Saturday, November 20, 2010

Republican Senators File Amicus Opposing Health Care Reform

Thirty-three Republican Senators filed an amicus brief in the Northern District of Florida case challenging federal health care reform.  (We posted yesterday that state lawmakers filed their own amicus supporting reform.) 

The Republicans' brief collects and restates the several well known arguments that Congress lacked authority to enact the individual health insurance mandate under the Commerce Clause.  Thus the brief argues that (1) not getting health insurance isn't commerce and therefore isn't subject to Commerce Clause regulation, (2) at no time in our history has Congress required a "passive" person to purchase something under its Commerce Clause authority (and courts have never upheld this kind of exercise), (3) the government's theory would result in an unbridled Commerce Clause that would intrude into areas reserved for the states, vastly expand Congress's authority, and upset the delicate balance between federal enumerated powers and state police powers.

These are familiar arguments.  But two points in the brief caught my attention.  First, the Republicans argue that Congress didn't even find that not buying insurance substantially affects interstate commerce.  Instead, they argue, Congress found only that requiring the purchase of health insurance would substantially affect interstate commerce.  They argue that the Court requires Congress to find that the action regulated--and not the regulation itself--substantially affects interstate commerce, and therefore even Congress didn't find facts sufficient to support the exercise of its Commerce Clause authority in this way.

They also argue that while Congress has required "passive" individuals to do something under other Article I authorities (e.g., the authority to raise and support armies), it has never done so under the Commerce Clause.  They don't explain why this matters--why the principle that Congress can require action under one Article I authority doesn't transfer to other Article I authorities--except to say that authority here would lead to a limitless Commerce Clause. 

SDS

November 20, 2010 in Commerce Clause, Congressional Authority, Federalism, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, October 14, 2010

Florida District Judge Rules on Motion to Dismiss Health Care Reform Challenge

In a 65 page opinion issued today, Senior United States District Judge Roger Vinson of the Northern District of Florida has granted in part and denied in part the morion to dismiss the complaint.

The Complaint alleges that the Health Care Reform Act is unconstitutional on various grounds in six counts and the Motion to Dismiss was directed at all the counts.

Here is the bottom line:

(1) the individual mandate and concomitant penalty exceed Congressional authority under the Commerce Clause and violate the Ninth and Tenth Amendments;   NOT DISMISSED

(2) the individual mandate and penalty violate substantive due process under the Fifth Amendment; DISMISSED

(3) if the penalty imposed for failing to comply with the individual mandate is found to be a tax, it is an unconstitutional unapportioned capitation or direct tax in violation of U.S. Const. art. I, § 9, cl. 4, and the Ninth and Tenth Amendments; DISMISSED AS MOOT

(4) the Act coerces and commandeers the states with respect to Medicaid by altering and expanding the program in violation of Article I and the Ninth and Tenth Amendments; NOT DISMISSED

(5) it coerces and commandeers with respect to the health benefit exchanges in violation of Article I and the Ninth and Tenth Amendments; DISMISSED

(6) the employer mandate interferes with the states' sovereignty as large employers and in the performance of government functions in violation of Article I and the Ninth and Tenth Amendments; DISMISSED

 Thus, the case will proceed on the issue of whether the individual mandate is in excess of Congress' commerce power in contravention of the Tenth Amendment and on the issue of whether the Medicaid changes are in excess of Congress' Article I power and in contravention of the Tenth Amendment.

RR

October 14, 2010 in Commerce Clause, Medical Decisions, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, September 27, 2010

Washington High Court Upholds State Internet Gambling Ban

The Washington Supreme Court last week unanimously upheld the state's ban on internet gambling against a Dormant Commerce Clause challenging, ruling that the ban was not "clearly excessive" in relation to legitimate state interests.

The case, Rousso v. State of Washington, involved a Washington statute that criminalizes "the knowing transmission and reception of gambling information by various means, including use of the Internet."  The plaintiff, a Washington would-be gambler, claimed that the statute discriminated against out-of-staters in its effects and that Washington could have achieved its objectives by merely regulating, not completely banning, internet gambling.

The high court disagreed.  In an opinion chock full of deference to the legislature and liberally laced with separation-of-powers and institutional competence concerns, the court ruled that the ban did not discriminate against out-of-staters, either on its face or in effect.  It thus applied the familiar test that an evenhanded law does not violate the Commerce Clause if (1) there is a legitimate state purpose and (2) the burden imposed on interstate commerce is not "clearly excessive" in relation to the law's benefit. 

