Tuesday, July 26, 2011

DOMA in New York: NY Attorney General Files Brief in Windsor v US

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.

DOMA

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.

RR

July 26, 2011 in Cases and Case Materials, Current Affairs, Equal Protection, Family, Federalism, Gender, Sexual Orientation, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, July 16, 2011

Schwinn on the Constitutionality of Health Care Reform

Our own Stephen Schwinn - - - SDS - - - discusses the recent Sixth Circuit opinion and constitutional challenges to health care reform in a guest column over at Jurist.

Stevenschwinn Schwinn (pictured right) concludes:

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.

RR


July 16, 2011 in Commerce Clause, Congressional Authority, Current Affairs, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, June 16, 2011

The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Opinion

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.

RR

June 16, 2011 in Opinion Analysis, Standing, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 22, 2011

DOMA and Federalism Event at Indiana University School of Law

Mary Healey 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.

RR

March 22, 2011 in Conferences, Family, Fundamental Rights, Gender, Sexual Orientation, Spending Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 22, 2011

The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Oral Argument

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. 

624px-D-W003_Warnung_vor_giftigen_Stoffen_ty.svg Justice Alito, however, posed a goldfish hypothetical, addressing the breadth of the underlying statute:

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.

Meanwhile, the mix of underlying facts and constitutional theory have commentators such as Dalia Lithwick and Garrett Epps writing excellent pieces worth sharing with students in Constitutional Law.

 

RR

February 22, 2011 in Congressional Authority, Federalism, Oral Argument Analysis, Standing, Teaching Tips, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, December 13, 2010

Health Care Reform Unconstitutional, District Judge Rules

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.

SDS

 

December 13, 2010 in Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Recent Cases, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

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. 

Max_Liebermann_Canning_factory
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.

RR

[image: Max Liebermann, Women in a canning factory, 1879 via].

December 8, 2010 in Cases and Case Materials, Federalism, Oral Argument Analysis, Preemption, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 30, 2010

Federal Judge Dismisses Case Against Health Care Reform

Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation.  The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.

Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform.  The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague.  Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.

On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate.  Judge Moon wrote that

The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison.  Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care.  The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . .  Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.

Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform).  Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:

As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .

The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.

Op. at 31.

As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).

As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson.  The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.

As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices.  "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  Op. at 43.

Judge Moon ruled that the religious exemptions also did not violate equal protection.  "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review."  Op. at 46.  The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.

As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association.  "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services."  Op. at 49.  Any required association is minimal.  And the federal act does not require the plaintiffs to speak on, or to support, abortion.

As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce."  Op. at 52 (quoting Head Money Cases.)

Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people.  "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process."  Op. at 53.

SDS

November 30, 2010 in Association, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, Federalism, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Religion, Ripeness, Speech, Standing, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 10, 2010

How do you spell Bush v. Gore?: Miller sues over ballot interpretations of Murkowski's name in Alaska Senate race

In a Complaint filed late yesterday in the Alaska District Court, United States Senate Candidate Joe Miller is seeking to exclude write-in ballots for incumbent Senator Lisa Murkowski unless her name is spelled correctly.  As background, there is good reporting from the Anchorage Daily News and a prediction of this lawsuit by Rick Hansen over at Election Law Blog.

Miller's Complaint states four claims for relief:

First, citing the Elections Clause, Article I section 4, cl 1, which provides  that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," Miller argues that the state executive branch is usurping the power of the state legislative branch.

Second, relying on the Equal Protection Clause as interpreted in Bush v. Gore, Miller alleges that the state officials “quixotic quest” to determine the intent of the voter will result in the “arbitrary and disparate treatment of write-in ballots in clear violation of the U.S. Constitution.”

In counts three and four, Miller raises state law claims under the Alaska Election Code and the Alaska Administrative Procedure Act.

As in Bush v. Gore, the candidate who otherwise advocates "states rights" and disparages "federal activist judges" is asking a federal court to intervene and enjoin state officials from implementing their interpretation of state law.

Murkowski
 

Before the election, Miller filed a complaint with the FEC against Alaskans Standing Together,  a PAC with Native Alaskan support that opposed his candicacy and supported Murkowski (as illustrated by the image above from its website).  The PAC will undoubtedly be relying upon Citizens United v. FEC.

