Monday, November 26, 2012
The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit. The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.
Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim. The Supreme Court declined to review that case, Liberty University v. Geithner. But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.
The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others). (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.)
The district court ruled against the plaintiffs on all counts and dismissed the case. The Fourth Circuit dismissed the case under the AIA and didn't reach the merits.
The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause. Thus after NFIB these issues appear to remain open on remand:
- Whether the mandates violate the Religion Clauses or the RFRA;
- Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
- Whether the mandates violate equal protection;
- Whether the mandate violates free speech and associational rights.
As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).
As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.
If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.
But then again, that's what many of us said about NFIB.
November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Friday, November 9, 2012
The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006. The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws. The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states. The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality. Thus Section 5 survived Northwest Austin--but just barely.
The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage. Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws. The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null. But a ruling overturning only Section 4(b) could leave Section 5 in place. Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).
The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization. But it seems highly unlikely. Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b). Here's the QP:
Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.
The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns. Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.
The Court took no action on another Section 5 challenge, Nix. Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.
November 9, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, June 25, 2012
The Supreme Court issued its much-anticipated opinion in Arizona v. United States on the constitutionality of controversial state immigration statute SB 1070. The over all issue, recall, is whether the state law is preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.
The majority - - - Justices Kennedy, Roberts, Ginsburg, Breyer, and Sotomayor - - - affirmed in part and reversed in part the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of SB 1070.
The Courthad granted the petition for writ of certiorari on four provisions:
- Section 2(B): requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully;
- Section 3: criminalizes the failure to carry an “alien registration document;'"
- Section 5(C): criminalizes undocumented immigrants applying for employment or being employed;
- Section 6: authorizes warrantless arrests if based upon probable cause that a person has committed a deportable crime.
The majority held that Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law, but that the controversial 2(B) was not.
On Section 3, the Court applied complete field preemption, holding that even complementary state regulation unconstitutionally intrudes.
On Section 5(C) and 6, the Court held that the state provisions operated as obstacles to the federal statutory scheme.
Upholding Section 2, the Court essentially held that without state courts having an opportunity to further construe the provision, the record was too incomplete to determine whether or not the provision conflicted with federal law.
Justices Scalia, Thomas, and Alito each wrote separate dissents. Justice Elana Kagan did not participate.
The Opinion of the Court is relatively brief at 25 pages. For an opinion by Justice Kennedy (dare I say), it is unusually well-structured. The discussion of pre-emption principles is setting out express preemption, then pervasive field preemption and conflict (obstacle) preemption, including the Court's most recent preemption opinion, Whiting, which it will later distinguish (and which was joked about as decisively precedential by Justice Roberts at oral argument, who interestingly joins Kennedy's opinion).
Then it considers each provision, providing some but not overwhelming detail, regarding the conflict. Most controversially (and lengthily), the Court reversed the Ninth Circuit’s conclusion that Section 2(B) was preempted, focusing both on the mandatory status checks (– colloquially known as the “show me your papers” provision – ) and the possibility of prolonged detention. However, the majority stated that Section 2(b) could be read to avoid the concerns of conflict and offered some hypos:
To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. [citations omitted].
To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.
For some, these "could be read" passages suggest that only upon a narrow construction would Section 2(B) be upheld.
Not surprisingly dissenting, Justice Scalia would have upheld SB1070, and stressed the historical precedent that would allow states as sovereigns to exclude all aliens from their states. His use of history here will most likely be criticized by some legal historians of the Early Republic. In a statement sure to provoke more controversy, he referred to President Obama’s statement regarding young non-citizens, saying “The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.” He closed by repeating Paul Clement’s claim that “Arizona bears the brunt of the country’s illegal immigration problem.”
Thomas' briefly opined that even "assuming the existence of some tension" between SB1070 and the federal scheme, it did not merit preemption. Alito's much longer opinion agreed with the Court that 2(B) was not preempted, and interestingly agreed that Section 3 (colloquially known as the carry your papers provision) was preempted. He "part[ed] ways" on §5(C) and §6, arguing that Congress was not sufficiently clear on its desire to preempt a provision regarding employment and that §6 "adds virtually nothing to the authority that Arizona law enforcement officers already exercise."