Here, the state was concerned about gambling addiction, underage gambling, money laundering, and organized crime--clearly legitimate state purposes.  The court ruled that the ban was not "clearly excessive" because any lesser action--regulation of internet gambling, e.g.--would be unduly burdensome and would not similarly achieve the benefits of the ban.  Even though the state regulates, not bans, "brick and mortar gambling operations," similar state regulation of internet gambling "would be an interstate-commerce burdening nightmare."

The court found Minnesota v. Clover Leaf Creamery Co. instructive:

There the Minnesota legislature banned the retail sale of milk in plastic nonreturnable, nonrefillable containers because they presented a solid waste management problem, caused energy waste, and depleted natural resources.  Other nonreturnable, nonrefillable containers, such as ones made from paperboard, raised similar concerns but were not banned. . . .

Even though plastic and paperboard nonreturnable, nonrefillable containers caused the same ultimate ills, the Supreme Court . . . held the ban on plastic containers, which still permitted paperboard containers, was consistent with the dormant commerce clause.

Similarly, here "both brick and mortar gambling and Internet gambling pose many of the same threats to citizens' health, welfare, safety, and morals, yet only the latter is banned."

SDS

September 27, 2010 in Commerce Clause, Dormant Commerce Clause, Federalism, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Sunday, July 18, 2010

Health Insurance Mandate: "Commerce" or "Tax"?

The Obama administration switched its position on the individual health insurance mandate and now claims that it is a "tax," according to the New York Times in a provocatively titled article Changing Stance, Administration Now Defends Insurance Mandate as a Tax.

The Times reports that the administration is now defending the mandate--perhaps the most controversial piece of the Patient Protection and Affordable Care Act--primarily as a tax, and not primarily as a regulation of commerce, in federal court cases seeking to overturn the Act as unconstitutional.  According to the story, administration officials describe the tax argument as the "linchpin" of their case.  The story suggests that the switch came in response to increasing criticism of the mandate as exceeding Congress's authority under the Commerce Clause--authority that allows Congress to regulate anything that has a substantial effect on interstate commerce.  The article suggests that this "switch," then, is a new (and disingenuous) argument.  (We've covered the Commerce Clause and taxation arguments here, here, here, and here.  We've covered other aspects of the bill here and here.)

Just one problem: The article is wrong.

The administration has consistently defended the mandate in court first as an exercise of Congress's Commerce Clause power and only (far) second as an exercise of its taxing power under the General Welfare Clause.  Take, for example, the Justice Department's brief in Virginia v. Sebelius, the case in the Eastern District of Virginia.  In that brief, the government devotes 15 pages to its thorough and aggressive argument under the Commerce Clause--its primary substantive argument--and a mere 4 pages for its near-after-thought argument on taxation.  Yet the Times article quotes a portion from the tax argument in that very brief as evidence that the administration has changed its stance.

Take, for another example, the Justice Department's brief in Florida v. HHS, the Northern District of Florida case.  In that brief, the government devoted a similar 16 pages to the Commerce Clause--again its primary substantive argument on the mandate--and a mere 3 to its secondary taxation argument.

(Thanks to the ACA Litigation Blog for the briefs.  The ACA Litigation Blog is a new blog dedicated to following the litigation around health care reform.)

In its first brief in these cases, Thomas More Law Center, et al. v. Obama, in the Eastern District of Michigan, the government similarly privileged its Commerce Clause argument over its taxation argument.

The taxation argument was actively in play as early as last fall, even if the government has never (even now) used it as its primary authority in litigation for the mandate.

In short, the government's litigation position seems to have been consistent: The mandate is supported primarily by the Commerce Clause and only secondarily and alternatively by the taxation authority under the General Welfare Clause.

But in the end, does it matter?  As the Times story indicates, Congress went to great lengths in the Act to justify the mandate as an exercise of its Commerce Clause authority, and virtually ignored its taxation authority.  And administration officials have repeatedly claimed that the mandate is not a tax.

