Constitutional Law Prof Blog

Congress Holds Holder in Contempt, Authorizes Suit

The House of Representatives voted today to approve House Resolution 706, holding AG Eric Holder in contempt of Congress for declining to turn over documents related to the DOJ's response to congressional and media inquiries into the Fast and Furious program.  Under the Resolution, the House holds AG Holder in contempt and authorizes the Chair of the House Oversight and Government Reform Committee, Rep. Darrell Issa, "to initiate or intervene in judicial proceedings in any Federal court of competent jurisdiction . . . to seek declaratory judgments affirming the duty of [AG Holder] to comply with any subpoena that is a subject of the resolution accompanying House Report 112-546"--the report issued by the Committee last week.

We posted on the Committee's vote here (with links to helpful sources); we posted on the administration's subsequent assertion of executive privilege here.

The move means that Rep. Issa and his committee can take the case directly to court, bypassing another option--referring the matter to the Assistant U.S. Attorney for D.C.  If Rep. Issa files, he will ask the court to order AG Holder to turn over the subpoenaed documents, notwithstanding the administration's assertion last week of executive privilege.  

The vote was 255 to 67, largely along party lines.  Seventeen Democrats voted with Republicans; two Republicans crossed the aisle.  More than 100 Democrats boycotted the vote altogether.

SDS

Supreme Court Upholds Affordable Care Act

A sharply divided Supreme Court today upheld key provisions in the Affordable Care Act (the "ACA," or Obamacare).  The upshot is that five Justices (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) held that universal coverage (or the individual mandate) is upheld, and that a three-Justice plurality (Chief Justice Roberts and Justices Breyer and Kagan) held Medicaid expansion is upheld in a somewhat weaker form.  A different five Justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) held that the commerce clause did not support universal coverage (but for different reasons).

The ruling means that universal coverage stands, and Medicaid expansion stands, although in a somewhat weaker form.

Our analyses of oral arguments are here, here, and here.  We'll have more analysis of the opinion; here's just a breakdown of the holding.

Chief Justice Roberts wrote for the majority; by issue:

Taxing Clause.  A five-Justice majority held that Congress could enact the universal coverage provision (also called the individual mandate) under the taxing authority.  Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that the tax penalty for failing to purchase health insurance was a valid tax.  

First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.  It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the "prohibitory" financial punishment in Drexel Furniture.  Second, the individual mandate contains no scienter requirement.  Third, the payment is collected solely by the IRS through the normal means of taxation--except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.

Op. at 35-36.  The majority was untroubled that the tax penalty could be a "tax" for taxing authority purposes, but a non-"tax" for Anti-Injunction Act purposes: Chief Justice Roberts wrote that Congress itself enacted the AIA and could therefore itself draft around it (which it did here); but Congress's taxing authority may support congressional action whether or not Congress calls its action a "tax."

Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that universal coverage exceeded the taxing power.

Commerce Clause.  A five-Justice majority concluded that the Commerce Clause did not support congressional authority to enact universal coverage, but for two different reasons.  Chief Justice Roberts, writing for himself alone, wrote that universal coverage amounted to regulating before entrance into the market for health services--i.e., regulating someone who's "inactive."  (And Chief Justice Roberts didn't buy the government's claim that the maarket for health insurance was integrally connected to the market for health care.)  Chief Justice Roberts wrote that universal coverage was unprecedented and unsupported by the Court's cases.  (Chief Justice Roberts justified reaching the issue--even though the case could be (and was) decided on the taxing power alone--because, he said, the government designed universal coverage first as a regulation and only secondly (or alternatively) as a tax.)

Justices Scalia, Kennedy, Thomas, and Alito took a harder line, arguing that Congress here went too far, because it first sought to create commerce, and then to regulate it.

Medicaid Expansion.  Chief Justice Roberts wrote for himself and Justices Breyer and Kagan that Medicaid expansion as-is under the ACA--in which a state declining to participate in Medicaid expansion would stand to lose its entire pot of federal Medicaid money--was unduly coercive.  But the same plurality held that Medicaid expansion could be saved by simply reading the statute to mean that a declining state could lose only the additional federal money that would have come with the expansion.

Justices Ginsburg and Sotomayor wrote separately to argue that Medicaid expansion as-is under the ACA did not violate the Constitution.

Justices Scalia, Kennedy, Thomas, and Alito dissented, writing that Medicaid expansion was flatly unconstitutional.

SDS

The Legality of the Administration's Position on Immigration

In the wake of President Obama's announcement last week that his administration would exercise prosecutorial discretion not to deport certain young people--undocumented aliens brought to the U.S. by their parents--Republicans cried foul and accused the President of overstepping his bounds by violating the law and not just enforcing it.  

Representative Steve King (R-IA) apparently moved one step closer to filing a lawsuit to stop the administration's move, citing separation-of-powers concerns.  Although we haven't seen a complaint yet, Rep. King argues, according to the Daily Caller, that the President's move was "constitutional overreach."  According to King:

If he can do this by memorandum, then he can raise the debt limit by the same standard.  He could argue that he's not going to audit nor enforce tax collection on certain classes of people.  He could do that by age group.  He could do that by race, by ethnicity.  The president can do anything he wants to do.