RR

[image via]

 

November 10, 2010 in Campaign Finance, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Sunday, October 31, 2010

Federalism, Marriage, Perry and DOMA: Sanders on States Amicus Brief

Steve Sanders has posted an interesting commentary on the amicus brief filed by thirteen states in Perry v. Schwarzenegger, the Proposition 8 case now in the Ninth Circuit, which we last discussed here.

Sanders points to the inconsistency in the arguments in this amicus brief with the appeal in Commonwealth of Massachusetts v. HHS, the DOMA case in which the district judge agreed that DOMA conflicts with the Massachusetts' Tenth Amendment reserved powers.   He writes that these 13 states are "unlikely to link arms with Massachusetts," because given "the choice between a consistent position in favor of states' rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter."  

The Tenth Amendment argument in the Massachuetts DOMA case also poses consistency issues for those relying on the Tenth Amendment in the context of challenges to Arizona's immigration law, SB 1070.

RR

October 31, 2010 in Family, Federalism, Sexual Orientation, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Thursday, October 14, 2010

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

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

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

Here is the bottom line:

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

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

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

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

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

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

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

RR

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

Tuesday, October 12, 2010

Obama DOJ Appeals Decision that DOMA Section 3 is Unconstitutional

UPDATE HERE

Recall the two decisions of United States District Judge Joseph Tauro holding section 3 of the Defense of Mariage Act (DOMA) unconstitutional: Commonwealth of Massachusetts v. HHS  and Gill v. Office of Personnel Management. 

The Obama Department of Justice has filed its notices of appeal to the First Circuit today.

DOMA Section3

RR


October 12, 2010 in Family, Federalism, Fourteenth Amendment, Sexual Orientation, Sexuality, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, September 18, 2010

Marijuana Legalization as a Civil Rights Issue

Marijuana plant Editorializing about the "war on drugs" as a war not on the "drug lords and violent cartels" but a war " that disproportionately impacts young men and women and is the latest tool for imposing Jim Crow on poor African Americans,"  Alice Huffman, president of the California NAACP, supports California's Proposition 19 in the San Francisco Chronicle here

Huffman has joined other voices in favor of legalizing marijuana, including arguments regarding an extension of Lawrence v. Texas to include marijuana legalization, which we discussed here.

Marijuana legalization by California (or any state) raises a potential federalism or Tenth Amendment issue since marijuana remains a controlled substance under federal law. 

RR

[image via]

September 18, 2010 in Current Affairs, Due Process (Substantive), Elections and Voting, Federalism, Medical Decisions, Race, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Sunday, August 1, 2010

Missourians Vote on Health Insurance Mandate Nullification Measure

Missourians on Tuesday will vote on a referendum aimed at nullifying the individual health insurance mandate enacted as part of the federal health care overhaul earlier this year.  The ballot proposal, Proposition C, asks voters if the Missouri statutes--not its constitution--shall be amended to

[d]eny the government authority to penalize citizens for refusing to purchase private health insurance or infringe upon the right to offer or accept direct payment for lawful healthcare services?

Missouri is the first of at least three states to consider such a measure.

Proposition C is quite likely to pass on Tuesday, according to polls.  Democrats have all but ignored it and framed it as a meaningless Republican straw poll; Republicans have framed it as a referendum on federal health care reform, an expansive federal government, and the Obama administration.  The NYT reports here.

Whatever the measure's political significance, the ballot results will have no legal significance.  If the federal government has authority to enact the individual health insurance mandate--a hotly contested issue, which we've covered here, here, here, here, and here--the Supremacy Clause prohibits states from interfering and nullifying.  In other words, if the federal government has authority to do this--a question that will ultimately be decided by the courts--Missouri can't stop it by ballot initiative.

And if the federal government doesn't have authority, Missouri's vote will be irrelevant.

SDS

August 1, 2010 in Congressional Authority, Federalism, News, Recent Cases, Tenth Amendment | Permalink | Comments (3) | TrackBack (0)

Thursday, July 22, 2010

Immigration Ordinance in Nebraska City of Fremont Challenged

The “Immigration Ordinance” of Fremont, Nebraska prohibits  “the harboring of illegal aliens or hiring of unauthorized aliens.”  Ordinance 5165 was passed by a ballot initiative this June (by a vote of  3906  to 2908) and is scheduled to become effective July 29, 2010.