But there's no requirement that Congress name the particular authority it uses in its legislation (although that might help the courts uphold it), and there's certainly no requirement that the government's (or any litigant's) public pronouncements about their positions line up with their litigation positions.  And in the end, whether the mandate is "commerce" or a "tax" doesn't really matter to those affected--they still have to comply, or face the penalty.

The only way the administration's public "switch" (if such a switch really exists) might matter is in a government's normative obligation to state publicly what it also states in litigation.  This may be an attractive standard to promote government transparency, publicity, and educated public discourse, but we have never held the government to it. 

SDS

July 18, 2010 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (6) | TrackBack (0)

Monday, July 12, 2010

Cornyn, Kagan on Congressional Treaty Power

Among Supreme Court Nominee Elena Kagan's written responses to members of the Senate Judiciary Committee released on Friday was this exchange with Senator Cornyn on congressional power to enact legislation implementing a treaty:

[Question 4] Missouri v. Holland, 252 U.S. 416, 432 (1920), held that "[i]f a treaty is valid there can be no dispute about the validity of a statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government."

[Question 4a.] In your view, can Congress and the President expand or evade the scope of Congress's Article I powers by entering into a treaty requiring an enforcing law that would otherwise be unconstitutional [as exceeding congressional authority under Article I]?

Response: Missouri v. Holland held that Congress may enact a statute implementing a treaty pursuant to its authority under the Necessary and Proper Clause, even if Congress does not otherwise have Article I authority to do so, provided the statute does not violate a constitutional prohibition.

Emphasis added.

The exchange brings to mind debates even today about whether Congress can "exceed its authority" by enacting legislation under the General Welfare Clause--that is, whether Congress can do under the General Welfare Clause what it can't do under, say, the Commerce Clause.

Of course it can.  Madison and Hamilton waged this debate many years ago--Madison for the limited view, Hamilton for the expansive view--and the Court settled it in favor of Hamilton in 1936 in United States v. Butler

The issue for the General Welfare Clause (and also for congressional authority to implement a treaty) is not whether the political branches can "expand or evade the scope of Congress's Article I powers," as Senator Cornyn suggests.  Instead, the General Welfare Clause and the Necessary and Proper Clause (to implement a treaty) are themselves independent congressional powers.  That Congress could not achieve its goals under, say, the Commerce Clause just doesn't matter, because it can achieve them by other valid means. 

It's a separate question, of course, whether Congress should achieve the goals at all.  Senator Cornyn went on to ask about this--with respect to the Gun Free School Zones Act (overturned as exceeding the Commerce Clause in United States v. Lopez), the civil damages provision in the Violence Against Women Act (overturned as exceeding the Commerce Clause and Section 5 of the Fourteenth Amendment in United States v. Morrison), and the individual health insurance mandate in the recent health care reform legislation (yet to reach the Supreme Court). 

Could Congress achieve its policy goals in these areas by enacting a treaty and implementing it through legislation?  Surely, every bit as much as it could under its spending power.

Whether it should is a question for Senator Cornyn, not Nominee Kagan.

SDS

July 12, 2010 in Commerce Clause, Congressional Authority, Interpretation, Separation of Powers, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 6, 2010

DOJ Files Complaint Against Arizona SB 1070 Alleging Statute Unconstitutional: Analysis

Azdhometitle4 As anticipated, the Department of Justice has filed a complaint in Arizona federal court seeking a declaration and injunction that Arizona SB 1070, the controversial statute signed into law April 23 regarding immigration is unconstitutional.  The DOJ complaint has three causes of action: the supremacy clause, preemption, and the [dormant] commerce clause.  

With the complaint, the DOJ has filed a motion for preliminary injunction and supporting memorandum [available here].  The DOJ memo concentrates on the preemption argument as the basis for the likelihood to prevail on the merits prong of the preliminary injunction standard.  (We've previously discussed the preemption arguments here).  The DOJ argues different types of preemption, including field and conflict:

In enacting a state policy of “attrition through enforcement,” Arizona’s S.B. 1070 ignores every objective of the federal immigration system, save one: the immediate apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1. Arizona’s one-size-fits-all approach to immigration policy and enforcement undermines the federal government’s ability to balance the variety of objectives inherent in the federal immigration system, including the federal government’s focus on the most dangerous aliens. By requiring local police officers to engage in maximum inquiry and verification (on pain of civil suit) and by providing for the conviction and incarceration of certain foreign nationals in Arizona for their failure to register, for entering or traveling throughout the state using commercial transportation, or for soliciting work, the “balance” struck by S.B. 1070 is not only different from that of the federal government, but it will interfere with the federal government’s ability to administer and enforce the immigration laws in a manner consistent with the aforementioned concerns that are reflected in the INA. Despite the statute’s self serving claim that it “shall be implemented in a manner consistent with federal laws regulating immigration,” S.B. 1070 § 12, the act mandates a conflicting, Arizona-specific immigration policy – “attrition through enforcement” – and prescribes various provisions that implement that policy in conflict with federal priorities. To permit a hodgepodge of state immigration policies, such as the one Arizona has attempted in S.B. 1070, would impermissibly interfere with the federal government’s balance of uniquely national interests and priorities in a number of ways.

DOJ Memo at 23 (emphasis added).  Additionally, the memo argues that the state law interferes with United States foreign relations and foreign affairs.

The memo also highlights specific provisions of SB 1070 that it argues are preempted. The memo argues sections 2 and 6 are preempted because their mandatory requirements for determining immigration status conflict with federal law and priorities: section 2 will result in the harassment of lawfully present aliens and is therefore at odds with congressional objectives and will "burden federal resources and impede federal enforcement and policy priorities;” section 6 extends Arizona’s “warrantless arrest authority to out-of-state ‘removable’ offenses and is preempted because it will lead to the harassment of aliens.”  Section 3, the “complete or carry an alien registration document” provision is preempted because interferes with comprehensive federal alien registration law and “seeks to criminalize unlawful presence and will result in the harassment of aliens.”  Section 4, amending Arizona’s alien smuggling statute is preempted because it conflicts with federal law.  Section 5, the state criminal sanction against unauthorized aliens who solicit or perform work is preempted by the federal employer sanctions scheme, and the “transporting, harboring, or concealing provision” violates preemption and dormant commerce clause principles (the item of commerce in question being the “alien” him or herself). 

This high-profile complaint joins the other lawsuits filed alleging the unconstitutionality of SB1070, including on equal protection grounds.

{Update: Arizona immigration statute partially enjoined; here}

RR

July 6, 2010 in Commerce Clause, Current Affairs, Dormant Commerce Clause, Federalism, Foreign Affairs, Fundamental Rights, News, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Sunday, May 16, 2010

Government Defends Individual Health Insurance Mandate

The Justice Department last week filed its first defense of the new health insurance mandate in federal court.  The government responded to the plaintiffs' motion for a preliminary injunction in Thomas More Law Center, et al. v. Obama in the Eastern District of Michigan, a case filed just after President Obama signed into law the Patient Protection and Affordable Care Act (the health care reform act), which includes the mandate.

Plaintiffs filed their motion and brief on April 5, arguing that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance.  The arguments are by now all too familiar; from the plaintiffs' brief:

The Act does not even pretend to fit within any of the Court's previous Commerce Clause rulings.  The Individual Mandate attaches to a legal resident of the United States who chooses to sit at home and do nothing.  This resident is, quite literally, merely existing.  He or she is neither engaged in economic activity nor in any other activity that would bring him or her within the reach of even a legitimate regulatory scheme. . . .  In this case, we have neither economics nor activities.

. . .

If the Act is understood to fall within Congress' Commerce Clause authority, the federal government will have the absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law, such as taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy, among others.  The term "Nanny State" does not even begin to describe what we will have wrought if in fact the Health Care Reform Act falls within any imaginable governmental authority.  To be sure, George Orwell's 1984 will be just the primer for our new civics.

(Citations, primarily to Wickard v. Filburn, U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich, omitted.)

The government responded that the plaintiffs lacked standing--no actual or imminent injury and no ripeness, because the mandate doesn't go into place until 2014, and the plaintiffs' situations may change between now and then.  On the merits, the government argued both Commerce Clause and Taxing Clause.  As to the activity-inactivity distinction that has attracted so much attention in Commerce Clause arguments, it wrote:

Plaintiffs' claim that individuals who forgo health insurance are not engaged in any economic "activity," is fallacious.  Some individuals make what Congress found is an "economic and financial decision" to try to pay for health care services without reliance on insurance.  Indeed, plaintiffs here concede that they intend to "pay for health care services as [they] need them."  Plaintiffs thus have not opted out of health care; they are not passive bystanders divorced from the health care market.  They have made a choice regarding the method of payment for the services they expect to received, no less "active" than a decision to pay by credit card rather than by check.