Thursday, May 31, 2012
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.
Friday, May 4, 2012
Last June, in an unanimous opinion in Bond v. United States, the United States Supreme Court reversed the Third Circuit and found that Carol Anne Bond had standing to argue that the statute exceeded Congressional power and was inconsistent with the Tenth Amendment.
In an opinion today on remand, the Third Circuit reached the merits and again ruled against Bond. Recall that Bond was convicted for a violation of 18 U.S.C. § 229(a), the Chemical Weapons Convention Implementation Act, enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
Bond urged the Third Circuit to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution." Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation."
The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." Bond did argue that the Act exceeded the Convention, but the panel found this argument without merit. However, the panel did remark that Bond's prosecution seems a questionable exercise of prosecutorial discretion," stating in footnote 20:
The decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse's revenge on her rival is, to be polite, a puzzling use of the federal government's power.
Concurring, Judge Rendell also remarked on the odd "fact pattern":
No one would question a prosecution under the Act if the defendant were a deranged person who scattered potassium dichromate and 10-chloro-10H-phenoxarsine, the chemicals which Ms. Bond used, on the seats of the New York subway cars. While that defendant could be punished under state law, applying the Act there would not offend our sensibilities.
But he added, "The judgment call to prosecute Ms. Bond under a chemical weapons statute rather than allowing state authorities to process the case is one that we question. But we see that every day in drug cases. Perhaps lured by the perception of easier convictions and tougher sentences, prosecutors opt to proceed federally."
Obviously, however, this "puzzling" or pragmatic use of federal law has cost the federal government much time, money, and energy in litigating this case.
Judge Ambro, however, was not so worried about the prosecution of Bond, but wrote separately "to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." This "most important sentence in this most important case about the constitutional law of foreign affairs" can be read as providing a "blank check" to Congress.
[image: colored chemicals via]
Wednesday, April 4, 2012
On appeal from two opinions from Federal District Judge Tauro holding Section 3 of DOMA unconstitutional, the First Circuit heard arguments today in Commonwealth of Massachusetts v. United States Department of Health and Human Services, and Gill v. Office of Personnel Management.
A partial audio recording of the argument is available here (the first 18 minutes is missing).
Arguing to reverse Judge Tauro's opinions and defending DOMA was BLAG - the Bipartisan Legal Advisory Group of the House of Representatives - who took up the case when the Obama DOJ decided that DOMA section 3 violates the equal protection component of the due process clause of the Fifth Amendment.
The equal protection arguments are central, including the level of scrutiny that should apply to the category of "sexual orientation," what government interests should be considered (the ones at the time of passage or the ones offered in the present litigation), and the possibility of animus, especially given the name of the act.
In addition to equal protection, the Tenth Amendment also figured prominently in the arguments. This has caused at least one commentator to note that Paul Clement's argument on behalf of BLAG was exactly the opposite of his argument last week that the Affordable Care Act is unconstitutional. Moreover, while DOMA and the anti-immigration initiative, SB1070, in Arizona v. US are certainly reconciliable with regard to the federalism issue, Clement's argument on behalf of Arizona before the United States Supreme Court later this month will most certainly contradict his DOMA stance.
Meanwhile, Immigration Equality has filed a complaint in the Eastern District of New York arguing that DOMA section 3 is unconstitutional on the basis of equal protection regarding both sexual orientation and sex, and should not be enforced in the immigration context.
As for the DOMA argument in the First Circuit, there is a suggestion that the case should go to the en banc court. However, for now the case is before Judges Lynch, Torruella, and Boudin, pending a panel decision.
Thursday, March 29, 2012
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.
Thursday, December 15, 2011
Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.
In his Presidential Proclamation last week, Obama stated:
On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.
Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.
Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.
Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."
The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights. Instead, they concerned Congress itself:
Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The latter became the 27th Amendment, ratified more than two centuries later in 1992.
- Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
- Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
- Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
- Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10. The 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.
