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)
Sunday, August 7, 2011
SCOTUSblog is hosting an on-line symposium on the constitutionality of the Affordable Care Act. From the symposium description:
Last week the Thomas More Law Center, a Christian legal group, filed a petition for certiorari in which it asked the Court to review a Sixth Circuit decision, which rejected the group's claim that a provision of the Patient Protection and Affordable Care Act requiring all Americans to purchase health insurance by 2014 is unconstitutional. With similar challenges currently pending in the Fourth and Eleventh Circuits, it seems likely that the Court will take up the constitutionality of the Act at some point in the future--perhaps even during the upcoming Term. During the next two weeks, SCOTUSblog will host an online symposium on the Act and the Court: when and whether the Court is likely to review the Act, and how it might rule if it does.
Posts so far are here; here's a list of contributors:
- Jonathan Adler, Case Western Reserve University School of Law
- Cory Andrews, Washington Legal Foundation
- Erwin Chemerinsky, University of California – Irvine School of Law
- Richard Epstein, University of Chicago Law School
- Charles Fried, Harvard Law School
- Abbe R. Gluck and Gillian Metzger, Columbia Law School
- Mark Hall, Wake Forest University School of Law
- Dawn Johnsen, Indiana University Maurer School of Law
- Bradley Joondeph, Santa Clara University School of Law
- Orin Kerr, The George Washington University Law School
- David Kopel, Independence Institute
- John Kroger, Attorney General of Oregon
- Robert Levy, Cato Institute
- Stephen Presser, Northwestern University
- Elizabeth Price Foley, Florida International University College of Law
- David B. Rivkin and Lee A. Casey, Baker Hostetler
- Robert Schapiro, Emory University School of Law
- Steven Schwinn, John Marshall Law School
- Ilya Shapiro, Cato Institute
- Ilya Somin, George Mason University School of Law
- Laurence Tribe, Harvard Law School
- Adam Winkler, University of California Los Angeles School of Law
- Elizabeth Wydra, Constitutional Accountability Center
Tuesday, August 2, 2011
Alabama's HB56, signed into law in June, and being touted as the "nations' toughest immigration law," is the subject of another challenge in federal court. Last month's lawsuit, which we discussed here, Hispanic Interest Coalition of Alabama v. Bentley, had eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause; First amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and Sixth Amendment.
The DOJ complaint, in U.S. v. Alabama, focuses on Supremacy Clause issues, as might be expected. Counts I and II argue that HB56's sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 violate the Supremacy Clause, and are pre-empted by federal law, respectively. Count III alleges that HB56 section 13 restricts the interstate movement of aliens in a manner that is prohibited by Article One, Section Eight of the Constitution, the Commerce Clause.
Here's a flavor of the DOJ's basic pre-emption argument:
the federal government will be required to divert resources from its own, carefully considered enforcement primary priorities — aliens who pose a threat to national security and public safety — to address the work that Alabama will now create for it — verification of individuals who are caught driving without a license or jaywalking.
The DOJ is seeking a preliminary and permanent injunction of the statute scheduled to become effective September 1.
The Alabama statute is thus now subject to two challenges in federal court. [update: Clergy have also filed a lawsuit, discussed here]
Thursday, July 28, 2011
The Thomas More Law Center this week asked the Supreme Court to review the Sixth Circuit's ruling last month upholding the individual health insurance mandate in the Affordable Care Act against its constitutional challenge.
The Sixth Circuit ruled last month in Thomas More Law Center v. Obama that the individual health insurance mandate in the Affordable Care Act was within Congress's Commerce Clause authority and not otherwise prohibited by the Constitution.
Thomas More Law Center's petition for writ of certiorari raises familiar arguments, including this: Congress can only regulate "commerce"; "commerce" means action (not inaction); and therefore the individual mandate, which regulates inaction, exceeds Congress's Commerce Clause authority.
Two points in the petition are worth note:
- Thomas More Law Center takes direct aim at both Wickard v. Filburn and Gonzales v. Raich, arguing that they are "vexatious"--i.e., out of step with U.S. v. Lopez and U.S. v. Morrison (presumably the Court's real jurisprudence on the Commerce Clause). It then backs off, though, arguing that Gonzales v. Raich makes sense of the "vexatious" duo by clarifying for us that "commerce" means "activity." (The rest of the argument then follows.) It looks like Thomas More Law Center is trying to put Wickard v. Filburn and Gonzales v. Raich in play.
- Thomas More Law Center includes a footnote with a lengthy quote from the Court's recent ruling in Bond v. U.S., the OT 10 case in which the Court ruled that an individual has standing to raise a Tenth Amendment defense. The quote focuses on the connection between federalism and freedom.
The gist of the petition, however, and the core reason for granting cert. can be reduced to this one liner, from Paragraph 1 of the petition:
Review is necessary to establish a meaningful limitation on congressional power under the Commerce Clause. . . .