The Ordinance 5165 provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city.   The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and
in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement.

Fremont Ordinance 5165 also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration.

800px-Panoramic_View_of_Fremont,_Nebraska_1908

Interestingly, before the vote, the City of Fremont itself brought an action in state court seeking a declaratory judgment that any ordinance resulting from the ballot initiative would be unconstitutional in contravention of the Supremacy Clause. The Nebraska Supreme Court issued its opinion in April: it did not rule on the merits of the Supremacy Clause argument, holding instead that “substantive challenges to proposed initiatives are not justiciable before the measure is adopted by voters.”   (The city also argued that the ballot measure violated the state constitution’s “single subject” rule, but the Nebraska Supreme Court affirmed the lower court’s conclusion that the measure did have “one general subject- - - the regulation of illegal aliens in Fremont.”)

Two complaints have been filed in federal court challenging the constitutionality of the Ordinance.

The  ACLU Nebraska Foundation and various named plaintiffs have filed a Complaint in the US District Court for Nebraska seeking an injunction against enforcement of the Fremont Ordinance.  The complaint alleges that the Fremont Ordinance is subject to preemption under the Supremacy Clause, Article VI; that the Fremont Ordinance is unconstitutional under the Equal Protection Clause; that the Fremont Ordinance is void for vagueness under the Due Process Clause; and that the Ordinance violates the Federal Fair Housing Act and state laws regarding municipal powers.

The Complaint filed by MALDEF that includes a landlord as a named plaintiff also seeks an injunction and likewise alleges preemption and equal protection, and also includes a commerce clause claim.

In defending the lawsuits, the City of Fremont is in the unenviable position of having the complaints filed against it repeat the very arguments it previously advanced. According to the Nebraska Supreme Court opinion:

Fremont points out that courts have uniformly determined that harboring and housing provisions such as those contained in the Measure are preempted by federal law and therefore are unconstitutional. It therefore asserts that measures which are unconstitutional or void are beyond the power or authority of a municipality to enact and are therefore not subject to initiative or referendum.
The Nebraska Supreme Court followed this recitation of the city’s argument by stating:  “We point out that a measure is not unconstitutional until a court makes such a determination.”  

The federal district court in Nebraska now has the task of making such a determination.  Some of our previous discussions of preemption/Supremacy Clause and other arguments regarding immigration laws passed by states and localities are available here, here and here.  An excellent news report on the Fremont, Nebraska controversy is here.

[image: view of Fremont, Nebraska, 1908 via]

RR

July 22, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, News, Preemption, State Constitutional Law, Tenth Amendment | Permalink | Comments (2) | TrackBack (0)

Thursday, July 15, 2010

Zywicki at Cato: Repeal the Seventeenth Amendment

Professor Todd Zywicki (George Mason) made a case for repeal of the Seventeenth Amendment in this Cato Institute podcast, posted Thursday.

The Seventeenth Amendment, ratified in 1913, provides for direct election of U.S. Senators by the people (and not, as in the original Article I, Section 3, by process set by the state legislature).  The change, Zywicki argues, means that U.S. Senators no longer answer to their states.  As a result, the Senate no longer plays its state-protecting role that it once played--that individual U.S. Senators (and thus the Senate as a whole) lack the incentives to control federal encroachment upon the states.  Moreover, questions of federalism that were once resolved by the political branches (with the Senate as protector of the states) now go to the Supreme Court under the Tenth Amendment.  But the Supreme Court has "fumbled," upsetting the federal-state balance that the Founders so carefully framed.

These and similar arguments have gained more vocal followers recently, especially within the Tea Party movement, as we've covered here.

SDS

July 15, 2010 in Federalism, Interpretation, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 14, 2010

Immigration and the Tenth Amendment

"If the federal government chooses not to exercise its powers, does it forfeit that power to the states and the people [under the Tenth Amendment]?"  Chicago Tribune columnist Dennis Byrne asks the question in his op-ed in today's paper, Immigration: A state or federal power? 