[image from National Archives via]
December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 7, 2011
Chief Judge Royce C. Lamberth (D.D.C.) ruled on Monday in Gordon v. Holder that the tax requirement in the federal Prevent All Cigarette Trafficking Act, or PACT, likely violates due process, but not the Tenth Amendment. Judge Lamberth also ruled that the PACT's ban on mailing cigarettes through the U.S. mail does not violate equal protection or due process.
Plaintiff Gordon owns and runs a cigarette retail business. He previously took orders by mail and through the internet; since 2010, he takes only phone orders and walk-ins. He challenged two provisions of the PACT: its ban on mailing cigarettes through the U.S. mail; and its requirement that remote cigarette sellers pay applicable state and local sales taxes in advance.
Judge Lamberth ruled that Gordon's claim that the tax provision violates due process is likely to succeed. Judge Lamberth concluded that Gordon didn't have sufficient contacts with some states where he sold cigarettes to satisfy the "minimum connection" test in Quill Corp. v. North Dakota (and borrowed from International Shoe Co. v. Washington). Without the minimum connection, the tax provision likely violates due process.
But Judge Lamberth rejected Gordon's other claims. Judge Lamberth wrote that the PACT's ban on sales of cigarettes through the U.S. mail satisifed rational basis review, and that the PACT's tax provision didn't commandeer states or their officers. (Nothing in PACT compels states to adopt or to change their taxes. Instead, the PACT simply compels cigarette retailers to comply with applicable state taxes.)
Judge Lamberth thus issued a preliminary injunction against the tax provision on due process grounds, but denied a preliminary injunction on Gordon's other claims.
December 7, 2011 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Thursday, October 27, 2011
DOMA - - - the Defense of Marriage Act - - - already suffering from legislative efforts at repeal and seriously questionable constitutional status, including the Obama DOJ's decision not to defend its constitutionality, has been challenged again.
In a Complaint filed today, the Servicemembers Legal Defense Network representing several plaintiffs, challenged the constitutionality of DOMA in conjunction with several other statutes that govern benefits for military servicemembers. The Complaint was filed in the United States District Court for the District of Massachusetts, the same district in which Judge Tauro found DOMA unconstitutional in companion cases in July 2010.
Paragraph 67 of the Complaint distills the argument:
The current military family benefits regimes of Title 10, Title 32 and Title 38, particularly as modified by DOMA, fail to address the modern military. These laws were crafted at a time when gays and lesbians were precluded from openly serving in the military, and when same-sex marriages were not legal in the United States. While Congress may have assumed that Title 10, Title 32 and Title 38 effectively covered all military spouses in the past, that is not the current reality. The military is a reflection of our society as a whole. Now that same-sex marriages are legal, and gays and lesbians can serve openly in the military, service members -- such as the Plaintiffs -- with same-sex spouses do serve in the ranks. To maintain the uniformity of benefits that Congress believed it was creating in Title 10, Title 32 and Title 38, the definition of "spouse" must include these same-sex spouses as well.
The Constitutional grounds include Equal Protection, the Tenth Amendment, the fundamental constitutional right to marry (without a specific constitutional text), and Bill of Attainder.
Most unique is the Bill of Attainder argument, based on Article I, Section 9 of the United States Constitution which states that "No Bill of Attainder or ex post facto Law shall be passed." The Complaint alleges that the "Bill of Attainder clause prohibits as unconstitutional any law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." The argument is that as a result of DOMA's application to federal military benefits,
the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder.
The defense of DOMA is expensive: the original contract awarded by House Speaker John Boehner to Bush-era Solicitor General Paul Clement and capped at $500,000 was reportedly raised to three times that amount - - - $1.5 million dollars - - - earlier this month. This newest lawsuit may occasion even higher costs.
Saturday, October 22, 2011
United States District Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, dismissed the counterclaims filed by Arizona and Governor Jan Brewer in a 22 page Order late Friday.
Arizona's Count One, failure and refusal to achieve and maintain “operational control” of the Arizona-Mexico borde, Count Three, abdication of statutory responsibilities (enforcement of the federal immigration laws), and Count Four, declaratory relief regarding State Criminal Alien Assistance Program (“SCAAP”) reimbursement obligations were each denominated as "statutory claims."