Saturday, July 16, 2011
Plaintiffs in this and other cases, and other opponents in the public debates, have all made novel Tenth Amendment and federalism arguments as part of their challenges to the individual mandate. These have not received the same attention afforded to the Commerce Clause argument, but they are every bit as important, and they are every bit as novel—without basis in text, history, or jurisprudence. The cases challenging the individual mandate have thus invited the courts to give new shape to the Tenth Amendment and federalism principles—a shape that reflects the opponents' radical and ahistorical view that the Constitution enshrines libertarianism and creates a government of limited and constrained powers. The Sixth Circuit, by largely not addressing these claims, properly declined this invitation.
Wednesday, July 6, 2011
The acquittal of Casey Anthony on all felony charges connected to the death of her daughter, Caylee Anthony, has sparked a movement for a federal law that would make the mother's failure to report her daughter missing a felony.
The petition letter proposes:
that a new law be put into effect making it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the death of their child, accidental or otherwise, within 1 hour of said death being discovered. This way there will be no more cases like Casey Anthony's in the courts, and no more innocent children will have to go without justice.
Also, make it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the disappearance of a child within 24 hours, so proper steps can be taken to find that child before it's too late.
The case of Caylee Anthony was tragic, and there is no reason for another case like this one to hit the courts. Let's do what is necessary to prevent another case like this from happening.
The petition does not state a constitutional ground for Congress to exercise the power of enacting a general law. As Constitutional Law students know, Congress must have a specific and enumerated power in order to enact legislation. Generally, criminal laws are within the province of the states. However, Congress does enact many criminal laws under the commerce clause power of the Constitution, Article I, section 8, clause 3.
In United States v. Lopez, 514 US 549 (1995), a case involving the criminalization of gun possession in "school zones," the Court declared that the commerce clause power was limited to:
- the channels of interstate commerce,
- the instrumentalities of interstate commerce, or persons or things in interstate commerce, or
- activities that substantially affect or substantially relate to interstate commerce
The Court found that the federal statute in Lopez was certainly not within the first two possibilities (there was no jurisdictional requirement, for example, that the gun had traveled in interstate commerce) and moreover did not include an activity that "substantially affected" interstate commerce.
If possession of an article of commerce such as a gun was insufficient to support a commerce clause power in Lopez, it is difficult to see how a parent's failure to report a missing child to local police authories would "substantially affect" commerce.
A "jurisdictional hook," such as crossing state lines, would not have encompassed the actions of Florida resident Casey Anthony (pictured above via).
Wednesday, June 29, 2011
A three-judge panel of the Sixth Circuit today upheld the individual health insurance mandate in the federal Patient Protection and Affordable Care Act (ACA) under Congress's Commerce Clause authority. The ruling affirmed District Judge Steeh's earlier ruling in the case, Thomas More Law Center v. Obama.
The panel split on a couple issues. Here are the highlights of the opinion:
Commerce Clause Authority: Two of the three judges, Judge Martin and Judge Sutton, agreed that Congress has authority under the Commerce Clause to enact the individual mandate. But they agreed for slightly different reasons--see below. Judge Graham disagreed.
Regulating Action versus Regulating Inaction: Given the play this distinction has received in litigation and in public debates, this is the most important--and most interesting--part of the case. All three judges agreed that there's no constitutional line between activity and inactivity--and that there's therefore no per se restriction on Congress regulating inactivity. While they agreed on this point for slightly different reasons, they all seemed to agree (at least) that the text of the Constitution does not support the distiction. Beyond that, they had just slightly different reasons for rejecting the distinction, mostly focusing on how it doesn't square against the Court's Commerce Clause precedents and how it's unworkable in practice.
Outside the Market: Judges Martin and Sutton agreed, again for different reasons, that those who decline to purchase health insurance are nevertheless part of the market--the market for national health care--because they self-insure for the cost of health care services. Judge Graham disagreed. He wrote that those who self-insure (and again, the "inactivity" didn't give him a constitutional bother), are not a part of the relevant market--the market for health insurance.
Taxing Authority: Judges Sutton and Graham agreed that the tax penalty goes beyond congressional authority under the General Welfare Clause. Judge Sutton wrote at length detailing why. Judge Martin (like Judge Steeh below) didn't reach this issue, because he concluded that the Commerce Clause adequately supported the individual mandate.
In all, the three opinions well reflect the array of arguments in this case (and in other cases, and in the public debate). Between the three, they reflect a spectrum--with Judge Martin ruling most clearly that Congress had authority under the Commerce Clause, Judge Martin ruling the same way but with a shade greater caution, and Judge Sutton ruling against.
Thursday, April 14, 2011
In acknowledgement of both baseball season and poem in your pocket day, Justice Harry Blackmun provides a pair of suitable footnotes.
Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:
I knew a cove who'd never heard of Washington and Lee,
Of Caesar and Napoleon from the ancient jamboree,
But, bli'me, there are queerer things than anything like that,
For here's a cove who never heard of ‘Casey at the Bat’!
‘Ten million never heard of Keats, or Shelley, Burns or Poe;
But they know ‘the air was shattered by the force of Casey's blow’;
They never heard of Shakespeare, nor of Dickens, like as not,
But they know the somber drama from old Mudville's haunted lot.
‘He never heard of Casey! Am I dreaming? Is it true?
Is fame but windblown ashes when the summer day is through?