The Tenth Amendment states simply that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Byrne isn't alone in arguing that the Tenth Amendment bans the federal government from taking action in any number of areas, including, health care reform and immigration.  Such claims have even worked their way into Supreme Court nominee Elena Kagan's hearings.  Consider these written follow-up questions (pages 9 to 10) from Senator Sessions to Kagan (released with Kagan's written responses on Friday):

Do you think the Tenth Amendment is "a very specific provision" of the Constitution, or a "broad principle"?  Please explain your answer.

Do you think the purpose of the Tenth Amendment was intended to give further textual protections to federalism, apart from the broader structure set up by the Constitution?

If you believe the Tenth Amendment is a "broad principle," do you think the "broad principle" was ultimately intended to protect the liberty of individuals, or the power of governments?

But Byrne overreads the Tenth Amendment in two ways.  First, he suggests that the Tenth Amendment somehow empowers the states to act in areas delegated to the federal government when the federal government declines to exercise its full power, or when it exercises its power in a way that the states don't like.  This is exactly what happened in the Arizona immigration debate: The federal government enforced its comprehensive immigration scheme in a way that Arizona didn't like.  Byrne argues that this is enough under the Tenth Amendment to reserve the immigration power to Arizona. 

This position is belied by the plain language of the Amendment.  The Amendment doesn't reserve to the states "the powers not executed (or only partially executed, or executed in a way that a state doesn't like) by the United States"; instead, it reserves "powers not delegated to the United States."  The Tenth Amendment does not take the federal government out of the federalism equation and vest all powers in the states simply because the federal government exercises its powers incompletely, or in a way that a state doesn't like.  Instead, it merely does what it says: It reserves powers to the states that are not delegated to the federal government.

But more: Byrne (and Sessions and others) seem to read the Tenth Amendment as a protection against too much federal power--even when the Constitution delegates the federal power.  Again, the Tenth Amendment cannot bear this weight.  To be sure, the Supreme Court has ruled that the Tenth Amendment bars the federal government from directly commandeering the states and their employees--using the states or their employees as mere arms of the federal government--but the Court's contemporary approach to the Amendment does not otherwise limit valid congressional enactments under the Constitution.

Kagan said it well in response to Sessions's questions:

The Tenth Amendment reserves to the States or to the people the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States."  The principal question the Court has considered with respect to this Amendment is whether it provides protections to the States and to the people beyond what follows from a system of enumerated and limited federal powers.

As Justice Story explained, the Tenth Amendment is an "affirmation" of the "necessary rule of interpreting the constitution" that all powers "not conferred" on the federal government are "withheld, and belong[] to state authorities."  United States v. Darby [citation omitted].  In New York v. United States, the Court noted that, "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress."  [Citation omitted.]

The Court has explained that the Tenth Amendment was intended to protect the powers reserved to the states, and thereby to safeguard individual liberty: "The Constitution divides authority between federal and state governments for the protection of individuals.  State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"  New York v. United States [citation omitted].

SDS

July 14, 2010 in Congressional Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, July 8, 2010

DOMA Unconstitutional: Massachusetts Federal District Judge Finds Section 3 of Defense of Marriage Act Unconstitutional

In two decisions today,  Commonwealth of Massachusetts v. HHS  and Gill v. Office of Personnel Management, United States District Judge Joseph Tauro held section 3 of the Defense of Mariage Act (DOMA) unconstitutional.

Section 3 of DOMA, 1 USC section 7, provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Thus, same-sex partners who are legally married pursuant to Massachusetts law are nevertheless not considered married for federal purposes.

In Commonwealth of Massachusetts v. US Dept of Health and Human Services, the Judge first found that the Commonwealth had standing to bring the lawsuit, noting that the federal "VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran," and that the "Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples." (Opinion at 21).  The Judge then merged the Tenth Amendment and Spending Clause challenges - - - "two sides of the same coin" - - - although specifically discussing and applying the classic spending clause case of South Dakota v. Dole. The Judge found that DOMA  "plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens," and applied First Circuit precedent regarding the test for a Tenth Amendment analysis. (Opinion at 28). Further, Judge Tauro  discussed the historical practice of marriage and family as being state, rather than federal matters, and noted:

That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty. For instance, in [United States v. ] Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”

Opinion at 32.  Thus, the Judge concluded that by enacting and enforcing DOMA, the federal government "encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment."  Opinion at 36.