The constitutional counterclaims - - - Count One, the failure and refusal to protect Arizona from invasion and domestic violence under Article IV, Section 4 and Count Five, declaratory relief under the Tenth Amendment - - - were analyzed as subject to issue preclusion given Bolton's previous order, but the Judge also further considered the claims. As to the "invasion and domestic violence" counterclaim, Judge Bolton found that the claim was nonjusticiable because it was a political question and cited the "six factors" from Baker v. Carr (1962):
 a textually demonstrable constitutional commitment of the issue to a coordinate political department;
 a lack of judicially discoverable and manageable standards for resolving it;
 the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
 the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
 an unusual need for unquestioning adherence to a political decision already made;
 the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Bolton emphasized the lack of "judicially discoverable and manageable standards" for determining what constituted an invasion and domestic violence.
Regarding the Tenth Amendment counterclaim, Judge Bolton found that Arizona was not being "comandeered" :
Arizona does not point to any federal immigration policy that mandates or compels
Arizona to take any action. The complained of expenditures arise entirely from Arizona’s
own policy choices and independent constitutional obligations and are not incurred as a result
of any federal mandate. These state costs do not give rise to a claim under the Tenth
While the ruling was not unexpected, it further focuses attention on the petition for writ of certiorari filed by Arizona and Jan Brewer, seeking review of the Ninth Circuit opinion which upheld Judge Bolton's preliminary injunction against SB1070.
Wednesday, September 28, 2011
Three parties--two sets of plaintiffs and the U.S. government--filed petitions today asking the Supreme Court to review the Eleventh Circuit ruling last month in State of Florida v. HHS striking down aspects of the Affordable Care Act. In seeking Court review of the three-judge panel decision, the parties are bypassing en banc review and taking the case directly to the Court.
Recall that the Eleventh Circuit ruled the so-called individual mandate unconstitutional, but also ruled it severable from the rest of the ACA. In particular, the court ruled that the individual mandate exceeded congressional authority under both the Commerce Clause and the Taxing Clause; that the individual mandate was severable from the rest of the ACA; and that Medicaid expansion did not unduly coerce the states and thus exceed congressional authority under the Spending Clause. The ruling gave both sides plenty to appeal.
And the petitions for cert. filed today reflect it. Thus the National Association of Independent Business and two private individuals, all plaintiffs in the case, took on the Eleventh Circuit's ruling on severability. (Recall that the district court ruled the individual mandate non-severable, in part because the government argued that it was an essential part of the overall ACA. And becuase it ruled that Congress lacked authority to enact the individual mandate, the district court also struck down the entire ACA. The Eleventh Circuit reversed.) These petitioners also say that the Eleventh Circuit's case is a better vehicle with which to evaluate the ACA, because it involves all the issues, but none of the problems, of the cases out of the other circuits. Thus, they say that the Sixth Circuit ruling in Thomas More, upholding the individual mandate, includes a contested standing issue and failed to address severability of the individual mandate (because the parties didn't argue it); the Fourth Circuit in Liberty University ruled that the plaintiffs' case was barred by the Anti-Injunction Act, an erroneous and now "irrelevant" ruling, in their judgment.
The state plaintiffs in the case took on the Eleventh Circuit's ruling on the Tenth Amendment and federalism. They argue that the Eleventh Circuit erred in ruling that Medicaid expansion in the ACA isn't unduly coercive and that the Supreme Court should resolve whether the so-called employer mandate provisions are constitutional as applied to the states.
Finally, the government argued that Congress had authority to enact the individual mandate under the Commerce Clause and, alternatively, the Taxing Clause. It also asks the Court to address whether the Anti-Injunction Act bars the plaintiffs' suit.
The petitions today make it all the more likely that the Court will hear a challenge to the ACA this Term. And this case seems the most likely vehicle, for all the reasons argued by the NFIB: This case puts it all before the Court--Commerce Clause, Taxing Clause, severability, Tenth Amendment, federalism, and the AIA. Both sides want a ruling on the whole thing, and this is the right case.
