultimate question is whether Congress would have enacted the statute without the invalidated provision. Here, the answer is clear[: No.]
Brief, at 24.
Recall that the connection between the government's principal argument--that the minimum coverage provision is an essential part of the larger ACA--and the state and private petitioners' argument--that the minimum coverage provision is not severable--was a focus of Judge Vinson's ruling (holding that the minimum coverage provision exceeded Congress's authority, and that it was not severable, because the government said that it formed an essential part of the ACA) earlier in this litigation.
The briefs today break little new ground. The fundamental arguments are familiar, even if they're sharpened, considerably.
Tuesday, November 8, 2011
A three-judge panel of the D.C. Circuit ruled today in Seven-Sky v. Holder that the so-called individual mandate in the federal Affordable Care Act is constitutional.
Judge Silberman and Judge Edwards agreed that the Commerce Clause authorizes Congress to enact the provision. Judge Kavanaugh, dissenting, argued that the Anti-Injunction Act barred consideration of the claim.
Judge Silberman wrote a notably concise and straightforward opinion for the court that dispelled the plaintiff's theory, which he called "novel," that Congress can't regulate inactivity. Here's the gist:
To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question--presented here--of whether "inactivity" can also be regulated. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .
Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity." For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance.
Op. at 30-31 (emphasis in orginal; citations omitted).
The court similarly summarily dismissed the plaintiff's claims about federalism, intrusion into areas of traditional state concern, and the like. Judge Silberman wrote that the idea that health care and health insurance are enclaves of traditional state concern is implausible, given the ubiquity of federal regulation in these areas.
Judge Silberman also mentioned something that we don't always see in these cases: Congressional acts are presumed constitutional. He says that "this may be our most important consideration."
[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]
Monday, October 24, 2011
Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?
Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney. He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.
Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional. Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.
When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater. Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act. In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate. Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964. In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill. Perry wrote:
The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill. They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.
Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians. The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees. The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here). It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964. As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.
Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files? Did it ever?
Almost a half-century has passed. It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be). But page-number precise references to a document that is not available is intriguing.
So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.
[image: Robert Bork, 2007, via]
October 24, 2011 in Books, Commerce Clause, Congressional Authority, Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Gender, History, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Wednesday, September 28, 2011
Three parties--two sets of plaintiffs and the U.S. government--filed petitions today asking the Supreme Court to review the Eleventh Circuit ruling last month in State of Florida v. HHS striking down aspects of the Affordable Care Act. In seeking Court review of the three-judge panel decision, the parties are bypassing en banc review and taking the case directly to the Court.
Recall that the Eleventh Circuit ruled the so-called individual mandate unconstitutional, but also ruled it severable from the rest of the ACA. In particular, the court ruled that the individual mandate exceeded congressional authority under both the Commerce Clause and the Taxing Clause; that the individual mandate was severable from the rest of the ACA; and that Medicaid expansion did not unduly coerce the states and thus exceed congressional authority under the Spending Clause. The ruling gave both sides plenty to appeal.
And the petitions for cert. filed today reflect it. Thus the National Association of Independent Business and two private individuals, all plaintiffs in the case, took on the Eleventh Circuit's ruling on severability. (Recall that the district court ruled the individual mandate non-severable, in part because the government argued that it was an essential part of the overall ACA. And becuase it ruled that Congress lacked authority to enact the individual mandate, the district court also struck down the entire ACA. The Eleventh Circuit reversed.) These petitioners also say that the Eleventh Circuit's case is a better vehicle with which to evaluate the ACA, because it involves all the issues, but none of the problems, of the cases out of the other circuits. Thus, they say that the Sixth Circuit ruling in Thomas More, upholding the individual mandate, includes a contested standing issue and failed to address severability of the individual mandate (because the parties didn't argue it); the Fourth Circuit in Liberty University ruled that the plaintiffs' case was barred by the Anti-Injunction Act, an erroneous and now "irrelevant" ruling, in their judgment.
The state plaintiffs in the case took on the Eleventh Circuit's ruling on the Tenth Amendment and federalism. They argue that the Eleventh Circuit erred in ruling that Medicaid expansion in the ACA isn't unduly coercive and that the Supreme Court should resolve whether the so-called employer mandate provisions are constitutional as applied to the states.
Finally, the government argued that Congress had authority to enact the individual mandate under the Commerce Clause and, alternatively, the Taxing Clause. It also asks the Court to address whether the Anti-Injunction Act bars the plaintiffs' suit.
The petitions today make it all the more likely that the Court will hear a challenge to the ACA this Term. And this case seems the most likely vehicle, for all the reasons argued by the NFIB: This case puts it all before the Court--Commerce Clause, Taxing Clause, severability, Tenth Amendment, federalism, and the AIA. Both sides want a ruling on the whole thing, and this is the right case.
[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]
September 28, 2011 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Spending Clause, Supreme Court (US), Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 13, 2011
Judge Christopher C. Conner (M.D. Penn.) ruled today in Goudy-Bachman v. Sebelius that the so-called individual health insurance mandate in the Affordable Care Act exceeds Congress's authority under the Commerce Clause and the Necessary and Proper Clause. Judge Conner also ruled that the mandate is severable from the rest of the ACA, except the guarantee issue and preexisting conditions provisions (which require insurers to take all comers) because the mandate partially funds those provisions. Thus according to the ruling, all three provisions--the individual mandate, the guarantee issue, and the preexisting conditions--are unconstitutional.
Judge Conner wrote that he didn't find particularly helpful the familiar distinction (and favorite among opponents) between regulating "action" and regulating "inaction." He said that the Court had previously adopted--and later abandoned--similarly unhelpful distinctions. He didn't want to go down that road here.