In the companion case of  Gill v. Office of Personnel Management, (opinion available above), the Judge considered the challenge of seven plaintiffs who had been in same-sex marriages in Massachusetts and were denied federal benefits, including survivors’ benefits.  Judge Tauro outlined the plaintiffs arguments that the classification should merit strict scrutiny under equal protection clause doctrine, but held that the court “need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test,” because “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective, and that therefore DOMA violates the core constitutional principles of equal protection. Opinion at 21.

The Judge wrote that the Congressional House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.  

The Judge analyzed these interests finding them not legitimate, but not before noting that for "purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute." Opinion at 23. 

The Obama Administration's stance in defending DOMA has been watched closely; we discussed it here, and in the California litigation here.   According to Judge Tauro, in essence, the government now argued that "the Constitution permitted Congress to enact DOMA as a means to preserve the 'status quo,' pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage." Opinion at 27.  Judge Tauro also found that interest not legitimate, echoing some of the Tenth Amendment arguments in the companion case, Commonwealth of Massachusetts v. HHS, regarding the federal governments role - - - or lack of role - - - in marriage and family law.

The Judge also found that the 'status quo' rationale was not rationally served by DOMA:

The states alone are empowered to determine who is eligible to marry and, as of 1996 [the year DOMA was passed] no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one
woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.


Opinion at 32. Explicitly accepting the Plaintiffs’ argument, Judge Tauro, reasoned that "DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state sanctioned marriages into two, those that are valid for federal purposes and those that are not.” Opinion at 35.  Regarding the rational relationship argument, the Judge concluded that DOMA was based on "irrational prejudice" and therefore violated the equal protection clause as applicable to the federal government through the Fifth Amendment.

Thus, this federal district judge finds DOMA's section 3 unconstitutional, a ruling that will have great import for Massachusetts same-sex married couples and the state of Massachusetts, and which could be used persuasively in other states such as Iowa which allow same-sex marriage.

Whether or not the Obama Administration will appeal the ruling will be closely watched.

RR

July 8, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, News, Recent Cases, Sexual Orientation, Sexuality, Spending Clause, State Constitutional Law, Tenth Amendment | Permalink | Comments (4) | TrackBack (0)

Wednesday, June 2, 2010

The Tea Party and the Seventeenth Amendment

There has been a spate of coverage in recent days of Tea Party calls for repeal of the Seventeenth Amendment--the 1913 Amendment that replaced the appointment of U.S. Senators by state legislatures with popular election.  Just to cite a few pieces in just two outlets: David Firestone opined yesterday in the NYT; Ashby Jones responded in the WSJ Law Blog; Matt Bai wrote in today's NYT; Jones came back in today's WSJ Law Blog.

There appear to be two primary arguments against the Seventeenth Amendment.  First, the Seventeenth Amendment took away the states' primary political check on the federal government, leading to a vastly oversized federal government that freely tramples the states and their "rights."  Next, the Seventeenth Amendment took away the appointment of U.S. Senators from responsible and accountable state legislatures and put it in the hands of special interests (who pull the strings in state-wide senate elections).  As a result, Senators represent Big [Fill in the Blank], and not the states.  (The links in this paragraph go to The Tenth Amendment Center, a site full of material on "states' rights.")

Both arguments seem surprising in this political climate, where "states' rights" get frequent attention and where "states' rights" advocates seem to enjoy at least some political power at different levels of government.  (Don't the arguments fold back on themselves if "states' righters" are able to elect their own senators?  And if they can't garner the political support to elect their own senators, doesn't that say something about the voters' views on federal power and "states' rights," effectively negating the arguments?)

In any event, the issue has appeared in a handful of races this year, but has sometimes backfired.  "Repeal the Seventeenth Amendment" doesn't appear to be a particularly effective rallying cry, for good reasons.  First, there's no particular reason that voters should trust state legislatures more than themselves; repeal thus may sound anti-democratic and even elitist.  Next, repeal isn't a particularly durable position: When the politics change, positions on repeal will, too.  (If state legislatures were to appoint Senators who do not (by advocates' reckoning) sufficiently respect "states' rights," repeal advocates might call for reinstatement!)  Finally, repeal of a constitutional amendment is a particularly difficult (and uncertain) way to achieve the result that advocates seek; they might much more easily promote the election of candidates favorable to their own positions.  The call to repeal thus may sound to many voters like a political gimmick, not a serious constitutional position.