According to the story, Rep. King's "central argument" is that "the president has legislated by memorandum."

Rep. King's legal claims aren't particularly developed--they're bald, they overstate any slippery slope, and they're at least in part obviously false--but they well represent the kinds of claims we've heard from opponents of the President's move.

On the other side, a group of immigration and constitutional law professors sent this letter to the White House late last month, outlining three different ways that President might exert prosecutorial discretion under the law and prior practice.  According to the profs, the President could use "deferred action," "parole-in-place," or "deferred enforced departure" to support his prosecutorial discretion not to deport this class of individuals.  The profs argue that these methods are supported in both law and prior executive practice.

Indeed, Secretary Janet Napolitano's memorandum implementing the President's announced practice draws on deferred action, even if it doesn't cite specific authority (as the profs do).  The memo is careful to emphasize "prosecutorial discretion," attention to "enforcement priorities," and case-by-case consideration, ensuring that the practice stays on the execution-side of that sometimes fuzzy line between lawmaking (reserved for Congress) and law-executing (reserved for the President).  

The memo sets out 5 criteria for individualized consideration and says,

Our Nation's immigration laws must be enforced in a strong and sensible manner.  They are not designed to be blindly enforced without consideration given to the individual circumstances of each case.  Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language.  Indeed, many of these young people have already contributed to our country in significant ways.  Prosecutorial discretion, which is used in so many other areas, is especially justified here.

As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal.  No individual should receive deferred action under this memorandum unless they first pass a background check[,] and requests for relief pursuant to this memorandum are to be decided on a case by case basis.  DHS cannot provide any assurance that relief will be granted in all cases.

Opponents, like Representative King, seem to argue that President Obama's announcement represents a blanket policy that thrusts into the lawmaking power reserved for Congress.  But Secretary Napolitano's memo makes clear that this is no blanket policy; it is more like guidance to ensure that enforcement officers take the administration's priorities into account when determining whether to pursue deportation on a case-by-case basis.  And the law profs' letter shows why this exercise of prosecutorial discretion is supported by law and past executive practice.

Also working against opponents: Both the House and the Senate last year introduced legislation, but then let it stall in committee, to rein in the President's authority to do exactly what he did.  The bills, cleverly titled the Hinder the Administration's Legalization Temptation, or HALT, Act, H.B. 2497 and S. 1380, are both tied up in committees.  The bills, by moving to rein in the President, also recognize that the President has prosecutorial discretion.  Yet Congress didn't pass them, or even, apparently, prioritize them.

SDS

President Asserts Executive Privilege in Fast and Furious Investigation

The President today formally asserted executive privilege in the ongoing dispute between the House Oversight and Government Reform Committee and AG Eric Holder related to the Committee's subpoena for documents from Holder related to Fast and Furious.  The move comes as the Committee is considering a contempt resolution against AG Holder for withholding documents related to the Department of Justice's investigation into the program and its reaction to Committee and media inquiries.  

The move means that the contempt resolution by the Committee will have even less effect in ultimately producing any documents than it might have had before the assertion of privilege.  (And it's not clear that the resolution would have had any effect, anyway.)  If past practice is any guide, the invocation of executive privilege ensures that the Department of Justice will not prosecute for criminal contempt.  (Recall that the contempt resolution, as of yesterday, refers the matter to the US Attorney for D.C., and apparently does not seek authority for the Committee or the House to pursue a civil judgment in federal court.)

AG Holder asked President Obama to invoke executive privilege in this letter yesterday.  In the letter, AG Holder writes that he is

very concerned that compelled production to Congress of internal Executive Branch documents generated in the course of the deliberative process concerning its response to congressional oversight and related media inquiries would have significant, damaging consequences: It would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight.  This would raise substantial separation of powers concerns and potentially create an imbalance in the relationship between these two co-equal branches of the Government.

AG Holder wrote that the Committee's interest in the material didn't meet the standard to overcome an assertion of executive privilege--"demonstrably critical to the responsible fulfillment of the Committee's functions," Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974)--because it's not obviously related to a legislative function of the Committee, because the Department already substantially complied with the Committee's requests, and because an internal IG investigation should assuage any congressional concerns that the Department is attempting to conceal important facts.

Deputy AG James Cole wrote this letter to Representative Issa, summarizing AG Holder's legal analysis and reporting that the President had formally invoked the privilege.

SDS

Issa, Committee to Vote on Holder Contempt Resolution

Representative Darrell Issa, Chair of the House Oversight and Government Reform Committee, is poised to move forward tomorrow on a vote on a contempt resolution against AG Eric Holder.  The Resolution and Report cite Holder's failure to turn over documents that the Committee earlier subpoenaed related to the "Fast and Furious" program.