The government went on to argue that the mandate is an essential part of the larger health reform package and therefore within Congress's Commerce Clause authority under Raich, and that the mandate also falls under Congress's broad taxing power in the general welfare as a legitimate revenue-raising device notwithstanding its regulatory goal.

SDS

May 16, 2010 in Commerce Clause, Congressional Authority, Recent Cases, Taxing Clause | Permalink | Comments (2) | TrackBack (0)

Monday, April 5, 2010

Shapiro Offers to Debate Healthcare Anytime, Anywhere

Ilya Shaprio (Cato Institute) offers to debate the constitutionality of health care reform anytime, anywhere--just pay his travel expenses:
 



Shaprio claims to make his offer because he's heard that some groups have had a hard time finding anyone to make the constitutional case against health care reform.  This seems surprising--see our coverage of opponents, on constitutional grounds (Tenth Amendment, Commerce Clause, and other grounds), here, here, and here.

SDS

April 5, 2010 in Commerce Clause, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

Constitutional Challenge to Health Care Mandate: Complaint

 Within ten minutes of President Obama’s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the constitutionality of the statute. SUDO000Z

The states - - - Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota - - -  contend that the Act “greatly alters the federal-state relationship, to the detriment of the states, with respect to Medicaid programs specifically and healthcare coverage generally” (para 39).  

Count One, entitled “Unconstitutional Exercise of Federal Power and Violation of The Tenth Amendment (Const. Art. I & Amend. X)”  alleges both that the Act exceeds Congressional power under Art I sec 8; the “taxing and Spending Clause”; or “any other provision of the Constitution” (para 56), and that the Act violates the Tenth Amendment.

Count Two, entitled “Violation of Constitutional Prohibition of Unapportioned Capitation or Direct Tax
(Const. Art. I, §§ 2, 9)” alleges that the tax penalty on uninsured persons “constitutes a capitation and a direct tax that is not apportioned among the states.”

Count Three, entitled “Unconstitutional Mandate That All Individuals Have Health Insurance Coverage Or Pay Tax Penalty (Const. Art. I & Amend. X)”  alleges:
The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment (para 65).

The fourth and final count seeks declaratory judgment based on the previous allegations.

For pedagogical purposes, the Complaint could be used as an in class exercise in a Constitutional Law course, perhaps using some of the materials available from the Federalist Society here to write a memo in support of the complaint, as well our previous discussions here and here.  It might also be useful for a Constitutional Litigation seminar to engage in a redrafting of the Complaint or a drafting of an Answer.

RR

March 23, 2010 in Commerce Clause, Congressional Authority, Current Affairs, Federalism, Medical Decisions, News, Supremacy Clause, Teaching Tips, Tenth Amendment | Permalink | Comments (3) | TrackBack (0)

Thursday, January 14, 2010

Sex Crimes Blog on Comstock

Professor Corey Yung (John Marshall, Chicago), editor of the Sex Crimes Blog, has a round-up of commentary on the Comstock oral arguments here and here.  (U.S. v. Comstock, argued at the Supreme Court on Tuesday, tests whether Congress can authorize the indefinite detention of "sexually dangerous" federal prisoners, even beyond their prison term.)  Yung offers his own insightful analysis here and here, with a prediction here.  Our commentary is here.

SDS

January 14, 2010 in Commerce Clause, Congressional Authority, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 8, 2010

More on the Constitutionality of Health Care Reform

Simon Lazarus, Public Policy Counsel to the National Senior Law Center, published an Issue Brief with the American Constitution Society last month taking on the various claims that a health insurance mandate (in the Senate version of health care reform) and tax incentives encouraging the purchase of health insurance (in the House version) are unconstitutional.  We've covered the issue here, here, and here.

Here's Lazarus on the claim that requiring health insurance amounts to regulating non-activity--one of the more popular arguments that health care reform exceeds Congress's Commerce Clause powers:

This "inactivity" is empty and verbal gimmickry.  Individuals who go without health insurance--if health insurance is available to them and affordable, a contingency that the legislation goes to great lengths to eliminate--are not "doing nothing."  They are deciding to put off paying for health insurance and for health care--because they believe that they won't need it until some future date, or because they recognize that, one way or the other, through hospital emergency room care or other means, necessary care will be available if serious illness or an accident strikes.