[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]
September 28, 2011 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Spending Clause, Supreme Court (US), Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Sunday, August 7, 2011
SCOTUSblog is hosting an on-line symposium on the constitutionality of the Affordable Care Act. From the symposium description:
Last week the Thomas More Law Center, a Christian legal group, filed a petition for certiorari in which it asked the Court to review a Sixth Circuit decision, which rejected the group's claim that a provision of the Patient Protection and Affordable Care Act requiring all Americans to purchase health insurance by 2014 is unconstitutional. With similar challenges currently pending in the Fourth and Eleventh Circuits, it seems likely that the Court will take up the constitutionality of the Act at some point in the future--perhaps even during the upcoming Term. During the next two weeks, SCOTUSblog will host an online symposium on the Act and the Court: when and whether the Court is likely to review the Act, and how it might rule if it does.
Posts so far are here; here's a list of contributors:
- Jonathan Adler, Case Western Reserve University School of Law
- Cory Andrews, Washington Legal Foundation
- Erwin Chemerinsky, University of California – Irvine School of Law
- Richard Epstein, University of Chicago Law School
- Charles Fried, Harvard Law School
- Abbe R. Gluck and Gillian Metzger, Columbia Law School
- Mark Hall, Wake Forest University School of Law
- Dawn Johnsen, Indiana University Maurer School of Law
- Bradley Joondeph, Santa Clara University School of Law
- Orin Kerr, The George Washington University Law School
- David Kopel, Independence Institute
- John Kroger, Attorney General of Oregon
- Robert Levy, Cato Institute
- Stephen Presser, Northwestern University
- Elizabeth Price Foley, Florida International University College of Law
- David B. Rivkin and Lee A. Casey, Baker Hostetler
- Robert Schapiro, Emory University School of Law
- Steven Schwinn, John Marshall Law School
- Ilya Shapiro, Cato Institute
- Ilya Somin, George Mason University School of Law
- Laurence Tribe, Harvard Law School
- Adam Winkler, University of California Los Angeles School of Law
- Elizabeth Wydra, Constitutional Accountability Center
Tuesday, July 26, 2011
Last November, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada. Windor seeks a refund of estate taxes paid because the marriage was not recognized by the federal government and argues that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection.
Today, the Attorney General of New York filed an amicus brief supporting Windsor. With same-sex marriage now legal in New York (although a challenge was filed yesterday), the state has a substantial interest in the effect of DOMA. The state joins Windor's equal protection arguments, but also raises a Tenth Amendment argument:
Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern.
The brief then cites the Massachusetts DOMA distict court opinion, Massachusetts v. US, presently on appeal.
While the Obama Administration is not defending DOMA - - - itself having decided DOMA is unconstitutional - - - it is noteworthy that at this point, New York is only filing an amicus brief and not filing a complaint of its own unlike Massachusetts.
The New York Attorney General's brief is disconcerting in one respect. It argues,
Because New York has consistently expressed and implemented its commitment to equal treatment for same-sex couples, New York has a strong interest in ensuring that the “protections, responsibilities, rights, obligations, and benefits,” ch. 95, § 2, 2011 N.Y. Laws at __, accorded to them under federal law by virtue of marriage are equal to those accorded to different-sex married couples.
Yet some might argue that New York's "commitment" to equality for same-sex couples has been less than total. The state's highest court, the New York Court of Appeals, reversed lower courts and rejected a claim that limiting marriage to opposite sex couples was unconstitutional in Hernandez v. Robles in 2006. Hernandez v. Robles applied rational basis scrutiny and in much criticized passage reasoned that the legislature could "rationally decide that, for the welfare of children, it is more important to promote stability" and that because heterosexual relationships lead to children and that because "such relationships are all too often casual or temporary," the legislature "could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born" and it could thus " choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other." The court reasoned that this inducement rationale "does not apply with comparable force to same-sex couples" who can become "parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse." Thus,
The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
Perhaps it is understandable why the New York Attorney General would not want to mention Hernandez v. Robles - - - the brief does not cite it - - - but it does belie New York's "consistent" support for same-sex marriage.