Does greatness fade so quickly and is grandeur doomed to die
That bloomed in early morning, ere the dusk rides down the sky
‘He Never Heard of Casey’ Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.
‘These are the saddest of possible words,
‘Tinker to Evers to Chance.’
Trio of bear cubs, and fleeter than birds,
‘Tinker to Evers to Chance.’
Ruthlessly pricking our gonfalon bubble,
Making a Giant hit into a double-
Words that are weighty with nothing but trouble:
‘Tinker to Evers to Chance.“
Franklin Pierce Adams, Baseball's Sad Lexicon.
The case is Flood v. Kuhn, 407 U.S. 258, 296 (1972), the baseball antitrust case, in which Justice Blackmun quotes the poems in his footnotes to capture America’s fondness for baseball. Later in the opinion which included more about the history of baseball, Blackmun wrote: ""In view of all this," it was appropriate to say that "professional baseball is a business and engaged in interstate commerce," although it is an "exception and an anomaly" and thus exempt from anti-trust laws, even as "football, boxing, basketball, and, presumably, hockey and golf are not so exempt."
There are footnotes for "hockey" and "golf" but they contain case citations, not poems.
with J. Zak Ritchie
[image: statute of Casey at the Bat, via]
Saturday, April 9, 2011
The passage of the Affordable Care Act in early 2010 has prompted a variety of constitutional challenges which we’ve covered extensively, including here and here. For ConLawProfs who like to frame their examinations around curent controversies, the Affordable Health Care Act provides an excellent opportunity.
A good background and refresher on federal power and federalism concerns is WVU College of Law Professor Gerald G. Ashdown 's article Federalism’s Floor, 80 Miss. L.J. 69, 74 (2010). Ashdown examines the Rehnquist Court’s movement toward limited federal power, and then attempts to explain why the federalism movement “seems to have bottomed out, or reached a floor on limiting the reach of federal power." In doing so, Ashdown frames his analysis with a discussion of several factors, including the “natural limits on the Court’s recent Commerce Clause, sovereign immunity, and Section 5 (of the Fourteenth Amendment) decisions; congressional use of the Spending Clause, and politics both outside and inside the Court.” Id.
First, Ashdown’s look at recent Commerce Clause cases brings his thesis into clearer focus. Most students of constitutional law are quite familiar with the decisions in United States v. Lopez and United States v. Morrison, cases which struck down federal enactments under a narrower application of the Commerce Clause. Students should be just as familiar with Gonzales v. Raich, a decision in which the court upheld the authority of Congress to regulate the intrastate production and use of marijuana under the aggregation theory of the Commerce Clause, best exemplified by the decision in Wickard v. Filburn. Ashdown writes that “Raich is a hard case, and although it did not necessarily produce bad law, it did produce weird, if not predictable, results—at least for federalism after Lopez and Morrison.” Id. at 77. Ultimately, Ashdown concludes that “[e]ven when the affecting commerce theory of Lopez and Morrison is relied upon, there seem to be practical and ideological barriers, illustrated by Raich, to limiting federal commerce authority. In other words, there are pragmatic barriers to further Court action restricting congressional power under the Commerce Clause.” Id. at 79-80.
Professor Ashdown turns next to the complex subject of sovereign immunity and the effect of Section 5 abrogation, writing that
[t]he combination of Seminole Tribe of Florida v. Florida, which held that Congress could abrogate state sovereign immunity only under Section 5 of the Fourteenth Amendment and not under the Commerce Clause, and City of Boerne v. Flores, interpreting Section 5 narrowly to disallow Congress from protecting “rights” more broadly than those identified by the Supreme Court, seemed to place substantial limits on the reach of federal authority over the states. Taken together, these cases mean that Congress only has Section 5 power to regulate state government and that the federal enactment must be a “congruent and proportional” remedy to a constitutional violation identified by the Court.
Id. at 80. Despite these barriers to expanded federal power, a more recent decision in Nevada Dep’t of Human Resources v. Hibbs, upheld the Family Medical Leave Act (FMLA) because the Act was a proportional and congruent remedy to the historical discrimination by states on the basis of gender. Next, Professor Ashdown surveys Spending Clause jurisprudence, beginning with the key case of South Dakota v. Dole, where the Court upheld the federal requirement that states accepting highway funds must enact twenty-one-year-old drinking age laws or suffer loss of funding. While it upheld the restriction, the Court took note of some limits on conditional spending. “The Court’s own spending jurisprudence thus provides another barrier to judicial tinkering with the federalism balance,” according to Ashdown. Id. at 93. Finally, Ashdown observes the effects of national political processes on some federalism issues that reach the courts. The federal partial-birth abortion ban illustrates Ashdown’s point. “The pro-life, conservative side that normally would align with restraints on federal power naturally supported the statute, and the pro-choice group who opposed the Act evidently was unwilling to challenge the use of federal authority, something liberals generally favor, . . . as social progressives would be extremely reluctant to give the federal courts . . . the opportunity to place further limits on federal commerce power.” Id. at 97-98. These “political checks,” Ashdown argues, operate in addition to judicial dynamics “as a practical floor on potential judicial inroads on federal power.” Id. at 98-99.
