September 13, 2009
States Seek to Limit Federal Health Care Overhaul
State lawmakers in several states have sought to introduce measures to curtail federal health care reform, according to a report yesterday by the AP. The effort has so far been most successful in Arizona, where a proposed state constitutional amendment will appear on the ballot in 2010. The bill reads in relevant part:
A. To preserve the freedom of Arizonans to provide for their health care:
1. A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.
2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.
B. Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.
This measure, and others like it, would certainly run up against federal preemption under any comprehensive federal reform bill.
On the flip side, protesters again suggested at Saturday's protest on the National Mall that federal health care reform would increase the size and scope of the federal government beyond what the founders intended. But any federal reform measure currently in play would fit comfortably within Congress's authority under the Commerce Clause and the Court's "substantial effects" test--i.e., that Congress can regulate under the Commerce Clause anything that has a "substantial effect" upon interstate commerce.
Given the reality of federal supremacy, the expansive federal authority under the Commerce Clause, and a sprawling health care system that pervades the national economy (isn't that exactly the problem?), the state efforts to limit federal health care reform and the arguments that federal health care reform exceed the federal government's powers have no real traction in our federal constitutional system. But they seem to have garnered enough of a following to at least signal that some number think, on principle or merely because of politics, that the federal government has no business in health care reform.
May 15, 2009
The State Sovereignty Movement
The state sovereignty movement speaks with many voices. At its modest, the movement merely seeks to release states from unfunded federal mandates and federal strong-arming through conditioned spending programs. At its strongest, some in the movement advocate secession.
But despite significant differences within the movement, there seems to be broad agreement that the Tenth Amendment protects states from federal interference more than the Supreme Court has held in cases like New York v. United States (federal government cannot commandeer a state's legislative process by requiring a state to enact and enforce a federal regulatory program), Printz v. United States (federal government cannot require state or local officials to enforce federal law), and South Dakota v. Dole (federal government may place certain conditions upon federal funds).
Just Wednesday, the Oklahoma Senate passed House Concurrent Resolution 1028, "A Concurrent Resolution claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; providing that certain federal legislation be prohibited or repealed; and directing distribution." Here are some highlights:
WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states . . .
WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp . . .
[therefore be it resolved]
THAT the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.
THAT this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.
THAT all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.
April 04, 2009
Sebelius(es) on Federal Burdens on States
Kansas Governor Kathleen Sebelius, whose Senate confirmation as HHS Secretary both started and stalled this week, and Georgetown and Kennedy School student Ned Sebelius co-authored an article in the Harvard Law & Policy Review, the official journal of the American Constitution Society, titled Bearing the Burdens of the Belway: Practical Realities of State Government and Federal-State Relations in the Twenty-First Century. The piece is a very practical (i.e., non-theoretical) review of federal-state relations over the past eight years from the perspective of a (Democratic) governor implementing federal mandates ofa (Republican) Congress and President.
The authors argue that federal mandates during the early twenty-first century are overwhelming the states, especially in the current economic crisis. Moreover, the types of federal bullying--failing to repay states for implementing federal program requirements, and setting caps, not floors, on state policy initiatives--are particularly burdensome and hamstring those states that seek to take initiative in areas where thefederal government dropped the ball.
They argue that federal strings in any single program may amount merely to "coercion" (acceptable under South Dakota v. Dole), when taken together unfunded federal mandates amount to compulsion.
The authors look at No Child Left Behind, SCHIP, and the State Criminal Alien Assistance Program and REAL ID to bring a very practical perspective to federal state relations.
The article is unselfconsciously political, but that may make it all the more interesting an illustration of a governor's perspective on federal mandates. It'll be especially interesting to see how this perspective informs the likely Secretary Sebelius, as she takes charge of an agency with many and varied cooperative federalism programs.
March 11, 2009
S.C. Governor Rejects Stimulus As Is, Seeks Waiver
South Carolina Governor Mark Sanford yesterday wrote to members of Congress detailing his objections to the federal stimulus act, stating his intent to reject portions of the federal money for ongoing state needs, and indicating that he'll seek a waiver from the White House to use the governor's portion of the stimulus funds--about 25% of South Carolina's total allocation, or about $700 million--to pay down the state's debt. If the White House declines, Sanford will reject the money. (Sanford's position on federal bailouts and stimuli, by the way, is not entirely new. He was also highly critical of the Bush administration financial bailout plan.)
The federal government, of course, can impose conditions upon its funds to the states, within certain boundaries. And State's, of course, can accept or reject the conditions (along with the funds). But Sanford's move raises the question: How?
The federal stimulus act includes a provision--inserted by South Carolina Democratic Congressman Jim Clyburn--that allows state legislatures to bypass their governor's rejection of federal stimulus funds merely by adopting a concurrent resolution. Section 1607(b) of the act (page 190) reads:
If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.
The act thus cuts out the governor, without regard to whatever state law may have to say.