Saturday, July 16, 2011
Plaintiffs in this and other cases, and other opponents in the public debates, have all made novel Tenth Amendment and federalism arguments as part of their challenges to the individual mandate. These have not received the same attention afforded to the Commerce Clause argument, but they are every bit as important, and they are every bit as novel—without basis in text, history, or jurisprudence. The cases challenging the individual mandate have thus invited the courts to give new shape to the Tenth Amendment and federalism principles—a shape that reflects the opponents' radical and ahistorical view that the Constitution enshrines libertarianism and creates a government of limited and constrained powers. The Sixth Circuit, by largely not addressing these claims, properly declined this invitation.
Thursday, June 16, 2011
In a unanimous opinion the Court reversed the Third Circuit and held that a defendant has standing to raise a Tenth Amendment claim.
The case involves the criminal conviction of Carol Anne Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
As we noted in our discussion of the oral argument, this is no ordinary criminal appeal is evinced by the appearance of Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.” If this is a case in which even the United States - - - who after all, prosecuted Ms. Bond - - - agrees with the defendant, then why is this case in the United States Supreme Court? The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute and the split amongst the circuits of the issue. The third Circuit stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”
The standing rules at issue - - - the prudential rules rather than the Article III standing rules - - - are distilled in a single sentence from Tennessee Elec. Power Co. v. TVA, 306 U. S. 118 (1939): "“As we have seen there is no objection to the Authority’s operations by the states, and, if this were not so,the appellants, absent the states or their officers, have no standing in this suit to raise any question underthe amendment.” Id. at 144. In Bond, the Court states that the "sentence from Tennessee Electric that we have quoted and discussed should be deemed neither controlling nor instructive on the issue of standing as that term is now defined and applied."
The Court further notes:
There is no basis to support the Government’s proposed distinction between different federalism arguments for purposes of prudential standing rules. The princi-ples of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York, 505 U. S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U. S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.
Ginsburg wrote "separately to make the following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law."
As Supreme Court opinions go, this one is relatively brief. It clarifies standing doctrine without changing the landscape.
Tuesday, March 22, 2011
A "mini-symposium" on April 7, 2011, starting at 3pm, will feature a lecture on "One State's Challenge to the Defense of Marriage Act" by Maura Healey, Chief, Civil Rights Division, Massachusetts Attorney General's Office.
Healy (pictured right) will be speaking about Massachusetts' successful constitutional challenge to section 3 of DOMA; Judge Tauro found that section 3 "offends" the Tenth Amendment reasoning that marriage is a quintessential matter of state, and not federal, power.
Healy's talk will be followed by a panel discussion, moderated by Steve Sanders, and including:
- Thomas M. Fisher, Solicitor General, State of Indiana
- Dawn Johnsen, Walter W. Foskett Professor, Indiana University Maurer School of Law, and former Deputy Assistant Attorney General, U.S. Department of Justice
- Brian Powell, Rudy Professor of Sociology, Indiana University College of Arts & Sciences and co-author of Counted Out: Same-sex Relations and Americans' Definitions of the Family
- Deborah Widiss, Associate Professor, Indiana University Maurer School of Law
More information about the event and its webcast available here.
Tuesday, February 22, 2011
The Court heard oral argument today in Bond v. United States which involves the criminal conviction of Carol Ann Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
That this is no ordinary criminal appeal is evinced by the appearance of Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.” If this is a case in which even the United States - - - who after all, prosecuted Ms. Bonds - - - agrees with the defendant, then why is this case in the United States Supreme Court?
The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute: Noting that there was a split in the circuits on the issue, the court stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”
There is little doubt that Bond has standing to raise the issue of whether the federal statute exceeds federal power, either under the Commerce Clause or the Treaty Power, but much more ambiguity regarding the Tenth Amendment Claim. Yet this prompts the query of the real difference between a Congressional lack of enumerated power argument and a Tenth Amendment argument, a subject that preoccupied the Court at first.
JUSTICE ALITO: . . . . Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?
MR. DREEBEN: I'm not sure, Justice Alito. I will assume with you that it is. The statute -
JUSTICE ALITO: If she possesses a chemical weapon.
MR. DREEBEN: I'm not sure that vinegar is a chemical weapon.
