November 10, 2009
Is an Individual Health Insurance Mandate Constitutional?
Dean Erwin Chemerinsky (Irvine) and David B. Rivkin (Baker & Hostetler) are debating the constitutionality of an individual health insurance mandate as part of the federal healthcare overhaul in the Federalist Society Online Debate Series. The issue--whether Congress has authority to require individuals to purchase health insurance--has gotten some attention since Rivkin and Lee Casey penned a Washington Post op-ed arguing that Congress lacked authority under the Commerce Clause. (I critiqued their argument here.)
Here's a flavor:
Chemerinsky: There is no constitutional problem with Congress requiring that individuals purchase health care or pay a penalty. . . .
Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce. Purchasing health insurance is an economic transaction. Taken cumulatively those who do this, or who don't do it, have a substantial effect on interstate commerce.
Rivkin: Wickard v. Filburn and Gonzales v. Raich do not support [Chemerinsky's] position. In both of these cases, Congress sought to regulate individuals engaged in traditional agricultural/economic activities, growing wheat and marijuana. The fact that they did so for personal consumption did not detract from the underlying economic nature of these activities. . . .
Professor Chemerinsky also overlooks the existence of two major cases--United States v. Lopez and United States v. Morrison--in which the Supreme Court, in 5 to 4 decisions, has specifically rejected the notion that Congress can regulate non-commercial behavior merely because, arguably, such behavior can have an impact on Commerce. The Court's overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious. This reasoning is unassailable.
Indeed, the vertical separation of powers, under which the federal government possesses limited and enumerated powers, while the States wield general police powers, is the key part of our constitutional architecture. . . .
Professor Chemerinsky's vision of a Commerce Clause on steroids would fundamentally warp our constitutional architecture. Because every single decision by individual Americans, be it buying health insurance, cars, health club memberships or any other good or service, has some impact on the economy, it could be subject to regulation by Congress.
There's much more; check it out.
October 19, 2009
The Department of Justice has announced a new policy regarding federal prosecutions of the use of marijuana permitted under state law for medical reasons.
In a memo released today to federal prosecutors, David W. Ogden, Deputy Attorney General, states:
The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.
This memo solidifies Attorney General Holder's statements we discussed last February that prosecutions of the use of medical marijuana would not be a priority in the new Administration.
There is also a continuing discussion - - - although apparently not in the current DOJ - - - regarding the decriminalization of marijuana, including substantive due process arguments.
October 10, 2009
Matthew Shepard Act Passes House of Representatives
The Act, named for Matthew Shepard (pictured below),
would authorize federal assistance to states and localities in prosecuting hate crimes and would itself criminalize acts of violence "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person" under these circumstances:
`(i) the conduct occurs during the course of, or as the result of, the travel of the defendant or the victim--
`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct;
`(iii) in connection with the conduct, the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
`(iv) the conduct --
`(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.
The Congressional power at issue is obviously the Commerce Clause with the following supporting findings:
(6) Such violence substantially affects interstate commerce in many ways, including the following:
(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.
(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.
(C) Perpetrators cross State lines to commit such violence.
(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.
(E) Such violence is committed using articles that have traveled in interstate commerce.
Yet the Congressional findings also include references to the 13th, 14th, and 15th Amendments in relation to "race, color, or ancestry."
A defendant convicted under this federal act would most likely attack the constitutionality of the statute as lacking Congressional power as in the Violence Against Women Act in United States v. Morrison, 529 US 598 (2000) and the Gun Free Schools Act in United States v. Lopez, 514 US 549 (1995).
Meanwhile, the Matthew Shepard Act might provide an excellent in-class exercise reviewing Congressional power under Commerce Clause and Section 5 [of the the Fourteenth Amendment].
September 25, 2009
Is an Individual Health Insurance Mandate Constitutional?
David Rivkin and Lee Casey this week argued in a Wall Street Journal opinion piece that the mandatory insurance provision in Senator Baucus's health reform bill is unconstitutional.