Brief at 8-9.

Lazarus concludes by putting the issue in a larger context:

If, as opponents claim, the burden of mandatory health contributions was--in principle--oppressive and unfair, Medicare, and for that matter Social Security taxes would raise constitutional questions no less if these landmark statutory programs were cast as regulations of interstate commerce.  In fact, of course, since 1937, such questions have never been raised either in the courts or in Congress.  The reason is simple:  most people regard these mandatory contributions--in light of what they expect to receive in exchange--as a bargain not a burden.

Brief at 15 (emphasis in original).

SDS

January 8, 2010 in Commerce Clause, Congressional Authority, Due Process (Substantive), News, Takings Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Friday, December 4, 2009

"State Sovereignty" and the Health Insurance Mandate

NPR's Morning Edition this morning reported on state movements to sidestep any health insurance mandate that might come out of the health care overhaul now before Congress.  (We previously reported on these here.)  These are state constitutional and state statutory measures that say that individuals shall not be required to purchase health insurance.

If Congress has authority to enact an individual health insurance mandate, these state measure run up against the Supremacy Clause: They are almost surely unconstitutional, as conflicting directly with the federal requirement.

But advocates of the measures nevertheless claim that they interfere with "state sovereignty."  As one advocate in the last line of this morning's story said, "No Supreme Court has ever been more sympathetic to state sovereignty than the current Court."

Whether that's right or not, it almost surely would not affect the Supremacy Clause analysis (unless the Court were willing to undo well settled Supremacy Clause principles).  So what does it mean?

One possible answer: A mandate's interference with "state sovereignty" means that Congress lacks authority under the Commerce Clause and Necessary and Proper Clause to enact a mandate in the first place.  This interpretation might draw support from U.S. v. Lopez (holding that Congress lacked authority under the Commerce Clause to enact the Gun Free School Zone Act) and U.S. v. Morrison (holding that Congress lacked authority under the Commerce Clause to enact the civil damages provision of the Violence Against Women Act).  The majority in both of those cases referred to the slippery slope that might result if Congress had authority to enact those laws: "Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . . .  Under the[se] theories . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign."  But neither case turned on this slippery slope, and the interference with traditionally state regulated activities alone is surely not enough to render congressional action unconstitutional.  See Gonzales v. Raich (upholding a federal drug possession law).

State sovereignty claims aside, some (including some commentators on this blog) have argued that Congress lacks authority under the Commerce Clause to impose a mandate, because not having health care (the activity regulated) is not a commercial activity.  Stated differently: Congress can restrain or regulate economic activity; but it cannot require economic activity.

This argument makes two mistakes.  First, it distinguishes a restriction (a regulation) with a requirement (as non-regulation), and, relatedly, it distinguishes action (as economic activity) with non-action (as non-economic activity).  It's not at all clear that the courts view "economic activity" this way.  For example, the Eighth Circuit in U.S. v. Howell, 552 F.3d 709 (2009) recently upheld a federal provision requiring former sex offenders to register as sex offenders under the Commerce Clause.  That court rejected the criminal defendant's argument that Congress lacked authority to regulate non-action under the Commerce Clause.  Similarly, the Second Circuit in U.S. v. Sage, 92 F. 3d 101 (1996), upheld a federal law criminalizing the failure to pay past child support obligations.  The Sage court addressed the question squarely:

Sage argues that the Act is not within the Commerce Clause power and thus invalid on its face because it concerns not the sending of money interstate but the failure to send money.

Such reasoning would mean that Congress would have no power to prohibit a monopoly so complete as to thwart all other interstate commerce in a line of trade.  Yet the Sherman Act . . . is within the Commerce Clause power. . . . To accept Sage's reasoning would disable the United States from punishing under the Hobbs Act . . . making it a crime to "obstruct" interstate commerce, someone who successfully prevented the interstate trade by extortion and murder.  There would be no trade to obstruct.

Sage at 105 (citations omitted).  These cases might be distinguished because they only require activity that is already required under state law, or because they require limits to economic activity.  But they--and Howell--also suggest that the courts do not draw the sharp line between restrictions and requirements, actions and non-actions, that this argument assumes.