JUSTICE ALITO: Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's -- that's a chemical weapon.
After a bit of vinegar discussion, Justice Ginsburg asked if the argument had veered into the merits, to which Dreeben replied, "A lot further than I had intended, Justice Ginsburg. . . ."
Appointed to argue for the opinion below, Stephen McAllister crystalized the issue quite quickly:
The relevant standing doctrine in this case is the prudential rule against third-party standing. No one disputes here that the Petitioner has Article III standing. One of the difficulties in the case is that the only case that mentions specifically standing in this context is the Tennessee Valley Authority case [Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939)] and it clearly says if it is in fact a Tenth Amendment claim, unless you have a State official or the State, there is no standing.
Yet Roberts replied, "Pretty harsh, if we're talking about prudential standing, to deny that to a criminal defendant, isn't it?"
Later, Roberts again raised the relevance of the criminal context of the case and reiterated the enumerated powers/Tenth Amendment relationship:
CHIEF JUSTICE ROBERTS: . . . . it seems to me we've had a lot of discussion this morning about whether this is an enumerated powers claim or a Tenth Amendment claim. They really do kind of blend together, and it seems to me awfully difficult to put on a criminal defendant the responsibility to decide whether this is going to be an enumerated powers claim or this is going to be a Tenth Amendment claim. The basic principles do kind of merge together, and why does it make -- again, why does it make that much of a difference and why do you put the burden on the defendant to parse the claim one way or another, since I assume they can make pretty much all the same arguments under an enumerated powers [argument] . . . .
The Court’s opinion can be expected to address whether or not a criminal defendant has prudential standing to raise a Tenth Amendment claim and presumably provide guidance on what difference that makes when the defendant can raise a (lack of) enumerated powers claim.
Monday, December 13, 2010
Judge Henry Hudson (E.D. Va.) today in Virginia v. Sebelius ruled the individual health-insurance mandate in the federal health care reform package unconstitutional. Judge Hudson ruled that the individual mandate exceeded Congress's authority under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare (Tax) Clause. The decision was unsurprising. (Judge Hudson previously denied the government's motion to dismiss, anticipating his ruling on the merits here.) Here are some highlights:
- The Commerce Clause. Judge Hudson ruled that the individual mandate exceeded congressional authority under the Commerce Clause, because it regulates "inactivity," not economic activity. Judge Hudson described this as unprecedented--leading to unfettered congressional authority. The mandate wasn't saved by an aggregation theory, taking the aggregate economic effect of decisions not to purchase health insurance.
- The Necessary and Proper Clause. Judge Hudson ruled that the Necessary and Proper Clause added nothing to the Commerce Clause: If the power's not in the Commerce Clause, the Necessary and Proper Clause doesn't give Congress the power to do it. This is rather breathtaking, given the Supreme Court's ruling last term in U.S. v. Comstock, upholding the federal civil commitment statute under the Necessary and Proper Clause, and, in the course, reinforcing a broad reading of the Necessary and Proper Clause.
- The General Welfare Clause. Judge Hudson ruled that the mandate operated as a penalty masquerading as a tax. Interestingly, he pointed to congressional intent here, suggesting that the tax for failing to purchase health insurance is, in fact, a penalty. (He didn't similarly defer to Congress on the Commerce Clause and Necessary and Proper Clause.)
- The Tenth Amendment. The Tenth Amendment played a very minor role in the decision. Judge Hudson quoted it at the end of his tax analysis, writing first that Congress has defined authority under the Constitution under Article I, Section 8, and next merely quoting and citing the Tenth Amendment.
- Relief. Judge Hudson severed the individual mandate and directly dependent provisions from the rest of the legislation, ruling that only those sections are unconstitutional (and preserving the rest of the legislation). He also only issued a declaratory judgment, not injunctive relief. The ruling is thus quite narrow and recognizes that the issue will be resolved finally in the higher courts.
We most recently posted on health reform lawsuits here, in Liberty University v. Geithner. In that case, the federal district judge dismissed a similar constitutional challenge to reform. Check out the ACA Litigation Blog for litigation documents in all these cases.
