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)
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.