The argument goes like this:
1. Congress lacks authority under the Commerce Clause to require individuals to purchase insurance, because a "health-care mandate would not regulate any 'activity.'" The authors reference United States v. Lopez and Gonzales v. Raich.
2. Because Congress can't do it under the Commerce Clause, Baucus (and other supporters of an individual mandate) have called it a tax. (Baucus's bill refers to the penalty for failure to insure an "excise tax," to be administered and collected by the IRS.)
3. But this "excise tax" is plainly a penalty, pushing the bounds of the Supreme Court's Taxing Clause jurisprudence. The authors: "The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care."
The authors are wrong on two counts. First, an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority under Raich, Lopez, and United States v. Morrison. These cases allow Congress to regulate activities that have a "substantial effect" on interstate commerce, and they look to the commercial nature of the activity and to the connection between the activity and interstate commerce (among other considerations). An individual mandate is almost surely commercial in nature--in requiring folks to buy health insurance, it requires a commercial exchange. Rivkin and Casey argue that the mandate is not commercial in nature, because it's triggered simply by "being an American." This may be true, but it misses the point of the regulation: It requires Americans to engage in a commercial exchange. This is the definition of commerce.
Moreover, the individual mandate is closely related to interstate commerce. The whole argument for an individual mandate is to get health care consumers to internalize their costs, and not spread them to the larger interstate economy. A health insurance mandate is almost certainly within Congress's Commerce Clause powers, whether Congress calls it an "excise tax" or something else.
Second, Rivkin and Casey misunderstand the Taxing Power. Congress can adopt an excise tax to an end that is within its other constitutional powers, as here. But even if Congress is acting outside its other articulated powers, the Court has interpreted the Taxing Power quite broadly, all but eliminating any distinction between a "penalty" and revenue-producing "tax." See United States v. Kahriger (upholding a federal tax on gambling under Congress's Taxing Power) (overturned on other grounds).
The Supreme Court may be on a path to limiting congressional authority under the Commerce Clause, the Taxing Clause, or any clause. But even so, the individual mandate all too squarely falls within the recent and settled jurisprudence.
September 13, 2009
States Seek to Limit Federal Health Care Overhaul
State lawmakers in several states have sought to introduce measures to curtail federal health care reform, according to a report yesterday by the AP. The effort has so far been most successful in Arizona, where a proposed state constitutional amendment will appear on the ballot in 2010. The bill reads in relevant part:
A. To preserve the freedom of Arizonans to provide for their health care:
1. A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.
2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.
B. Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.
This measure, and others like it, would certainly run up against federal preemption under any comprehensive federal reform bill.
On the flip side, protesters again suggested at Saturday's protest on the National Mall that federal health care reform would increase the size and scope of the federal government beyond what the founders intended. But any federal reform measure currently in play would fit comfortably within Congress's authority under the Commerce Clause and the Court's "substantial effects" test--i.e., that Congress can regulate under the Commerce Clause anything that has a "substantial effect" upon interstate commerce.
Given the reality of federal supremacy, the expansive federal authority under the Commerce Clause, and a sprawling health care system that pervades the national economy (isn't that exactly the problem?), the state efforts to limit federal health care reform and the arguments that federal health care reform exceed the federal government's powers have no real traction in our federal constitutional system. But they seem to have garnered enough of a following to at least signal that some number think, on principle or merely because of politics, that the federal government has no business in health care reform.
August 28, 2009
The Constitutionality of the current Health Care proposal
On Saturday, the Washington Post ran an op-ed by attorneys David Rivkin and Lee Casey that challenged the constitutionality of the current health care reform proposals. The authors conclude that requiring each American to purchase health insurance would violate the Commerce Clause. In support of this argument, the authors review current Supreme Court case law on the Commerce Clause, stating:
Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
As expected, these passages generated a response in the blogsphere. Jonathan Adler of the Volokh Conspiracy states:
July 21, 2009
What Judge Sotomayor Didn't Say about Congress's Unenumerated Powers
Judge Sotomayor offered her thoughts about congressional authority, the Tenth Amendment, and enumerated powers in this written exchange with Senator Coburn:
How do you reconcile the tension between an enumerated power, the Tenth Amendment, and the Commerce Clause?