In the end, Ashdown observes that “the Supreme Court’s own jurisprudence has established a floor on shifting power to state governments,” and “[f]ederalism tends to get ignored in favor of first-order issues like abortion, gun control, and civil rights.” Id. at 103. Ashdown aptly foreshadows the litigation surrounding the Affordable Health Care Act - - - and possible "floor and ceiling" issues on forthcoming constitutional law exams.
with J. Zak Ritchie
[image: Inside the US Supreme Court building via]
Sunday, April 3, 2011
The government on Friday filed its opening brief in Florida v. HHS, the appeal before the Eleventh Circuit of Judge Vinson's (N.D. Fla.) ruling that federal health reform is unconstitutional. (Thanks to the ACA Litigation Blog for the link to the brief. Recall that Judge Vinson ruled that the individual health insurance mandate was unconstitutional, that it was not severable from the rest of the Affordable Health Act, and that the entire Act was therefore unconstitutional. Our last post on the case is here.)
The government's core arguments are by now familiar; there are no major surprises. There's just one new piece to the appeal, based on Judge Vinson's sweeping ruling: The government argues that his ruling that the entire Act is unconstitutional (because the individual mandate is not severable) goes too far, and that he fails to address several plaintiffs' lack of standing. (These arguments begin on page 55 of the brief.)
Here are the point-headings from the Table of Contents:
I. The Minimum Coverage Provision Is a Valid Exercise of Congress's Commerce Power.
A. The minimum coverage provision regulates the way people pay for health care services, a class of economic activity that substantially affects interstate commerce.
1. The minimum coverage provision regulates the practice of obtaining health care services without insurance, a practice that shifts substantial costs to other participants in the health care market.
2. The minimum coverage provision is essential to the Act's guaranteed-issue and community-rating insurance reforms.
B. The minimum coverage provision is a necessary and proper means of regulating interstate commerce.
1. The provision is plainly adapted to the unique conditions of the health care market.
2. Congress can regulate participants in the health care market even if they are not currently "active" in the insurance market.
II. The Minimum Coverage Provision Is Also Independently Authorized by Congress's Taxing Power.
III. The District Court Impermissibly Departed from Controlling Doctrine in Declaring the Affordable Care Act Invalid in Its Entirety and in Awarding Relief to Parties Without Standing.
Friday, April 1, 2011
April is "National Poetry Month," and here at Constitutional Law Professors Blog we are celebrating not with a poem a day, but with a footnote a day.
Although there certainly are some poems about and in constitutional law, arguably (or so I have long thought) footnotes are the next closest creature to "poetry" in Constitutional Law.
It seems fitting to start with what has been called the most famous footnote in law:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
At issue in United States v. Carolene Products Company, 304 U.S. 144 (1938) was a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream). The challenges to the law were based on a lack of commerce clause power and a due process violation. The case did not involve equal protection - - - which perhaps explains the relegation of the now-famous language to a footnote.
For purists, here's the famous footnote four, complete with citations, from Carolene Products.
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359, 283 U. S. 369-370; Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U. S. 536; Nixon v. Condon, 286 U. S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 713-714, 283 U. S. 718-720, 283 U. S. 722; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U. S. 369; Fiske v. Kansas, 274 U. S. 380; Whitney v. California, 274 U. S. 357, 274 U. S. 373-378; Herndon v. Lowry, 301 U. S. 242, and see Holmes, J., in Gitlow v. New York, 268 U. S. 652, 268 U. S. 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510, or national, Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262 U. S. 404; Farrington v. Tokushige, 273 U. S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare 17 U. S. 428; South Carolina v. Barnwell Bros., 303 U. S. 177, 303 U. S. 184, n 2, and cases cited.
United States v. Carolene Prod. Co., 304 U.S. 144, 152-53 n.4 (1938).
Sunday, March 20, 2011
The regulation of food and its consumption have always posed constitutional issues - - - recall the "wheat case" of Wickard v. Filburn (1942) - - - and for the last several years, public health advocates, now prominently joined by First Lady Michelle Obama, have highlighted the need for vigorous public policy solutions to the increasing costs of obesity in America. One of the most well-known policies aimed at adjusting Americans’ eating habits is the mandatory disclosure of nutritional information by restaurants. Leading the way on such mandates include several of America’s largest cities, including New York, where Mayor Bloomberg has successfully advocated for the posting of calorie information in many of the city’s eateries; this policy ultimately survived a constitutional challenge.
In West Virginia, the efforts to mandate caloric information have been less successful. During the 2009 Regular Session of the WV State Legislature, a bill was introduced and recommended for passage in the House of Delegates that would have required the posting of calorie counts of menu items in most restaurants throughout the state. The bill died before making it to the House floor, perhaps because of the efforts of former state senator and statewide restaurateur, Oshel Cragio. Craigo, who owns a popular fast-food chain of home-style breakfast restaurants named “Tudor’s Biscuit World,” buttered-up House committee members with free biscuit-style breakfast entrees on the morning in which the nutritional posting bill was being debated. Perhaps unsurprisingly, members chose the biscuits over the bill. However, a provision in the federal health care reform bill will likely require Cragio’s restaurants to post calorie counts.
