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].
Tuesday, November 30, 2010
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.
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.
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.
Sunday, October 31, 2010
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.
Thursday, October 14, 2010
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.
Tuesday, October 12, 2010
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.
Saturday, September 18, 2010
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.
Sunday, August 1, 2010
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.