Response: The Interstate Commerce Clause is one of the constitutionally enumerated sources of congressional power. Within the scope of that and other sources of federal legislative power, Congress has broad authority. But the constitutional enumeration of federal legislative power is also a limitation: Congress has no authority to legislate except pursuant to a constitutionally enumerated source of power. See Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C.J.) ("The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written."). This is a critical feature of our constitutional federalism. The Tenth Amendment underscores this point by providing that "[t]he powers not delegated to the [United States] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
But Judge Sotomayor didn't say anything about another quote from McCulloch v. Maryland and the Necessary and Proper Clause:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
This quote appeared most recently in a couple of concurrences by Justice Thomas in Gonzales v. Raich (upholding the federal Controlled Substances Act over the state Compassionate Use Act, permitting the use of medical marijuana) and Sabri v. U.S. (upholding the federal bribery prohibition on the use of federal funds).
June 23, 2009
Can the Government Hold "Sexually Dangerous" Persons Beyond Their Prison Term?
The Supreme Court on Monday agreed to hear the government's appeal of a Fourth Circuit decision earlier this year that held that the government lacks authority to hold a "sexually dangerous" person beyond their prison term.
The Fourth Circuit case, U.S. v. Comstock, involved Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 (or just "Sec. 4248"), which authorizes the Attorney General to place in indefinite civil commitment any individual in federal Bureau of Prison custody that the AG designates as "sexually dangerous." The Fourth Circuit ruled that Sec. 4248 exceeded congressional authority; I posted on the decision here. Since then the Eighth Circuit upheld the provision in U.S. v. Tom, creating a circuit split.
The difference between the Fourth Circuit approach and the Eighth Circuit approach is this: The Fourth Circuit asked whether Sec. 4248 itself was authorized by the Commerce Clause (along with the Necessary and Proper Clause); but the Eighth Circuit asked whether Sec. 4248 was authorized only by the Necessary and Proper Clause as an appropriate mean to the end of enforcing the underlying conviction (which might be supported by any Article I authority, but most likely the Commerce Clause). In other words, the Fourth Circuit treated Sec. 4248 as a stand-alone act, an end in itself, based on the fact that Sec. 4248 operates only after an individual has served out the original sentence--i.e., after the BOP has an interest in continued confinement for anything having to do with the original offense. The Eighth Circuit, in contrast, treated Sec. 4248 as a means to an end--a way to help enforce the underlying act--in the same way that the Court held that involuntary civil commitment helped enforce the underlying indictment (but, importantly, not conviction) in Greenwood v. U.S.
If the Court sees Sec. 4248 as an end in itself (like the Fourth Circuit), Comstock would give the Court an opportunity to refine its Commerce Clause analysis under Lopez, Morrison, and Raich. But Comstock would be a particularly bad case in which to do this: The government didn't develop a Commerce Clause argument at the Fourth Circuit, and, as a result, the Fourth Circuit didn't have much to say. (The Fourth Circuit simply seemed bewildered by the government's reliance only on the Necessary and Proper Clause--an argument that sees Sec. 4248 as a means to the end of enforcing the underlying conviction and that better fits with the Eighth Circuit approach.) Even if the Court adopts this approach, we're therefore unlikely to see any dramatic new developments in the Commerce Clause coming out of this case.
If instead the Court sees Sec. 4248 as a means to an end (like the Eighth Circuit), Comstock would give the Court an opportunity to reassess the relationship between the Commerce Clause (or any Article I power supporting an underlying federal criminal law) and the Necessary and Proper Clause (which supports the related involuntary civil commitment). The key to this approach may well be Greenwood. The Court in that case ruled that Congress could authorize involuntary civil commitment for an individual found mentally incompetent to stand trial. But the civil commitment in Greenwood came before trial, at a point where the BOP still had an interest in the defendant for the underlying charge. Comstock is different: Comstock's civil commitment came after he served his time, at a point where the BOP no longer had an interest in him for the underlying conviction. (Note that Comstock's underlying conviction--possession of child pornography--is related to sex and therefore may make it easier for the Court to rule that his civil commitment as a "sexually dangerous" person was an appropriate mean to the end of enforcing the child pornography law. Under Sec. 4248, this need not have been the case. Sec. 4248 applies to anyone in BOP custody, whether they're held for a crime related to sex or not.) The government's claim in Comstock, then, is for a Necessary and Proper Clause that is somewhat broader than that which supported the civil commitment in Greenwood.