Mandatory calorie disclosures typically provoke the anti-government sentiments often shared by members of the modern Tea Party, a movement we’ve covered here. The rhetoric often invokes an originalist imagining of Revolutionary-era politics as championing individual liberty against government policies.
Professor Alison Peck at the WVU College of Law challenges the symbolism used by modern day Tea Party by arguing that early-American political groups associated with the Founding Fathers actually had more in common with contemporary advocates of food-consumption regulation than with the small-government Tea Party activists of today.
Peck has posted an abstract of her article, Revisiting the Original “Tea Party”: The Historical Roots of Regulating Food Consumption in America, on ssrn here, but we've had a chance to read the entire draft manuscript. It's a stellar argument supporting her central assertion that “opponents of modern food-consumer regulation misapprehend Revolutionary history. . . .” Manuscript at 5.
Specifically, the "non-importation and non-consumption agreements suggest that the colonists considered private consumption decisions to be fair subjects of coordinated public action where those decisions had negative public consequences.” Id. at 7. Indeed, Peck argues that a close examination of those non-importation agreements and their context suggests that they arose, in principle, from many of the same forces driving food-consumer regulation today. These forces include shared public costs attributable to private consumption decisions; popular rhetoric linking private choices and public costs; sponsorship of restrictions by community leaders and elites; and collectively-enforced consequences for failure to conform. Id.
While the author admits the obvious difference between the modern regulations and the Revolution-era non-importation and non-consumption agreements—that the latter agreements had no force of law—Peck claims that the “disenfranchised colonists came as close as they could to replicating that effect: The increasingly coercive mechanisms of outing and ostracizing free riders, seizing and holding offending goods, and even using violence against offenders gradually served to raise the cost of non-compliance.” Id at 50. Indeed, Professor Peck believes that it was “likely that the colonists would have given their agreements the force of law if they had had the constitutional power to do so.” Id. Supporting this assertion, the author briefly discusses the imposition of the federal excise tax on whiskey in 1791—a tax that led to a brief but serious rebellion in the young nation.
Peck concludes by chiding the modern Tea Party for their claims that food-consumer regulation are “unprecedented or un-American,” as such regulatory forces are “far from novel.” Id. at 54. She writes:
The idea that a society may regulate individual consumption choices in the name of the collective good was expressed as early as the pre-Revolutionary non-consumption and non-importation agreements. Although those agreements were quasi-legal instruments organized and enforced by the colonists outside of formal legislative bodies, their purpose was equivalent: to force accountability for private consumption decisions that had shared social costs.
The powers of governments (federal, state, and local) and individual liberties has been an ongoing balancing act in US legal history. Peck's article will be an important contribution to our assessment of our understanding of that history.
with J. Zak Ritchie
[image: Mary Cassat, American artist, "Afternoon Tea Party," 1891, via]
March 20, 2011 in Commerce Clause, Congressional Authority, Current Affairs, Due Process (Substantive), Food and Drink, Fundamental Rights, History, Scholarship, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack (0)
Thursday, March 3, 2011
Judge Vinson (N.D. Fla.) on Thursday stayed his ruling that the Patient Protection and Affordable Health Care Act was unconstitutional. (Recall that Judge Vinson ruled in January that the individual health insurance mandate exceeded congressional authority and was unseverable from the rest of the Act; therefore, he ruled, the whole thing was unconstitutional. But he stopped short of issuing an injunction, instead assuming that the government would treat his declaratory ruling as an injunction.)
Yesterday's ruling in Florida v. Department of Health and Human Services was highly critical of the government for claiming it misunderstood the earlier "clear" ruling and for filing a "motion to clarify," not a motion to stay. Judge Vinson wrote:
So to "clarify" my order and judgment: The individual mandate was declared unconstitutional. Because that "essential" provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the "practical" and "functional equivalent of an injunction" with respect to the parties to the litigation. This expectation was based on the "long-standing presumption" that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that they were unable) to comply, it was expected that they would immediately seek a stay of the ruling, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to "clarify."
Op. at 14. Judge Vinson treated the government's motion as a motion to stay and granted it, on the condition that the government appeal within 7 calendar days and seeking an expedited appeal.
Judge Vinson recognized that his original position would have put some plaintiff-states in an unusual position. For example, the State of Michigan, as a plaintiff in the case, would have been subject to his original ruling, and the federal government would have been prevented from implementing the Act there. But another federal district court in Michigan ruled the Act constitutional. In other plaintiff-states, state attorneys general disagreed with state governors. Yet other plaintiff-states declined to stop implementation pending appeal.
Thursday, February 24, 2011
Judge Gladys Kessler (D.D.C.) on Tuesday upheld the individual health insurance mandate in the federal health reform package, the Affordable Care Act. Judge Kessler granted the government's motion to dismiss the case, Mead v. Holder, handing the government its third district court victory. (We posted on the earlier two cases upholding the individual insurance mandate here and here. We posted on the two earlier cases ruling the mandate unconstitutional here and here. District court rulings are on appeal, but no federal appellate court has yet ruled on the constitutionality of the individual health insurance mandate.)