SDS

June 2, 2010 in Federalism, Tenth Amendment | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 18, 2010

The Mighty Sweeping Clause and Expansive Federal Power

The Supreme Court's 7-2 ruling yesterday in U.S. v. Comstock, upholding the government's ability to order "sexually dangerous persons" detained beyond their federal prison term, is a significant statement on the power of the federal government.  The case has important ramifications for other public debates and cases on the scope of federal authority and federalism--particularly on the individual health insurance mandate and health care reform's alleged violation of state sovereignty under the Tenth Amendment.

There are four aspects of the Comstock ruling that ought to catch our attention:

1.  The Scope of the Sweeping Clause.  The five-member majority (Justice Breyer, who wrote for the Court, Chief Justice Roberts, and Justices Stevens, Ginsburg, and Sotomayor) validated the broad and sweeping authority of the Necessary and Proper Clause, reviving the expansive language given to that Clause in McCulloch v. Maryland and citing to that case throughout the ruling.  (This itself is notable.  According to a Westlaw search, the Court has "examined" or "discussed" McCulloch in only nine other cases in the last 20 years.  The Comstock Court, in contrast, uses that case aggressively.)  The Court adopted an extremely deferential version of the McCulloch test for the Necessary and Proper Clause, writing that "Congress could have reasonably concluded . . ." in support of the Act.  And the Court ruled that the Clause could support a federal Act toward the end of another federal program that itself was predicated on an enumerated power in Article I, Section 8--that an Act under the Necessary and Proper Clause can be more than once removed from an enumerated power.

The upshot of the majority ruling is that the Necessary and Proper Clause can support broad federal action beyond the enumerated powers in Article I, Section 8, as long as the ultimate end (and not merely the immediate end) is one of those enumerated powers.  And moreover, as discussed below, it's up to Congress, not the Court, to decide the limits of this power.

Justices Kennedy and Alito would have read a narrower Necessary and Proper Clause, but they nevertheless joined the Court in its conclusion that the Clause supported this legislation.

2.  Deference to Congress.  The five-member majority read the Necessary and Proper Clause as giving Congress, not the Court, the power to determine the scope of its authority.  The Court deferred to Congress using something like Williamson v. Lee Optical rational basis review, writing that "Congress could have reasonably concluded . . ." in support of the legislation. 

This is the kind of deference we haven't seen in the Court's recent Commerce Clause jurisprudence (with the possible exception of Gonzales v. Raich).  And here it's notable that Justice Breyer wrote for the Court: Justice Breyer also wrote the lengthy and detailed dissents in U.S. v. Lopez and U.S. v. Morrison showing how the legislative evidence supported a rational basis for finding that the regulated activities in those cases substantially affected interstate commerce--why the Court should have deferred to Congress in those cases.  Comstock is something of a vindication of the Breyer position as applied to the Necessary and Proper Clause.

3.  A "Living" Constitution, Expanding Powers.  The five-member majority was unconcerned that detaining federal prisoners as "sexually dangerous persons" was an idea unanticipated by the Framers.  The Court quoted New York v. U.S. and McCulloch in writing that "the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role," and that ours is "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." 

4.  No Infringement upon State Sovereignty.  The five-member majority reaffirmed the Tenth Amendment as a truism, writing that "[v]irtually by definition, [powers in Article I, including the Necessary and Proper Clause] are not powers that the Constitution 'reserved to the States,'" and that nothing in the Act intruded into the powers of the states.

Taken together, these aspects of the Comstock ruling reflect broad (and expanding) federal authority, with little concern for federal infringement upon so-called "states' rights."  As the cases challenging health care reform move through the lower courts, we'll see how this plays out.  But it's hard to imagine how, with this new 7-2 ruling, this Court wouldn't also uphold health care reform (including the health insurance mandate).

SDS

May 18, 2010 in Congressional Authority, Federalism, Recent Cases, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)