March 10, 2006
States Seek Redress on Medicare Clawback
The National Conference of State Legislatures reports that five states (Texas, Kentucky, Maine, Missouri, and New Jersey) have filed a U.S. Supreme Court complaint regarding provisions of the Medicare Modernization Act relating to drug expenditures for individuals with dual eligibility under Medicaid and Medicare. Ten others have filed an amicus brief in support of the base complaint. The complaint focuses on adverse effects on state sovereignty. Press releases from the respective attorneys general of the complaining states explain their view, in terms such as the following from the New Jersey Attorney General:
"Under the new law, which took effect in January of this year, New Jersey and the 49 other states are required to help fund federal Medicare coverage for dual eligibles via a monthly payment to Medicare commonly referred to as the “clawback.” It represents the first time since enactment of the Medicare program in 1965 that a significant portion of a federal Medicare benefit is being financed by state payments. New Jersey’s lawsuit contends that, in requiring states to help fund an entirely federal program, the federal government is encroaching on the State’s sovereignty.
“Our contention is that the Medicare clawback provision is unconstitutional because, among other things, it undermines the ability of New Jersey to control its own destiny as a state,” said Attorney General Farber. “In requiring the states to pay a specified dollar amount to support a federal program, the new law eliminates our ability to exercise control over a fundamental state function – spending.”
Here's how the National Conference of State Legislatures explained the situation:
"Phased-down state contribution payment refers to the states' monthly payment made to the Federal government beginning in 2006 to defray a portion of the Medicare drug expenditures for full-benefit dual eligible individuals whose Medicaid drug coverage is assumed by Medicare Part D. The monthly state contributions for each year, beginning in January of 2006, will be the product of the projected monthly per capita drug payment, the total number of full-benefit dual eligible individuals for the state in the applicable month, and the applicable ten year phased- down factor for the year (see the following table). State contributions will decline each year until 2015, at which time the applicable 10 year phased-down factor for each year will be fixed at 75 percent."
New Generation of Tax Revolts
The Christian Science Monitor has an interesting article on the latest in property tax revolts. Most of the activity appears to be in states where property values have increased rapidly (as was true at the time that Proposition XIII passed in California back in the 1970's). Here's the short list of current highlights from the article:
• Idaho: Lawmakers are mulling over eight bills limiting property taxes. One would revise the "homestead exemption," which now keeps the first $50,000 of a home's value off the tax rolls. The bill boosts that to $100,000.
• South Carolina: Having capped the rise in property tax assessments at 3 percent per year until a home is sold or improved, the legislature is now considering a rollback of property taxes, replacing them with a hike in the sales tax.
• Georgia: Many lawmakers are backing legislation that would put a similar 3 percent cap into the state constitution.
• Nevada: Protesters are gathering signatures for a citizen initiative that would require the state to refund taxpayers if state revenues rise faster than inflation. They also want to cap the growth in property tax bills at 1 percent per year.
• Connecticut: After an uproar over massive assessment hikes for lakefront properties around the state, state officials have ordered cities and towns that have seen property tax spikes to calibrate disputed assessments to "comparable" properties, based on records of recent sales.
March 6, 2006
Rumsfeld v. FAIR & constitutional conditions
Today the U.S. Supreme Court issued its decision in Rumsfeld v. Forum for Academic Institutional Rights (FAIR) (No. 04-1152), the case that challenged the Solomon Amendment that sought to condition federal funding on law schools' willingness to permit military recruiters on their campuses despite the military's "don't ask, don't tell" policies. The unanimous Court (Alito, J. not participating) spoke in a decision authored by Chief Justice Roberts.
As indicated in the Syllabus (continued below), the Court found that the Solomon Amendment regulates conduct rather than speech. The Court indicated that law schools were required by the statute to offer the military the same access to their campuess and students as is provided to non-military recruiters. The Court noted that there are limits on Congress' ability to condition recruit of funds but said that a funding condition could not be found unconstitutional if it could be imposed directly. The Court concluded that the First Amendment did not bar Congress from imposing an access requirement since the Solomon Amendment regulated conduct (rather than speech), did not require law schools to engage in compelled speech (since they could still disagree with military policy), and did not require undesired expressive association (recruiters were not deemed to impact law schools' associational rights).
Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools and law faculties, whose members have policies opposing discrimination based on, inter alia, sexual orientation. They would like to restrict military recruiting on their campuses because they object to the Government’s policy on homosexuals in the military, but the Solomon Amendment—which provides that educational institutions denying military recruiters access equal to that provided other recruiters will lose certain federal funds—forces them to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive those funds. In 2003, FAIR sought a preliminary injunction against enforcement of an earlier version of the Solomon Amendment, arguing that forced inclusion and equal treatment of military recruiters violated its members’ First Amendment freedoms of speech and association. Denying relief on the ground that FAIR had not established a likelihood of success on the merits, the District Court concluded that recruiting is conduct, not speech, and thus Congress could regulate any expressive aspect of the military’s conduct under United States v. O’Brien, 391 U. S. 367. The District Court, however, questioned the Department of Defense (DOD) interpretation of the Solomon Amendment, under which law schools must provide recruiters access at least equal to that provided other recruiters. Congress responded to this concern by codifying the DOD’s policy. Reversing the District Court’s judgment, the Third Circuit concluded that the amended Solomon Amendment violates the unconstitutional conditions doctrine by forcing a law school to choose between surrendering First Amendment rights and losing federal funding for its university. The court did not think that O’Brien applied, but nonetheless determined that, if the activities were expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under that decision.