Plaintiffs in the case argued that they were outside the scope of congressional Commerce Clause authority, because they planned never to use the health care system. And if they did, they'd pay out of pocket. Moreover, they claimed, the individual mandate violates their religious freedom under the Religious Freedom Restoration Act.
Judge Kessler surveyed the Commerce Clause landscape in some detail and synthesized this three-part rule from Wickard v. Filburn, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich:
- First, the Court must consider whether the decision not to purchase health insurance is an economic one.
- Second, if the decision is economic, the Court must determine whether Congress had a rational basis for concluding that such decisions, when taken in the aggregate, substantially affect the national health care market.
- Third, the activity may be found to be within the reach of Congress's Commerce Clause power if it is an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the interstate activity were regulated.
Op. at 35-36. (Internal quotes and citations omitted.)
The first part--whether the (in)activity is economic--has perhaps received the most attention in the public debates and court cases. But Judge Kessler had little trouble concluding that the activity was economic, ruling simply that "[b]oth the decision to purchase health insurance and its flip side--the decision not to purchase health insurance--therefore relate to the consumption of a commodity: a health insurance policy." Op. at 38. She dismissed the plaintiffs' related argument that the non-purchase is non-activity, not subject to Commerce Clause regulation: "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not to do something. They are two sides of the same coin. To pretend otherwise is to ignore reality." Op. at 45.
Judge Kessler went on to rule that Congress rationally concluded that the decision not to purchase insurance substantially affected the health care market, and that the individual health insurance mandate was an essential part of the regulatory scheme--that it was a critical tool in preventing free-riding and cost-distribution by those who would opt out.
Judge Kessler ruled against the government on the General Welfare Clause: the penalty for not insuring was not a "tax," she ruled, because Congress never intended it to act as a tax.
She rejected the plaintiff's RFRA claim. She ruled that their argument that the mandate undermines their religion (because they believe that God will take care of their health, and the mandate forces them into a back-up plan) represented only a de minimis impact on their religious beliefs. And moreover, she ruled, the mandate is the least restrictive way for the government to achieve its compelling interest.
Wednesday, February 9, 2011
Virginia AG Kenneth Cuccinelli yesterday filed a Petition for a Writ of Certiorari Before Judgment in the Supreme Court, seeking review of Judge Hudon's (E.D. Va.) ruling in Virginia v. Sebelius in December, holding the individual health insurance mandate in the Patient Protection and Affordable Care Act unconstitutional.
AG Cuccinelli filed pursuant to Supreme Court Rule 11, which allows a petition for writ of cert. in extraordinary cases:
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.
Here are AG Cuccinelli's questions presented:
1. Whether the district court erred in holding that the Commonwealth has standing to challenge the minimum coverage provision (as stated by the Secretary).
2. Whether the district court erred in holding that the minimum coverage provision is not a valid exercise of Congress's Article I powers (as stated by the Secretary).
3. Whether the district court erred when it held that the unconstitutional mandate and penalty of the Patient Protection and Affordable Care Act of 2010 . . . is severable from all the remaining provisions of the law.
4. Whether the district court erred when it denied injunctive relief.
The Justice Department has indicated that it opposes bypassing the appeals courts. (Twenty-eight governors sent a letter to President Obama today asking him to support an expedited appeal to the Supreme Court.)
Tuesday, February 1, 2011
The Senate Judiciary Committee will take up the constitutionality of the Affordable Care Act this morning, 10:00 a.m. (EST). Here's the witness list:
- Oregon AG John Kroger
- Randy Barnett
- Jones Day Partner Michael Carvin
- Walter Dellinger
- Charles Fried
The hearing comes on the heels of Judge Vinson's (N.D. Fla.) ruling on Monday that the individual mandate exceeds Congress's Commerce Clause and Necessary and Proper Clause authority, that the mandate is not severable from the rest of the Act, and that therefore the entire Act is unconstitutional.
Judge Vinson's ruling is the second federal district court ruling that the individual insurance mandate exceeds congressional authority. (We posted on the first one here.) There are also two federal district court rulings that the mandate falls within congressional authority; we posted here and here.
The hearing will have no legal or constitutional significance. Anything that can be said about the constitutionality of the Act has already been said (and argued in the courts), and the Senate already made its own judgment on the constitutionality of the Act when it passed it in the first place.
Monday, January 31, 2011
Judge Vinson (N.D. Fla.) ruled today in State of Florida v. U.S. Dep't of Health and Human Services that the Patient Protection and Affordable Health Care Act was unconstitutional--in its entirety. The ruling declared that the individual health insurance mandate exceeded congressional authority under the Commerce Clause and the Necessary and Proper Clause. Judge Vinson wrote that because the mandate cannot be severed from the rest of the Act, the whole thing was unconstitutional. We posted previously on the case--which was brought by governors or AGs in 26 states, two private citizens, and a business association--here and here.
In striking down the mandate, Judge Vinson ruled that the Commerce Clause only authorizes Congress to regulate activity, that failure to purchase health insurance is not an activity, and that there's nothing inherent or unique in the health care market or in the decision not to purchase health insurance that ties the failure to purchase health insurance to interstate commerce.