The move will likely have no effect, except to further publicize Issa's dispute with Holder.  The principal type of criminal contempt proposed in the Resolution--in which the Committee refers the matter to the U.S. Attorney for D.C.--is unlikely to go anywhere, especially if Holder cites executive privilege (which he apparently has not yet done).  The other kind of contempt possibly suggested in the Resolution--inherent contempt, where Congress relies on its own constitutional power to detain a contemnor until that person complies--is long dormant (and unimaginable here).  The Resolution apparently does not pursue a third kind of contempt--one in which Congress seeks a civil judgment in federal court that the person is legally obligated to comply with a congressional subpoena.

Here's the language of the Resolution:

Resolved, That Eric H. Holder, Jr., Attorney General of the United States, shall be found to be in contempt of Congress for failure to comply with a congressional subpoena.

Resolved, That pursuant to 2 U.S.C. Secs. 192 and 194, the Speaker of the House of Representatives shall certify the report of the Committee on Oversight and Government Reform, detailing the refusal of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to produce documents to the Committee on Oversight and Government Reform as directed by subpoena, to the United States Attorney for the District of Columbia, to the end that Mr. Holder be proceeded against in the manner and form provided by law.

Resolved, That the Speaker of the House shall otherwise take all appropriate action to enforce the subpoena.

Here's from the Report's Executive Summary:

The Department of Justice has refused to comply with congressional subpoenas related to Operation Fast and Furious, an Administration initiative that allowed around two thousand firearms to fall into the hands of drug cartels and may have led to the death of a U.S. Border Patrol Agent.  The consequences of the lack of judgment that permitted such an operation to occur are tragic.

The Department's refusal to work with Congress to ensure that it has fully complied with the Committee's efforts to compel the production of documents and information related to this controversy is inexcusable and cannot stand.  Those responsible for allowing Fast and Furious to proceed and those who are preventing the truth about the operation from coming out must be held accountable for their actions.

Having exhausted all available options in obtaining compliance, the Chairman of the Oversight and Government Reform Committee recommends that Congress find the Attorney General in contempt for his failure to comply with the subpoena issued to him.

Committee Democrats issued a 13-page memo with dissenting views, concluding that going forward with Issa's contempt citation would be "an extreme and blatant abuse of the congressional contempt power that undermines the credibility of the Committee."

The Congressional Research Service recently issued a thorough report on Congress's contempt power.  You might take a look at the appendix, starting on page 62, which details the history of Congress's use of that power.

SDS

 

D.C. Circuit: No Bivens Claim for LOC Employee Fired for Speech

A sharply divided three-judge panel of the D.C. Circuit ruled last week in Davis v. Billington that a Library of Congress employee did not have a Bivens claim against his supervisor and the Librarian of Congress for firing him for his speech.  The court ruled that special factors counselled against extending Bivens, because Congress did "not inadvertently" omit damage remedies for employees in the plaintiff's position--employees of the Library of Congress, not the executive branch--in the comprehensive Civil Service Reform Act.

The case arose after Morris Davis, the Congressional Research Service Assistant Director of the Foreign Affairs, Defense, and Trade Division, penned some high-profile opinion pieces critical of the Obama administration for choosing to prosecute some Guantanamo detainees in federal courts and others in military commissions.  Davis was also critical of the Bush administration handling of Guantanamo detainees.

Davis had some unique familiarity with these issues.  He served as Chief Prosecutor of the military commissions at Guantanamo Bay until October 2007.

After the pieces came out, Daniel Mulhollen, Davis's supervisor, fired him.  Davis sued Mulhollen and Billington, the Librarian of Congress, seeking declaratory and injunctive relief, and for damages against Mulhollan for violation of his First and Fifth Amendment rights under Bivens.

The court ruled that special factors counselled against extending a Bivens remedy, because Congress, through the comprehensive remedial scheme in the CSRA, did "not inadvertently" omit damage remedies for civil service members, like Davis, outside the executive branch. 

Judge Rogers filed a lengthy and sharp dissent.  She said that Congress omitted civil service members outside the executive branch from the CSRA remedial scheme based on separation-of-powers principles.  That is, the legislative history of the CSRA shows that Congress didn't include legislative branch employees in the CSRA comprehensive remedial scheme because it didn't want the executive branch to have the power to adjudicate claims of legislative branch employees.  The history shows, moreover, that Congress didn't have that same concern with respect to judicial adjudication.  According to Judge Rogers, this all shows that Congress did not omit legislative branch employees becauase it wanted to leave them without a remedy.  On the contrary, Congress seems to have left open the possibility of a judicial remedy--a Bivens action.

SDS

First Circuit: DOMA Section 3 Unconstitutional

In today's unanimous panel opinion in Massachusetts v. HHS, consolidated with Gill v. Office of Personnel Management, the First Circuit upheld federal District Judge Tauro's companion opinions that section 3 of DOMA is unconstitutional. (April's oral argument can be heard here).

The First Circuit opined that the issue is difficult not only because of what it called the Justice Department's "about face" but because it

couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

The panel relied upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review. 

As to federalism, the panel noted that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture."  Although certainly the federal government does have an interest in marriage (given how many federal laws rely on the definition), nevertheless "Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."  

The First Circuit thus stops short of finding that DOMA is inconsistent with the Tenth Amendment, but deploys federalism to evaluate the government interests under equal protection.