Held: Because Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech and association, the Third Circuit erred in holding that the Solomon Amendment likely violates the First Amendment. Pp. 5–21.
1. The Solomon Amendment should be read the way both the Government and FAIR interpret it: In order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access. Contrary to the argument of amici law professors, a school excluding military recruiters could not comply with the Solomon Amendment by also excluding any other recruiter that violates its nondiscrimination policy. The Secretary of Defense must compare the military’s “access to campuses” and “to students” to “the access to campuses and to students that is provided to any other employer.” 10 U. S. C. A. §983. The statute does not focus on the content of a school’s recruiting policy, but on the result achieved by the policy. Applying the same policy to all recruiters does not comply with the statute if it results in a greater level of access for other recruiters than for the military. This interpretation is supported by the text of the statute and is necessary to give effect to the Solomon Amendment’s recent revision. Pp. 5–8.
2. Under the Solomon Amendment, a university must allow equal access for military recruiters in order to receive certain federal funds. Although there are limits on Congress’ ability to condition the receipt of funds, see, e.g., United States v. American Library Assn., Inc., 539 U. S. 194, 210, a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. Pp. 8–20.
(a) As a general matter, the Solomon Amendment regulates conduct, not speech. Nevertheless, the Court of Appeals concluded that the statute violates law schools’ freedom of speech in a number of ways. First, the law schools must provide military recruiters with some assistance clearly involving speech, such as sending e-mails and distributing flyers, if they provide such services to other recruiters. This speech is subject to First Amendment scrutiny, but the compelled speech here is plainly incidental to the statute’s regulation of conduct. Compelling a law school that sends e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance to the flag, West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, or forcing a Jehovah’s Witness to display a particular motto on his license plate, Wooley v. Maynard, 430 U. S. 705, and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
Second, that military recruiters are, to some extent, speaking while on campus does not mean that the Solomon Amendment unconstitutionally requires laws schools to accommodate the military’s message by including those recruiters in interviews and recruiting receptions. This Court has found compelled-speech violations where the complaining speaker’s own message was affected by the speech it was forced to accommodate. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566. Here, however, the schools are not speaking when they host interviews and recruiting receptions. They facilitate recruiting to assist their students in obtaining jobs. Thus, a law school’s recruiting services lack the expressive quality of, for example, the parade in Hurley. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what they may say about the military’s policies.
Third, freedom of speech can be violated by expressive conduct, but the expressive nature of the conduct regulated by the Solomon Amendment does not bring that conduct within the First Amendment’s protection. Unlike flag burning, see Texas v. Johnson, 491 U. S. 397, the conduct here is not so inherently expressive that it warrants protection under O’Brien. Before adoption of the Solomon Amendment’s equal-access requirement, law schools expressed their disagreement with the military by treating military recruiters differently from other recruiters. These actions were expressive not because of the conduct but because of the speech that accompanied that conduct. Moreover, even if the Solomon Amendment were regarded as regulating expressive conduct, it would be constitutional under O’Brien. Pp. 8–18.
(b) The Solomon Amendment also does not violate the law schools’ freedom of expressive association. Unlike Boy Scouts of America v. Dale, 530 U. S. 640, where the Boy Scouts’ freedom of expressive association was violated when a state law required the organization to accept a homosexual scoutmaster, the statute here does not force a law school “ ‘to accept members it does not desire,’ ” id., at 648. Law schools “associate” with military recruiters in the sense that they interact with them, but recruiters are not part of the school. They are outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. The freedom of expressive association protects more than a group’s membership decisions, reaching activities that affect a group’s ability to express its message by making group membership less attractive. But the Solomon Amendment has no similar effect on a law school’s associational rights. Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making membership less desirable. Pp. 18–20.
390 F. 3d 219, reversed and remanded.
Kelo and More on Takings from Vermont Law School
The Vermont Journal of Environmental Law has a great new symposium on Kelo and Takings Jurisprudence, available from their website. Richard Brooks' piece is particularly interesting since he knows New London and brings local knowledge to bear in thinking about Kelo and its implications. Other thoughtful pieces are by John Echeverria ("The Triumph of Justice Stevens and the Principal of Generality"); Marc Mihaly ("public-private redevelopment partnerships post Kelo); and Kinvin Wroth ("Lingle and Kelo: The Accidental Tourist in Canada and NAFTA-Land").
Block Grants: From Brookings
The Brookings Institution has a new study out on federal block grants. The study is entitled "Block Grants: Flexibility and Stability in Social Services.'
The policy brief tracks the history of federal block grants in the area of social services and their underl ying philosophy. They're designed to give states and localities more flexibility and to increase efficiency. Proponents of block grants also see them as a way to reduce the interest of Congress in funding such services by limiting Congress' ability to "take credit" for the resulting services and thereby limiting the likelihood of expansion. They also anticipate lower federal expenditures in time (trading money for flexibility).
The brief also summarizes recent history with block grants, including the significant decline in purchasing power of social service block grants, experience under President Reagan, and President Bush (W)'s proposals for further changes for further reform (consolidating block grants for Head Start, Food Stamps, Child Welfare, Assisted Housing, and Job Training among other things, and providing for a "superwaiver"). The report concludes that "Many stakeholders desire the flexible ends of block grant funding, yet oppose using means that typically threaten the stability of services. Unfortunately, it is not yet clear how to achieve flexibility while ensuring federal funding levels and accountability for outcomes."