Jack Balkin over at Balkinization suggests that this may well be unconstitutional: It depends on what state law says about the legislature's ability to accept the funds on behalf of the state when the governor would reject them. (According to ABC News, Clyburn said in response, "I'm not a constitutional authority, I'm not a lawyer, and I will let lawyers and constitutional scholars argue that point and that's why we have courts." Moreover: "I don't know whether or not it's constitutional. Whatever is constitutional is whatever the Supreme Court says it is.")
If 1607(b) is inconsistent with state law on who gets to decide whether to take federal funds, it most certainly is unconstitutional--every bit as much as the federal government dictating the location of a state capitol. But recall that 1607(b) wasn't the only portion of the act where the federal government attempted to direct the democratic workings of state government: The original H.R. 1 contained a provision denying funds to Illinois if Blagojevich were still in office (!).
Whatever one thinks about Sanford (and other Republican governors threatening to reject the funds) and Blagojevich, Congress seems to be trying to stimulate much more than the economy: It apparently also seeks to stimulate how state governments work. This it cannot do.
February 10, 2009
States Complain about Federal Sex Offender Registration Act
The NYT reported yesterday on states' complaints about requirements under the federal Adam Walsh Child Protection and Safety Act and on sex offenders' claims that the registration requirements violate constitutional rights.
But officials in many states complain about the law's cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional [under the Tenth Amendment], at least in part. . . .
Other lawsuits have challenged the requirement that adults whose crimes were committed before the law's passage appear on public registries for longer than they had been led to expect. Some lawyers say that amounts to changing an offender's penalty after the fact, a potential [violation of the Ex Post Facto and Due Process Clauses].
The Tenth Amendment claim has not gained traction in the courts; in fact, it's been uniformly rejected. Courts--all district courts, as far as I can tell--have held that the Act does not require state officers to do anything more than they already do under state laws; thus there's no commandeering.
But the Ex Post Facto and Due Process arguments have gained some small measure of traction. For example, the Seventh Circuit ruled just over a month ago in late 2008 in U.S. v. Dixon that a conviction for failing to register ran afoul of both clauses, where the defendant's failure to register occurred before the Act took effect (i.e., within a reasonable period after the date he was required to register under the Act). But the court in that same case also held that another conviction did not violate the clauses, where this second defendant admitted to not registering a full five months after the date he was required to register under the Act. Timing quite obviously matters.
Commerce Clause claims have gained more traction and divided the courts. The Eighth Circuit--the most recent circuit court to rule--in U.S. v. Howell held that the registration requirements did not exceed Congressional authority under the Commerce Clause and the Necessary and Proper Clause. (The Howell court specifically augmented the Commerce Clause with the Necessary and Proper Clause in its holding, distinguishing other cases that ruled the Act exceeded Commerce Clause authority (alone).)
Other claims are based on the right to travel and the nondelegation doctrine; these claims haven't gone anywhere.
January 26, 2009
House Bailout for Illinois Conditioned Upon Blagojevich Removal
The House bailout plan--H.R. 1--contains an extraordinary provision apparently designed to deny funds to Illinois as long as embattled Governor Rod Blagojevich has any control over them (!). Read here:
None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois. The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.
H.R. 1, sec. 1112.
Whatever we think about Blagojevich, this is a clear federal impingement on the operations of a state government and sets a very bad precedent. (Blagojevich will certainly be removed from office soon, thus rendering the issue moot. This language therefore won't be tested and will remain on the books (absent an amendment) as a bad precedent for the federal government intruding into the internal operations of a sovereign state.)
The spending condition fails under South Dakota v. Dole, because it bears no relationship to the federal interest in the bailout program. But even if we stretch things to say that the condition relates to a federal interest in fiscal responsibility (because Blagojevich simply can't be trusted with any public money), the condition fails under Coyle v. Oklahoma. Remember that case? Justice O'Connor cited it in her dissent in Garcia v. San Antonio Metropolitan Transit Authority for the claim that some federal intrusions into the operations of state governments--in Coyle, the federal government dictating the location of the state capital--"undermine the state sovereignty inherent in the Tenth Amendment." Here, no different: The federal bailout spending requirement that Illinois remove its governor--or, equally bad, that it time its legislation to meet federal standards--simply goes too far.
October 07, 2008
Book Review: The Role of SCOTUS
An insightful book review by Bradley J. Best (Dept. Political Science, Buena Vista University)
of An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court by Patrick Garry (Penn State Press 2008).
In AN ENTRENCHED LEGACY, Patrick Garry delivers a forceful indictment of the most basic trajectories of US Supreme Court decision making in the modern period. Put simply, Garry casts the post-1936 Court’s embrace of an expansive federal regulatory power and individual rights jurisprudence as nothing less than a betrayal of sacred constitutional principles. The scale of interventionist, national government power in post-New Deal America, he argues, evinces a sustained repudiation of federalism and separation of powers principles. Furthermore, expanding zones of constitutionally protected individual liberty are, in Garry’s view, the result of the Court’s disregard of the limits of the judicial function and rejection of the Ninth and Tenth Amendments as constraints on the powers of the national government.
The full review is available at 18 LAW AND POLITICS BOOK REVIEW 867-870 here.