The four interests expressed in the House Committee Report were

• (1) defending and nurturing the institution of traditional, heterosexual marriage;
• (2) defending traditional notions of morality;
• (3) protecting state sovereignty and democratic self-governance; and
• (4) preserving scarce government resources.

The First Circuit rejected all these interests as inadequate, including the preservation of government resources that it found to be factually dubious, and also rejected the "child rearing" and "temporary measure" rationales advanced in litigation, as not supported by the legislation. 

Thus, the panel concluded:

the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

Surely BLAG - - - the Bipartisan Legal Advisory Group of the United States House of Representatives, an organization defending DOMA funded by taxpayers - - - will petition for certiorari to the United States Supreme Court, although perhaps first for en banc review.

RR

Court Says Detention Authority Violates First Amendment

Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech.  Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.

The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021.  This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit.  (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.)  But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA.  More on this below.

The ruling is the first against the controversial detention authority in the NDAA.  The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention.  The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary.  In short, according to the President, Section 1021 changed nothing.  As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."

Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.

A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech.  They said that Section 1021 was overbroad and vague in violation of the First Amendment.

Judge Forrest agreed.  In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.  

The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law.  The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable.  And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.

Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention.  The problem is that a person could violate Section 1021 without intending to, even without knowing.  This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.  

The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war.  But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government."  Op. at 55-56.  The plaintiffs had the better of the case on "substantially," "direct," and "support."

If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.

SDS

D.C. Circuit Upholds Key Provisions in Voting Rights Act

A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act.  The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional.  We covered the case in the lower court here and here; those posts contain more thorough background.

The ruling tees up the case for Supreme Court review.  The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA.  It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder.  This case gives it a second crack, with the constitutional question unavoidably front-and-center.

When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit).  In particular: Do congressional findings adequately support Sections 5 and 4(b)?  If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.  

But there's another question to watch for: By what measure will the Court scrutinize congressional findings?  In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b).  This Court has suggested that it won't give much.

Congress had a thorough record when it reauthorized the VRA in 2006.  The question is whether it was thorough and precise enough for this Court.  Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.

In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case.  The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:

First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . .  Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."

Op. at 14.

In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006.  (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)

Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment.  This illustration summarizes the point:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?  A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . .  As to federal observers, Indiana appears clearly "better"--it received none . . . .  As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . .  This distinction in evaluating the different states' policies is rational?

Dissent, at 32.

SDS

D.C. Circuit Rules VRA Challenge Moot

The D.C. Circuit ruled today in LaRoque v. Holder that a plaintiff's challenge to the preclearance provision of Section 5 of the Voting Rights Act was moot after the Attorney General withdrew its objection to a referendum making local elections nonpartisan in Kinston, North Carolina, a covered jurisdiction.  We previously posted on the case here.

The ruling comes the same day as the same three-judge panel affirmed the constitutionality of Sections 5 and 4(b) of the VRA.  (Judge Williams dissented in that case.)

The court rejected the plaintiff's claims that the AG might again object to voting changes (that the objections are capable of repetition but evading review) and that a ruling that Section 5 is unconstitutional would make it easier for the plaintiff to ask North Carolina to nullify the last election (conducted as a pre-referendum partisan election) and give him a do-over.  

The ruling says nothing about the constitutionality of Section 5.  But that doesn't matter: The other case today, Shelby County, affirming the constitutionality of Section 5, is all but certainly heading to the Supreme Court.

SDS

Common Cause Sues to End the Filibuster

Common Cause led a group of plaintiffs today in filing suit against Senate officers to end the filibuster.  Common Cause, joined by four members of the House of Representatives and three private citizens, sued Senate President Joe Biden and the Secretary, Parliamentarian, and Sergeant-at-Arms of the U.S. Senate in the U.S. District Court for the District of Columbia for declaratory and injunctive relief in an effort to end the super-majority 60-vote requirement to end debate in Senate Rule XXII.

The filibuster is the bane of every Senate majority, especially in recent times, when nearly every piece of significant legislation, and much else, requires a 60-vote majority in the Senate.  Add secret holds, and the filibuster becomes a devilish and secretive way for the minority--and even just one anonymous Senator--to hold up legislation, nominations, and Senate business, without even stating why.  But the Senate itself isn't suited to undo the super-majority requirement, even if it could.  (That, as it turns out, could be quite a trick itself.)

Enter Common Cause.  It argues that a minority in the Senate has used the filibuster to hold up all manner of legislation, including (most importantly, for this suit), the DISCLOSE Act (to tighten electioneering disclosure requirements in the wake of Citizens United) and the DREAM Act (to create a path to U.S. citizenship for certain aliens).  It argues that the 60-vote requirement in Senate Rule XXII violates the default parliamentary majority-takes-all rule, the careful balance of powers in the legislative branch and between the three branches, and the power of the Senate itself to changes its own rules (because along with Rule V (which continues the Senate rules from Senate to Senate) Rule XXII seems to require that 3/5 of Senators vote to change Rule XXII).  In particular, Common Cause argues that the filibuster violates the Quorum Clause, the Presentment Clause, the power of the VP to break a Senate tie, the Advice and Consent Clause, and the equal representation of the states in the Senate--all of which in different ways assume majority rule.  It also argues that the filibuster is in tension with the eight constitutional exceptions to majority rule. 