But yet his own analysis then turned on exactly this kind of distinction--between an "anticipatory" regulation, and a regulation of ongoing behavior. Judge Conner wrote that the principal problem with the individual mandate is that it required insurance before the purchaser enters the market for insurance or the market for health care. He wrote that this kind of "anticipatory" requirement is unprecedented and exceeds congressional authority, but he didn't well explain why his distinction is any more helpful or determinate than the action/inaction distinction. (In fact, it seems nearly exactly the same as the action/inaction distinction: all "action" is non-anticipatory, by definition, and vice versa. Similarly, "anticipatory" is necessarily "inaction." It's not at all clear why Judge Connor's new language helps untie this knot.)
Judge Conner also expressed concern that the government's theory of authority knows no bounds and would lead to a generalized federal police power.
The ruling comes just a week after the Fourth Circuit ruled in Virginia v. Sebelius that Virginia lacked standing to sue. (Virginia's theory of standing--that the individual mandate interfered with its sovereign right to protect its own citizens from such a mandate--was very different than the plaintiffs' theory of standing here.)
Thursday, September 8, 2011
The same day that a unanimous three-judge panel ruled that the State of Virginia lacks standing to challenge the individual health insurance mandate in the Affordable Care Act, the same three-judge panel ruled by a vote of 2-1 in Liberty University v. Geithner that the Anti-Injunction Act bars individual plaintiffs from challenging the mandate as exceeding congressional taxation authority. (The AIA bars preenforcement suits challenging "any tax." The ACA imposes a tax penalty on anyone who doesn't obtain health insurance and on employers who get notice that an employee received a government subsidy for health insurance.) The ruling means that the AIA bars the suit (the first ruling of this kind by a circuit court). But it says nothing about the merits (although Judge Wynn in concurrence and Judge Davis in dissent both got to the merits--and both would have upheld the mandate).
Judge Motz wrote for herself and Judge Wynn on the AIA question. She looked to the plain language of the ACA to determine that the mandate was a tax for AIA purposes, and therefore that the AIA barred a preenforcement challenge to it. She rejected arguments that the ACA operated as a "penalty," not a "tax," that Congress intended it to operate as a penalty, and that it wasn't designed to raise revenue. But because she ruled that the AIA barred the suit, she said nothing about the underlying issue--whether Congress had authority to enact the mandate under its taxing power under the General Welfare Clause.
The ruling was (oddly) a loss for both the plaintiffs and the government on this narrow AIA question. The government previously argued that the AIA barred the suit, but it abandoned its previous position presumably to get a ruling on the merits. It didn't get such a ruling from this panel. But Judge Wynn, in addition to agreeing with Judge Motz that the AIA barred the suit, also wrote that Congress had authority to enact the health mandate under its taxation authority under the General Welfare Clause. And while Judge Davis dissented on the AIA point, he wrote that Congress had authority to enact the mandate under the Commerce Clause.
All this means that two judges on this Fourth Circuit panel would have ruled that the government had power to enact the mandate under some authority. That's the real story of the case.
Wednesday, August 24, 2011
Justice Clarence Thomas and his activist spouse Virginia could deliver a one-two punch to the Affordable Care Act's individual health insurance mandate, Jeffery Toobin writes in his New Yorker article, Will Clarence and Virginia Thomas succeed in killing Obama's health-care plan?
Toobin traces the couple's many conservative connections and argues that Virginia Thomas has worked tirelessly in her conservative policy circles against the measure just as Justice Thomas has all but called his own vote (against, if there were any doubt) when the mandate inevitably reaches the Court.
Toobin points to Justice Thomas's concurrence in Printz v. U.S. as evidence that Thomas has led the Court's thinking on the Second Amendment--and that he might lead the Court's thinking on the individual health insurance mandate. In that case, asking whether Congress had authority to require local law enforcement officers to temporarily conduct background checks on gun purchasers, Justice Thomas agreed with the majority that the law violated the Constitution, but added to the majority's reasoning. Instead of ruling only that the law violated principles of dual sovereignty (as the majority did), Justice Thomas added (for himself alone) that the original meaning of the Second Amendment might also block the law--a view that presaged the Court's approach in D.C. v. Heller, eleven years later.
Justice Thomas wrote another concurrence, in U.S. v. Lopez, that would have read a more restricted Commerce Clause than the majority in that case. If Thomas leads the Court's Commerce Clause jurisprudence as he led the Second Amendment jurisprudence, his Lopez concurrence could presage a Court ruling against the individual mandate, just as his Printz concurrence presaged the Court's approach in Heller.
But if Justice Thomas is sometimes a leader in the Court's jurisprudence, he's also sometimes completely out of step--as Toobin himself points out. Toobin points to Justice Thomas's approach to the Eighth Amendment's prohibition on cruel and unusual punishment, where Thomas's rigid originalism, on full display in his concurrence in Baze v. Rees, would allow all but the most horrific punishments.
His cramped reading of the Commerce Clause in Lopez may be similarly out of step with this Court. Remember that Chief Justice Rehnquist--no free-wheeler on the Commerce Clause--wrote the opinion of the Court in Lopez; Justice Thomas wrote separately to go him one better. In terms of Thomas's approach (even if not the result), recall that Justice Scalia, the Court's other famous originalist, even if only "faint-hearted," joined Rehnquist, not Thomas.
Justice Thomas's vote on the individual mandate may already be in. But whatever the result in the case, it doesn't seem at all certain that the Court will follow his approach.
Wednesday, August 17, 2011
This is from SCOTUSblog's same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.
My contribution focuses on the rational basis standard of review:
The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.
There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation. However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis. Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.” Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”
Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court. Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications. The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.
August 17, 2011 in Commerce Clause, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Weblogs | Permalink | Comments (0) | TrackBack (0)