And with good reason.  In the health care context, an election not to purchase health insurance is every bit an economic activity as an election to purchase.  It's those significant interstate economic costs associated with individuals' elections not to purchase that in some measure sparked the health care debate in the first place.  Not purchasing, in this context, is an economic activity.

But the argument makes a second mistake.  The Supreme Court has never required only "economic activity" as a subject of regulation under the Commerce Clause.  In Lopez, Morrison, and Raich, the Court was quite clear that Congress can regulate activity that has a substantial effect on interstate commerce (in addition to the channels and instrumentalities of interstate commerce).  Decisions not to purchase health insurance, "economic" or not, surely have such a substantial effect--again, it's that effect that's driving much of the movement for reform.

Whatever the merits of the policy arguments against an individual mandate, these Commerce Clause arguments based on "state sovereignty" and lack of economic activity do not render them unconstitutional.

SDS

December 4, 2009 in Commerce Clause, Congressional Authority, News, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, November 12, 2009

Cato, Barnett Weigh in on Extended Civil Commitment of "Sexually Dangerous" Persons

The Cato Institute and Professor Randy Barnett (Georgetown) filed an amicus brief in U.S. v. Comstock, the case involving Title III of the Adam Walsh Child Protection Act, 18 U.S.C. 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."

Respondent in the case, Graydon Earl Comstock, challenges the Act as exceeding congressional authority.  The Fourth Circuit overturned the Act; the Eighth Circuit upheld it in U.S. v. Tom.  I previously posted on the case here and here.

The government argues that Congress had authority to enact the provision under the Necessary and Proper Clause alone, and as an incident of its authority to run the federal penal system (itself, claims the government, authorized by a hodgepodge of Article I powers, including the Commerce Clause). 

Cato and Barnett take on this claim, and add a little Tenth Amendment:

The Constitution itself is clear: the Necessary and Proper Clause allows Congress to make laws only "for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States . . . ."

Thus, legislation adopted under the Clause may be justified only by an enumerated power, not by an implied power.  Congress may carry into execution the powers specifically delegated to it, and the Necessary and Proper Clause permits adoption of reasonable means to carry into execution the enumerated power.  But there the power ends.  Indeed, the Tenth Amendment was adopted to ensure that Congress did not rely upon the Clause to expand its powers beyond those enumerated.  As it must, this Court has guarded against the danger perceived at the founding of the Republic: in the 190 years since M'Culloch, this Court has never upheld a statute based on the Necessary and Proper Clause that was not tethered to a specific enumerated power. . . .

Notably, the Government does not and cannot affirmatively argue that the Act is a legitimate exercise of Congress' Commerce Clause power.  Civil commitment involves neither commerce nor interstate activity.

Pp. 4-6 (emphasis in original).

SDS

November 12, 2009 in Commerce Clause, Congressional Authority, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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.

RivkinWickard 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.

SDS

November 10, 2009 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Monday, October 19, 2009

Medical Marijuana

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.  

Marijuana

There is also a continuing discussion - - - although apparently not in the current DOJ - - - regarding the decriminalization of marijuana, including substantive due process arguments.

RR


October 19, 2009 in Commerce Clause, Due Process (Substantive), Federalism, Medical Decisions | Permalink | Comments (2) | TrackBack (0)

Saturday, October 10, 2009

Matthew Shepard Act Passes House of Representatives

The House of Representatives passed the Matthew Shepard Hate Crimes Prevention Act, as part of the National Defense Authorization Act of 2010.  

The Act, named for Matthew Shepard (pictured below),  

Matthew_shepard

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].

RR

October 10, 2009 in Commerce Clause, Congressional Authority, Current Affairs, Federalism, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Friday, 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. 

We've posted on similar constitutional issues in the health care reform debate here, here, and here.

SDS

September 25, 2009 in Commerce Clause, Congressional Authority, Federalism, News | Permalink | Comments (32) | TrackBack (0)

Sunday, 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.

SDS

September 13, 2009 in Commerce Clause, Congressional Authority, Federalism, News, Preemption, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Tuesday, 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).

SDS

July 21, 2009 in Commerce Clause, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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.

SDS

June 23, 2009 in Commerce Clause, Congressional Authority, Recent Cases | Permalink | Comments (0) | TrackBack (0)