The plaintiffs ask the court to excise just the italicized portion of Rule XXII and otherwise leave it unaltered:

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure . . . is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate . . . he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?"  And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting then said measure . . . shall be the unfinished business to the exclusion of all other business until disposed of.

There are obvious and significant justiciability issues with the suit.  Common Cause addresses some of them in the complaint and tries to cover its bases with the range of plaintiffs and alleged harms.  But still, justiciability will be a major barrier to getting a court to hear the case on the merits. 

At the very least, though, the case will help publicize the problem of misuse of the filibuster.  And with enough publicity, who knows?  Maybe the Senate will be inspired to find a political solution.

SDS

[Image: Common Cause's graphic version of the Senate's count of cloture votes.]

Ninth Circuit Rejects Veterans' Claims

The en banc Ninth Circuit today rejected veterans groups' claims against the VA over delays in the provision of mental health care and the adjudication of service-connected disability compensation claims.  The court ruled that it lacked jurisdiction over the groups' mental health care claims and disability benefits claims, and that while it had jurisdiction over the groups' due process challenges to regional office procedures, those challenges failed on the merits.

The ruling is based on a broad reading of the statutory restriction on federal court involvement in cases related to veterans benefits outside the Veterans Court and the Federal Circuit; it means that veterans and veteran groups won't be able to get judicial relief for anything related to veterans benefits in the Ninth Circuit.  While they can still file claims related to individual benefits decisions in the Veterans Court and the Federal Circuit (an appeal of a denial of benefits at the VA, e.g., or even an individual mandamus claim to get the VA moving), they apparently have no judicial remedy for claims like this, based on systemic delay.

The case, Veterans for Common Sense v. Shinseki, arises out of a complaint by two veterans groups that the VA delayed the provision of mental health care and the adjudication of service-connected disability claims of veterans.  The court ruled that it lacked jurisdiction, because Congress "expressly disqualified us from hearing cases related to VA benefits in Section 511(a), and . . . Congress has conferred exclusive jurisdiction over such claims to the Veterans Court and the Federal Circuit." 

Section 511(a) says that the VA

shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.

38 U.S.C. Sec. 511(a).  The court ruled that the groups' mental health care claims and disability benefits claims would require it to delve into "the circumstances of individual veterans and their requests for treatment, and determining whether the VA handled those request properly," thus intruding into an area that Congress reserved, under Section 511(a), to the VA.  Op. at 4850.  The court rejected the plaintiffs' argument that they challenged only average delays, not individual delays, and that the court could rule without violating Section 511(a).  The court said that this was a distinction without a difference.

In contrast, the court ruled that it possessed jurisdiction over the plaintiffs' challenges to VA regional office procedures, but, applying Mathews v. Eldridge, it rejected those challenges on the merits, emphasizing Congress's creation of a non-adversarial system of benefits administration.

Judge Schroeder dissented, arguing that the court erred in rejecting jurisdiction on the first two claims, writing that "the claims of systemic delay do not, in my view, require any review of the VA's actual benefits decisions."  Op. at 4868.

SDS

Women Sue Washington AG for Role in ACA Challenge

A group of Washington women filed suit last week in state court against Washington AG Rob McKenna for his role in the multi-state challenge to the federal Patient Protection and Affordable Care Act case now before the Supreme Court.  The plaintiffs in Mackey v. McKenna seek declaratory and injunctive relief, in particular, a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate.

The plaintiffs claim that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place.  Yet he joined the state in the multi-state suit against the entire ACA, allegedly capitulating to a majority of other state-plaintiffs, which voted to argue that the individual mandate was not severable, ensuring that the entire ACA would fall if the Supreme Court held the individual mandate unconstitutional.  The plaintiffs argue that McKenna's capitulation, and his failure to truthfully inform state citizens about the litigation, violated his professional duties to Washingtonians.

The plaintiffs argue that they stand to lose vital protections in the ACA related to women's health--access to preventive care, the elimination of a lifetime cap on benefits, expanded insurance coverage, and access to birth control--if the entire Act is overturned.

The plaintiffs argue that Washington law allows taxpayer standing, but they do not address the other obvious problems that (1) full relief--a corrective pleading by McKenna and declaration that he violated state professional responsibility standards--will have no effect on the case at the Supreme Court (because the Court can already treat the individual mandate as severable, or not) and (2) the Supreme Court will rule before the state court case runs its course. 

But this case is less about getting full relief in the form of a corrective pleading and more about holding McKenna accountable for his judgments and performance as the state's lawyer.  If Professor Robert Aronson (U. Washington) is right in his supporting affidavit (attached at the end of the complaint), McKenna's acts are a clear violation of his professional ethical duties to the state.