Judge Vinson emphasized throughout his analysis that the question--whether Congress can regulate a non-"activity"--was novel. This alone, he ruled, did not make it unconstitutional. But it seemed to put a heavy thumb on the scale in his analysis. (He didn't seem troubled that other congressional acts upheld under the Commerce Clause were also "novel" when they first came to the courts: wheat production for home use in Wickard v. Filburn and home production and use of marijuana in Gonzales v. Raich, just to name two. But he did write this about Wickard: "[B]efore Wickard was decided, it is likely that most people (including legal scholars and judges) would have thought it equally "ridiculous" to believe that Congress would one day seek (and be permitted) to regulate (as interstate commerce) the amount of wheat that a farmer grew on a small private farm for his personal consumption." Op. at 47, n. 20.)
He also emphasized the unbridled power that would result if Congress could require individuals to purchase health insurance: if Congress could do this, he wrote, Congress could do anything--require us to buy certain cars, to buy certain bread, and even to buy broccoli. These kinds of regulations exceed congressional authority, he wrote, because they run counter to the Framers' intent and to precedent and practice.
Judge Vinson was perhaps most emphatic in writing that the non-act of not purchasing health insurance had no effect on interstate commerce:
If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, [even the aggregate] impact must be zero, and of no effect on interstate commerce.
Op. at 50. According to Judge Vinson, it would require "pil[ing] inference upon inference" to get from not insuring to the interstate economy, thus running afoul of the principle in U.S. v. Lopez.
Judge Vinson wrote separately about the Necessary and Proper Clause. He wrote that this Clause also failed to support the individual mandate, largely because the Commerce Clause didn't support the mandate:
The Necessary and Proper Clause cannot be utilized to "pass laws for the accomplishment of objects" that are not within Congress' enumerated powers. As the previous analysis of the defendants' Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established "outer limits" of the Commerce Clause and effectively remove all limits on federal power.
Op. at 62.
Judge Vinson ruled that the Medicaid expansion portion of the Act did not violate the Spending Clause. He ruled that it clearly met the standards under South Dakota v. Dole and that it didn't unconstitutionally "coerce" the states. (The states argued that the expansion coerced them into continuing their participation in Medicaid, even as the cost of participating became unsustainable.)
But he nevertheless ruled the entire Act unconstitutional, because, he wrote, the individual mandate wasn't severable from the rest of the Act.
Judge Vinson's ruling is now the second federal district court ruling that the individual mandate is unconstitutional. (Judge Henry Hudson (E.D. Va.) issued the first ruling last month.) There are also two federal court rulings upholding the constitutionality of the mandate.
Tuesday, January 18, 2011
Recall: Judge Hudson ruled last month that the individual health insurance mandate in the federal health care reform legislation exceeded Congress's Commerce Clause authority because it required a positive act (and didn't merely prohibit action)--a popular position among those who argue against the mandate's constitutionality.
But Yung points out that Judge Hudson ruled just over a year earlier that a different federal requirement to act was well within Commerce Clause authority. That case, U.S. v. Dean, involved the federal Sex Offender Registration and Notification Act (SORNA) and its requirement that sex offenders registered with the comprehensive national registration system that SORNA created--whether or not they cross state lines. Yung:
In the case of health care reform, opponents have argued that Congress' power extends only to "activities" and that the so-called "mandate" actually punishes people for "inactivity"--failing to purchase health insurance. In the case of sex-offender registration, a similar "inactivity" is being regulated: failing to register with the government. Like Hudson, every federal appellate court that has reviewed the federal sex-offender-registration law has found it to be within Congress' powers.
Despite the similarities between the statutes, the more recent opinion by Hudson is radically different from when he reviewed the federal sex-offender-registration statute. In his opinion regarding the health care law, Judge Hudson wrote that in order to "survive a constitutional challenge, the subject matter must be economic in nature . . . and it must involve activity."
That clear statement of law simply cannot be reconciled with his prior opinion because a failure to register as a sex offender is neither economic nor activity.
Judge Hudson wrote this in Dean:
When evaluating the impact of an activity on interstate commerce, the [Fourth Circuit] commented that "the question is not simply whether one particular offense has a measurable impact upon interstate commerce, but whether the relevant class of acts has such an impact." With this principle in mind, the Fourth Circuit concluded that "even though the comprehensive federal registration system created by SORNA may implicate a sex offender who does not cross state lines, the potential for recidivism and flight across state lines of all sex offenders is sufficiently real and substantial to be taken as a serious and extensive part of the larger interstate problem, justifying the comprehensive regulation. The court found further support for its conclusion in the fact that Congress's regulatory scheme would be severely hampered unless all sex offenders were required to register.
As a result of the Fourth Circuit's analysis . . . this Court finds that the registration requirements detailed in [SORNA] are valid under the Commerce Clause. . . .
Dean, 670 F. Supp. 457, 460 (citations omitted, emphasis in original). (Judge Hudson's refers to the Fourth Circuit case of U.S. v. Gould, which upheld the federal criminal penalty for sex offenders who travel across state lines and fail to register, but which did not directly opine on the federal regulation to register in the first place. Again: this regulation applies whether or not a sex offender crosses state lines.)