If the Court goes this latter route, as seems more likely, watch closely for its ruling and language on the scope of the Necessary and Proper Clause. If the Court holds that it extends to support Sec. 4248, this could give the government a revitalized tool that could (re-)open up congressional authority in the Commerce Clause and beyond.
February 27, 2009
Medical Marijuana & States' Rights - Reversal of Policy
Recall Gonzales v. Raich, 545 U.S. 1 (2005), in which the United States Supreme Court (6-3) construed the Commerce Clause to empower Congress to criminalize marijuana use regardless of state laws approving medical marijuana use.
The case involved California's law, a voter referendum, Proposition 215, passed in 1996. At present, thirteen states have laws authorizing the use of medical marijuana, according to Norml:
John Ashcroft, as the AG before Gonzales, had a fairly aggressive prosecution policy toward medical marijuana.
Now, Eric Holder, Obama's AG, has announced that medical marijuana prosecution is no longer a priority. Huffington Post has video of the news conference here. The statement occurs without much fanfare.
January 09, 2009
Fourth Circuit Rules Civil Commitment Law Unconstitutional
The Fourth Circuit yesterday ruled in U.S. v. Comstock that Congress lacked authority under the Commerce Clause to enact 18 USC sec. 4248, which authorizes the federal government to place in indefinite civil commitment "sexually dangerous" persons even after they've completed their entire prison sentence. The AG need only certify that a person in federal custody is "sexually dangerous"; this is enough to trigger an automatic stay of release well past their prison term for those in the case.
Many thanks to Corey Yung of the Sex Crimes Blog for the tip.
1. The government's apparent lack of Commerce Clause support for 4248 is stunning in light of Lopez, Morrison, and even Raich. It's not that they needed much. But there's just nothing. There is apparently no record linking sexual dangerousness to interstate commerce; there's no jurisdictional element; and sexual dangerousness is clearly not economic (at least under Morrison). The government doesn't seem to have done much to present the court even with any conceivable link to commerce. And this isn't a part of a broader regulatory scheme, at least not in the Raich sense. (It appears the government didn't seriously press this anyway.) Even if Raich eased the government's burden from Lopez and Morrison--and pulled back to rational basis review--the government's lack of commercial link here is still, well, stunning. It looks like either the government is testing the very outer limits of its Commerce Clause authority (but that's belied by the government's lack of serious argument on Raich); the government doesn't care about 4248; or somebody forgot to tell Congress about Lopez and Morrison.
2. The government's reliance on the Necessary and Proper Clause is equally stunning, and bewildering. Judge Motz (her emphasis):
Yet the Government attempts to defend the validity of sec. 4248 largely by direct reliance on the Necessary and Proper Clause. But that provision, by itself, creates no constitutional power . . . .
What is less understandable is the Government's heavy reliance on the Necessary and Proper Clause, standing alone, as a source of congressional power. Of course, as the Government contends at length, the Necessary and Proper Clause reaches broadly, but it does so only to effectuate powers specifically enumerated in the Constitution. Ordinarily, this would end our discussion of the [Clause]. But because the Government's defense of sec. 4248 relies almost exclusively on that Clause, we briefly address each of its specific arguments on this point.
Here's the upshot of the government's argument, as stated by Judge Motz (again, her emphasis):
Were we to accept the Government's logic, Congress could authorize the civil commitment of a person on a showing that he posed a general risk of any sexually violent conduct, even though not all, or even most, of this potential conducted violated federal law.