SDS

House Republicans Move Toward Contempt Citation Against AG Holder

The LA Times reports that Representative Darrell Issa, Chair of the House Committee on Oversight and Government Reform, has drafted a 48-page contempt-of-Congress citation against AG Eric Holder for withholding documents related to the Committee's investigation into "Fast and Furious." According to the story, the Speaker gave the go-ahead to move the citation forward.

We posted most recently on contempt of Congress citations in the Miers, Bolton, and Rove cases and the alleged politicization of the Justice Department in the Bush administration. Those posts, with links to resources, are here and here.

SDS

Ninth Circuit: Arizona Proof-of-Citizenship for Registration Unconstitutional

The en banc Ninth Circuit this week in Gonzalez v. Arizona overturned Arizona's requirement that prospective voters in Arizona provide proof of U.S. citizenship in order to register.  But the court also upheld the state's requirement that registered voters show ID to cast a ballot at the polls.

The case is the latest ruling on Arizona's many attempts to clamp down on illegal immigration--just a week before the Supreme Court will hear arguments on Wednesday on S.B. 1070.  It's also the latest ruling on the many attempts in the states to tighten registration and voting requirements.  The case suggests that states may face difficulties in tightening registration requirements for federal elections, even if they have flexibility in enacting voter ID laws at the polls.  (The Supreme Court rejected a Fourteenth Amendment Equal Protection challenge to Indiana's voter ID law in 2008 in Crawford v. Marion County.  Under Crawford, voter ID laws are subject merely to a balancing test--at least unless plaintiffs can show that a particular voter ID law creates a much more significant barrier to voting than the plaintiffs demonstrated in Crawford.)

The Ninth Circuit ruled that Arizona's registration provision conflicted with the National Voter Registration Act of 1993, and that the NVRA superceded Arizona's registration provision.  The NVRA prescribes three ways that states can register voters for federal elections: application with an application for a driver's license; mail application using a federal form designed by the Eelection Assistance Commission; and in-person registration.  The NVRA also requires states to create a combined driver's license and voter registration form, and it delegates to the EAC the creation of a nationally uniform Federal Form for mail and in-person registration for federal elections.  (The key language: the NVRA says that states must "accept and use" the Federal Form developed by the EAC.)  States may (but are not required to) create their own forms for federal elections, so long as those forms meet NVRA criteria.  (State forms do not replace the Federal Form; the Federal Form is still required.)

The NVRA says that the Federal Form "may require only such identifying information . . . as is necessary to enable the [state] to assess the eligibility of the applicant."  It also says that the Federal Form must include an "attestation that the applicant meets [citizenship requirements]."  Under the NVRA, the EAC created a Federal Form that asks "Are you a ctiizen of the United States of America?"  The Form says that an applicant should not complete the form if he or she answered no.

While neither the NVRA nor the EAC Federal Form requires proof of citizenship (beyond the attestation), Arizona's Proposition 200 does.  It says that "[t]he county recorder shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship."  (Arizona's requirement applies to both the Federal Form and to the state form.  The EAC earlier rejected Arizona's proposal to modify the Federal Form consistent with Prop 200.)  Arizona's Prop 200 thus goes beyond and adds to the requirements of the NVRA and the EAC Federal Form.

The court ruled that the additional ID requirement in Arizona's Prop 200 conflicted with the NVRA and the EAC Federal Form.  It sais that the NVRA doesn't give states room to add to the Federal Form--exactly what Prop 200 sought to do.  And because Congress enacted the NVRA under the Elections Clause, the NVRA trumps Arizona's law.  The Elections Clause says that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  The court ruled that a valid enactment under the Elections Clause, like the NVRA, preempts conflicting state law, with no presumption against preemption (as in more traditional preemption cases, under the Supremacy Clause, because the Elections Clause does not require the same kind of balancing of federalism concerns). 

But while the court ruled the registration provision unconstitutional, it upheld the voter ID provision against challenges under Section 2 of the Voting Rights Act, the 24th Amendment, and the Fourteenth Amendment Equal Protection Clause.  As to the Section 2 challenge, the court said that the plaintiffs failed to produce evidence showing that "Latinos' ability or inability to obtain or possess identification for voting purposes . . . resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice."  As to the constitutional challenges, the court applied a Crawford-like balancing analysis and upheld the law.

Chief Judge Kozinski wrote in concurrence that "this is a difficult and perplexing case," and that the "statutory language we must apply is readily susceptible to the interpretation of the majority, but also that of the dissent."  He concurred in full, even though he dissented in the prior three-judge panel.  (He explains why on page 4196.)

Judge Berzon, joined by Judge Murguia, concurred but suggested that the plaintiffs could make out a Section 2 case against voter ID, but that under the current record they didn't.

Judge Pregerson concurred and wrote that the plaintiffs did make out a Section 2 case against voter ID.

Judge Rawlinson, joined by Judge Smith, concurred on voter ID, but dissented on the registration requirement.

SDS

Court Limits Torture Act to Natural Persons

A unanimous Supreme Court ruled yesterday in Mohamad v. Palestinian Authority that the Torture Victim Protection Act applies only to natural persons, not organizations.  The ruling means that torture victims cannot bring claims under the TVPA against anyone (or anything) other than an individual, natural person--and thus ensures that plaintiffs can use the TVPA in only a very narrow category of cases.  That's because torture victims often cannot identify their individual torturers, although they can identify the organization with which their torturers are affiliated.