Judge Hudson's analysis above seems to apply with even greater force to the individual mandate.
But more: Judge Hudson went on to write that the Necessary and Proper Clause provided additional support for this conclusion. And notably he cited no Fourth Circuit case for this part of his opinion, suggesting that he wasn't merely and begrudgingly following the Fourth Circuit's reasoning in Gould but (if there were any doubt) also using his own judgment, thus underscoring the inconsistency with his more recent health reform ruling.
Tuesday, January 11, 2011
Justice Thomas dissented yesterday (joined by Justice Scalia) in a denial of review of a case that the Court might have used to clarify the scope of the Commerce Clause. Instead, Justice Thomas argued, the Court in denying review "tacitly accepts the nullification of our recent Commerce Clause jurisprudence." Op. at 1.
While Justice Thomas overstates the significance of the denial of review, his dissent may give us some clues about the Court's most recent thinking on the Commerce Clause.
The case, Alderman v. U.S., involves 18 U.S.C. Sec. 931(a), the federal statute that outlaws body armor for anyone who has been convicted of a felony crime of violence and where the body armor was sold or offered for sale in interstate commerce. Alderman was charged with violating the statute and entered a conditional plea. He then appealed, arguing that the statute exceeded Congress's Commerce Clause authority.
A divided three-judge panel of the Ninth Circuit rejected the argument and upheld the statute. The panel looked to the Court's 1977 ruling in Scarborough v. United States, a case involving a federal prohibition on possession of firearms by felons. While Scarborough involved a different federal statute, it contained a similar "jurisdictional element"--a requirement that the regulated thing (there a firearm, here body armor) traveled in interstate commerce. Thus Scarborough "considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce." Op. at 7 (quoting United States v. Cortes (9th Cir. 2002)). Scarborough did not directly address the constitutional question, but the Ninth Circuit ruled that it "implicitly assumed the constitutionality of the 'in commerce' requirement." Op. at 7. Thus, the Ninth Circuit ruled, Scarborough holds that a statute's jurisdictional element alone can put a statute within congressional power "[t]o regulate Commerce . . . among the several states . . . ." Art. I, Sec. 8, the Commerce Clause. Just as the jurisdictional element in Scarborough kept the federal firearm restriction within Congress's Commerce Clause authority, so too here the jurisdictional element keeps the federal body armor restriction within Congress's Commerce Clause authority.
The Ninth Circuit denied en banc review, and yesterday the Supreme Court denied review.
Justice Thomas (joined by Justice Scalia in all but a footnote referring to some of Justice Thomas's other writings on the scope of the Commerce Clause) wrote that the denial "nullified" more recent Commerce Clause jurisprudence, United States v. Lopez and United States v. Morrison. Those cases held that Congress can regulate activities that have a substantial effect on interstate commerce, as measured by four considerations: whether the activity is commercial, or has anything to do with commerce; whether the statute contains a jurisdictional element; whether the legislative history contains any findings as to the effect on interstate commerce; and whether the link between the activity and a substantial effect on interstate commerce is too attenuated.
Justice Thomas argues that the denial amounts to privileging the jurisdictional element above all else and ignoring the statute's encroachment on traditional state police powers. According to Justice Thomas, this approach knows no bounds and would allow Congress to regulate everything from stolen candy transported across state lines to french fries purchased in another state.
Justice Thomas overstates the denial's impact on Lopez and Morrison. A denial of review does not change the Supreme Court's jurisprudence, even implicitly. And there may be any number of non-merits reasons why the Court denied review.
On the other hand, the Court's denial and Justice Thomas's dissent may tell us something about the Court's thinking on the Commerce Clause. For one, the denial leaves the Ninth Circuit ruling in place, along with similar rulings in other circuits. With no circuit going the the other way (rejecting congressional authority), the Ninth Circuit is now just the latest in a growing line of rulings that a jurisdictional element alone can authorize congressional regulation under the Commerce Clause. This is significant: If the Court wanted to reverse this line and rein in the lower courts, as Justice Thomas argued, this seemed like the perfect case.
Thus the Court's denial could mean that it doesn't want to reverse this line. And that's plausible: The Ninth Circuit's approach isn't necessarily inconsistent with Lopez or Morrison; it's really a special case. Neither Lopez nor Morrison gave any indication how the Court would weigh the four considerations if there were a clear and well defined jurisdictional element limiting the statute to activities sufficiently linked to interstate commerce. Such an element--as here, as in Scarborough--may just be enough for the Court.
For another, Justice Thomas was joined only by Justice Scalia. That's not to say that others don't agree with the analysis--perhaps they do. But none felt strongly enough about it to sign on.
Still, we can't read too much, if anything, from a dissent to the Court's denial of review. Maybe the Court is inclined to take a look at this question, but this was just the wrong case at the wrong time. In any event, the denial and Justice Thomas's dissent give us no clues as to how the Court might rule on the Commerce Clause issue of the day--the individual health insurance mandate. The question there--whether the Commerce Clause authorizes Congress to require individuals to purchase insurance--is just too different from the question in Alderman.