Wednesday, December 8, 2010
Chamber of Commerce v. Whiting Oral Argument Analysis: An Arizona Immigration Statute Before the Supreme Court
The Court heard oral argument this morning in Chamber of Commerce v. Whiting, a constitutional challenge on Supremacy Clause/preemption grounds to the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens." The law was signed by then-governor of Arizona Janet Napolitano, who is now Secretary of Homeland Security and tasked with enforcing federal immigration law, an "irony" noted by Nina Totenberg of NPR.
The Court granted certiorari in late June to review a Ninth Circuit opinion upholding the constitutionality of the Arizona statute. [The case was formerly known as Chamber of Commerce v. Candelaria]. While the statute at issue is not the notorious Arizona SB1070, the attention that SB1070 has garnered is not irrelevant and may have contributed to the Court's grant of certiorari.
Justice Kagan has recused herself and did not participate in today's argument. As Solicitor General, she filed a brief on the petition for writ of certiorari; the Solicitor General's brief advocated that the writ be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by 8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” That is precisely the issue before the Court. Acting Solictor General Neal Katyal argued on behalf of the United States, supporting the Chamber of Commerce.
Arguing for the Chamber of Commerce Carter Phillips quickly articulated the notion that the Arizona statute provides for a “death penalty to the business” in that it might completely “eliminate the business's right to exist.” This "right to exist" occurs because Arizona's statute relies upon a provision in the 1986 federal statute, the Immigration Reform and Control Act (“IRCA”), regarding state authority to impose sanctions through licensing and similar laws.
"Licensing" turns out to be an ambiguous term, although in today's oral argument Kennedy admits he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments. Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude.
Sotomayor, however, had a different point: "how they define "license" or not is irrelevant to me." She asked Carter Phillips to explain the preemption of the state's ability to adjudicate, which for her is the central question.
In her argument, Mary O'Grady, Solicitor General of Arizona, emphasized the ability of the state to make determinations under the "savings clause" regarding licenses. However, at one point, Scalia seemed to believe her argument was too narrow:
JUSTICE SCALIA: Excuse me. Are you conceding that any variation from the Federal standards for -- for criminal and civil liability is automatically precluded?
I mean, as I read the exception, it's an exception for State licensing and similar laws. And it doesn't say, "So long as those licensing and similar laws go no further than what the Federal government has done." I mean, we often allow States to impose regulatory requirements that go beyond the regulatory requirements that the Federal government has imposed, and that is not automatically considered to be preempted. So why -- why are you conceding that Arizona cannot go a whit beyond what the Federal government says?
MS. O'GRADY: Because I think what Congress preserved for us was our ability to impose sanctions, including the suspension and revocation of State laws. But I do think they established a uniform national standard. I don't think we could, for example, establish a strict liability offense in Arizona. We would have to have a scienter requirement as they have in Federal law.
Breyer expressed concern that the state law essentially encouraged discrimination in conflict with the federal statute:
JUSTICE BREYER: Congress has passed a statute that gives the employer just as much incentive to verify, so there is no discrimination, as to dismiss, so there is no illegal hiring. It's absolutely balanced. A $1,000 fine for the one, a $1,000 fine for the other.
So Arizona comes along and says: I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead. That's just one thing they do. Now, how can you reconcile that intent to prevent discrimination against people because of their appearance or accent -- how do you reconcile that with Arizona's law?
If Kennedy is the deciding Justice, two of his comments to O'Grady arguing on behalf of Arizona may be indicative that the Court will conclude that the state statute is preempted:
JUSTICE KENNEDY: But you are taking the mechanism [E-VERIFY] that Congress said will be a pilot program that is optional and you are making it mandatory. It seems to me that's almost a classic example of a State doing something that is inconsistent with a Federal requirement.
JUSTICE KENNEDY: Just so you know, I interpret your answer as confirming the implication of Justice Breyer's questions that there is a very substantial difference in Federal and State law on this point. I mean, you told about -- you know what lawsuits are about. If you are home free, a driver's license and Social Security inspection under Federal law and you're not under State law, that is a difference.
[image: Max Liebermann, Women in a canning factory, 1879 via].