Azzam Rahim's relatives filed this claim under the TVPA against the Palestinian Authority, alleging that the Palestinian Authority imprisoned, tortured, and killed Rahim.

Justice Sotomayor wrote for the Court that the term "individual" in the TVPA meant only a natural person, not an organization like the Palestinian Authority.  The TVPA says,

An individual who, under actual or apparent authority, or color of law, of any foreign nation --

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.

The Court examined the plain language of the statute and other similar statutory provisions that distinguish between an "individual" (as a natural person) and an organizational entity of some kind and concluded that "individual" means only a natural person.  The Court also rejected the plaintiffs' arguments based on legislative history and the need for a judicial remedy.

The ruling limits TVPA remedies for torture victims, because victims often cannot identify their individual torturers (although they can identify the organization with which their torturers are affiliated).  (The Court cited evidence from the legislative history that suggests Congress intended that the Act apply only narrowly, in few cases.)

Congress, of course, can change the TVPA to cover organizations and corporations.  As the Court noted, "[t]here are no doubt valid arguments for such an extension."

This case is related to another torture case now before the Court, Kiobel v. Royal Dutch Petroleum.  In that case, the plaintiffs filed a claim under the Alien Tort Statute (not the TVPA) against a corporation for human rights abuses in another country.  The original issue was whether the ATS applied against corporations--an issue similar to the question in Mohamad, but under a different statute.  The Court, however, ordered reargument next term on the question whether the ATS applies to actions outside the United States.  The new question adds another layer to the case and provides another basis on which the Court could deny relief to the plaintiffs.  If so, the Court will have interpreted two important human-rights-protecting statutes narrowly and thus significantly limited judicial remedies for torture victims in U.S. courts. 

Again, though: Congress could change all this.

SDS

Elhauge: The Founders Supported Health Insurance Mandates

Einer Elhauge (Harvard) writes in The New Republic that the Founders supported health insurance mandates in his piece If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?--and that therefore so should the Court.

According to Elhauge, the Founders supported health insurance mandates twice.  Here's what he has to say:

In 1790, the very first Congress--which incidentally included 20 framers--passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen.  This law was then signed by another framer: President George Washington.  That's right, the father of our country had no difficulty imposing a health insurance mandate. . . .

[L]ater, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays.  And you know what this Congress, with five framers serving in it, did?  It enacted a federal law requiring the seamen to buy hospital insurance for themselves.  That's right, Congress enacted an individual mandate requiring the purchase of health insurance.  And this act was signed by another founder, President John Adams.

Moreover, Elhauge argues that because the founders approved of health insurance mandates, they must certainly be proper (as in Necessary and Proper) in the PPACA.

SDS

Convening Authority Refers KSM Charges to Military Commission

The Convening Authority today referred terrorism charges against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi to a capital military commission.  Capital charges include conspiracy, attacking civilians, murder in violation of the law of war, hijacking and aircraft, and terrorism.

We last posted on the case--and separation-of-powers issues in the congressional restriction on trying in a regular Article III court--here.  (Recall that the administration originally sought to try these individuals in regular Article III courts; Congress restricted the administration's ability to do that; the administration balked, but ultimately decided to try them by military commission.)

The Office of Military Commission web-site, including electronic case files, is here.

SDS

President Obama Comments on Health Care Arguments at Court

In case you missed it, here are President Obama's full comments on the ACA litigation in response to a reporter's question yesterday at a joint press conference, with President Calderon of Mexico and Prime Minister Harper of Canada:

With respect to health care, I'm actually--continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close call.

I think it's important--because I watched some of the commentary last week--to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it. There are tends of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.

Millions of senior are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that's just the part that's already been implemented. That doesn't even speak to the 30 million people who stand to gain coverage once it's fully implemented in 2014.

And I think it's important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.

Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint--that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. . . .

As I said, we are confident that this will be over--that this will be upheld. I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.

SDS

Court Equally Skeptical (or More) on Medicaid Expansion

The Supreme Court yesterday seemed just as skeptical--and maybe even more so--of the Medicaid expansion as it was of the universal coverage, or individual mandate, on Tuesday.  The line-up was similar, with Justices Ginsburg, Breyer, Sotomayor, and Kagan appearing to favor the government, and Justices Scalia and Alito leaning against.  (Justice Thomas was again silent, but his opposition to Medicaid expansion is all but certain.)  The difference in yesterday's argument: Chief Justice Roberts and Justice Kennedy seemed even more strongly against Medicaid expansion than against the individual mandate.

The core issue in the case, of course, was coercion: Did the federal government coerce the states by conditions a states' entire pot of Medicaid funding on its acceptance of the expansion?

Chief Justice Roberts made some very strong statements against the government's position that expansion isn't coercion, especially worrying about federalism and "intrusion on the sovereign interests of the State."  Transcript p. 59; see also Transcript p. 34.  This latter question, the one on page 34, also suggests that the federal government "having attached the . . . strings, [states] shouldn't be surprised if the Federal Government isn't going to start pulling them."  On balance, though, the Chief Justice seemed to lean against expansion.

Justice Kennedy seemed worried most about accountability--how citizens could sort out who to blame if they didn't like the policy.  He recognized that there's no "workable" test based on accountability (p. 64), but he also seemed to want to find a place for accountability in the analysis.  He was also concerned about "practical coercion" (my phrase), discussed immediately below.

In the end, there seemed one predominant theme among those who appeared to lean against the expansion: If the government can't conceive of a state declining to participate in the expansion--because the money's too sweet, because the program's too good, or because the individual mandate would have a hard time working without it--it seems like coercion.  This kind of plain-spoken, practical coercion might just drive the case. 

Others apparently favorable to the expansion argued that this practical coercion must mean that a program can be unconstitutionally coercive only because it's too good--a plainly absurd conclusion, and therefore not a reason to overturn the expansion.

Several other themes emerged:

Complete Funding.  The federal government pays the lion's share of the expansion in the first few years--a point made early by Justice Kagan.  To those favoring the government, this makes it look like a pure federal gift to the states for the purpose of expanding Medicaid.  But Paul Clement, representing the states, argued that it was both the size of the Medicaid program and the expansion that makes this coercion: because of Medicaid's size, state's can't afford to lose it; because of the generosity of the expansion, states can't say no to it. 

Related: There was concern among those apparently leaning against the expansion about why states could stand to lose all their Medicaid funding just because they don't agree to take funding for this incremental expansion.  This issue relates to executive discretion, discussed below.

Related:  Chief Justice Roberts seemed especially concerned that the federal government could later decrease the amount of its participation, after leading the states on with this nearly-completely-funded expansion, and leave states in an even more precarious situation--even more coercive.

Complete Overhaul.  Justice Sotomayor asked if the federal government could simply scrap the whole program and start all over, why it couldn't add this incremental expansion.  Clement said that nobody has a problem with certain existing Medicaid programs, and so it makes no sense to condition the whole program, including existing programs, on a state's willingness to sign on to the incremental expansion.

Politics.  The politics played a minor role, but were there.  Justice Ginsburg asked about the other half of states that may favor the expansion, and Justice Scalia helped point out that the states in this case--those opposing expansion--are headed by Republicans.  In Clement's words: "There is a correlation." P. 21.

Spending Power.  Clement tried to distinguish between congressional use of the spending power for objectives included in other portions of Article I, Section 8, and use of the spending power for ends outside of its Section 8 powers.  It's not clear whether this position has enough traction to work its way into the Court's analysis, but it does revive a very old (but now well settled) debate over the scope of congressional spending power: Congressional spending power is most certainly not cabined by what it can do under other Article I, Section 8 powers.  Clement's position seems to question that, even if only on the margins.

Taxes and Citizenship.  Clement argued that the federal government is encroaching on state authority by taxing state citizens for a benefit that they don't want.  The argument confuses state and federal citizenship, and didn't seem to get any traction with the Court.  But Clement's related argument--that federal taxes to support Medicaid expansion crowd out states' ability to tax their citizens for other purposes--did get some attention among opponents of the expansion.

Executive Discretion.  Justice Breyer raised the point that the Secretary is bound by the APA in revoking all Medicaid funds for a state that declines to participate in the expansion, and that such a decision would be subject to rationality, or the arbitrary and capricious test.  This point gained traction as the argument moved forward, but the Justices seemed to divide over the implications: Justice Breyer argued that this means that the Secretary isn't unbound in revoking all funds, and others pointed to the history of the Secretary's modest exercise of this authority; opponents of the expansion argued that the authority to revoke all funds is still there in the statute.  SG Verrilli, of course, couldn't give assurances about how the Secretary would use the discretion, but suggested that the Secretary wouldn't revoke all Medicaid funding.

Accountability.  Justice Kennedy raised the point about accountability: How can citizens understand the lines of accountability for a program that's so strongly encouraged by the federal government?  Accountability is surely a consideration, but it's not clear how much, if at all, it'll turn this case.  Justice Kennedy also said that any test based on accountability is "unworkable," but he seemed to search for a way to consider accountability within the coercion framework.

Practical Coercion.  Again, Chief Justice Roberts, Justice Scalia, Justice Alito, and even Justice Kennedy at one point all pointed out, in only slightly different ways, that if the government can't conceive of a state saying no--because of the size of the program, or because how expansion fits with the individual mandate, or because Congress knew that states liked Medicaid so much and just assumed that all states would come on board--then that's coercion.

SG Verrilli wrapped up his argument with an appeal to liberty--the liberty of those who would be covered by Medicaid expansion to receive funded medical care.  This was refreshing, but probably not anything that would persuade those who oppose the expansion based on the sovereignty of the states and federalism.

This case, like the universal coverage case, will likely turn on Chief Justice Roberts or Justice Kennedy or both.  But here both seemed even more opposed to expansion than they were to universal coverage.

SDS