Constitutional Law Prof Blog

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

Don't Ask, Don't Tell Report: Recommendations for Repeal of Military Policy

The Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell" has just been issued by the Department of Defense.  

In its 250plus pages, the report concludes that the overall effect of a repeal of the "don't ask don't tell" policy on military effectiveness is low. 

The Report has a number of recommendations necessary - - - or unnecessary - - - to effectuate the repeal:

• Leadership - strong leadership, a clear message, and proactive training and education are necessary  ("In our view, the starting point for this message should be a written communication
  from the leaders of the Department of Defense, to include the Secretary of Defense and the
  senior military leaders of each Service, that deliver their expectations in clear and forceful
  terms.")
• Standards of Conduct - revised regarding dating and public displays of affection
• Moral and Religious Concerns - recognition of pluralism, but not necessary to change policies to guarentee religious freedom or chaplain's regulations.
• Equal Opportunity -  the Department of Defense should NOT place sexual orientation alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs, tracking initiatives, and the Military Equal Opportunity program complaint resolution processes.
• Collection and Retention of Sexual Orientation Data - the Department of Defense should continue to NOT seek such data
• The Uniform Code of Military Justice - the Congressional repeal of Article 125 which criminalizes sodomy, and amend Article 120 of the UCMJ362 to include forcible sodomy and sodomy offenses against children. 
• Privacy and Cohabitation - the Department of Defense should expressly prohibit berthing or billeting assignments or bathroom facilities assignments based on sexual orientation, except that commanders should retain the authority to alter berthing or billeting assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission.
• Benefits - many benefits to same-sex partners are prohibited under the Defense of Marriage Act, however for some benefits, such as housing and legal services, the Department of Defense and the Services should review the benefits in this category and assess whether they can be extended to same-sex partners
  in accordance with  “member-designated” benefits rather than spousal benefits.
• Duty Assignments - the Department of Defense and the Services should not, at this time, rewrite their
  regulations to specifically accommodate same-sex committed relationships for purposes of duty assignments. However, gay and lesbian Service members in committed relationships— with either a civilian or a military partner—should be able to make an individualized, hardship-based request for accommodation in assignment.
•  Medical - there need not be any change in policies regarding HIV
• Re-Accession - Service members previously separated on the basis of homosexual conduct to be should be considered for re-entry, assuming they qualify in all other respects.
• Release from Service Commitments - For those who object to serving with gay and lesbian servicemembers, this shall not constitute a ground for voluntary discharge.

The much anticipated Report occurs against a backdrop of federal courts finding the Don't Ask, Don't Tell policy unconsitutional.

RR

Remedy for Unconstitutional Conditions in California Prisons?: Schwarzenegger v. Plata Oral Argument Analysis

The overcrowding in California's prison system that prevents the adequate treatment of the mental and physical health of prisoners in violation of the Eighth Amendment was the subject of today's oral argument in Schwarzenegger v. Plata.  

Yet the issue is not the unconstitutionality of the conditions; California essentially concedes the matter.  Instead, the issue is the remedy.  

Acting as an appellate court for a three judge court decision that ordered the California prison system to operate at "only" 137.5% of capacity, the United States Supreme Court confronted the intractability of the problem.  After 20 years of litigation before numerous district judges, the three judge court was convened and ultimately ordered a remedy of 137.5% capacity.  Reaching this goal could be done by transfer of prisoners, building new prisoners, or most controversially, prisoner release. 

Justices Sotomayor and Alito expressed opposing considerations during the argument. 

Sotomayor, addressing Carter Phillips arguing for Schwarzenegger, expressed concern for the prisoners:

JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?

Alito, addressing Donald Specter, arguing on behalf of the appellees, worried about the effect of a release order given rates of prisoner recidivism:

JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?

The oral argument was especially lively, with attorneys clearly not intimidated by the Justices.  For example, early in the argument, Phillips deflected Alito's question:

MR. PHILLIPS: Justice Breyer, when the receiver says that, now remember, he says at current population levels. He doesn't suggest, and his brief is very clear that it doesn't urge this Court to affirm the particular order in this case.
JUSTICE ALITO: Mr. -MR.
PHILLIPS: Can I just finish this?
JUSTICE ALITO: Yes.
MR. PHILLIPS: And the reality is that the population levels have dropped pretty significantly since August, since the trial in this particular case. And given the actions by the legislature .....

The argument continues with a question from Ginsburg, and then Sotomayor.

Later, during a colloquy with Roberts, Donald Specter seemed to suggest that Roberts be more patient:

MR. SPECTER: ........The governor himself wanted to reduce the prison population by 37,000. That was in one of his legislative enactments, and the secretary of corrections testified that those proposals were safe.
CHIEF JUSTICE ROBERTS: Did he want to do it within the 2-year period the district court ordered?
MR. SPECTER: Yes, Your Honor, he did. He submitted legislation to the legislature for that, and the legislature wouldn't -- wouldn't take it. And the governor actually said, reacting to that, after a riot at Chino which was partly -- at one of the -- Chino is a prison in California. A riot, he said, and the quote: "And the politicians in Sacramento have swept the problem under the rug."
CHIEF JUSTICE ROBERTS: Right. Right. No, my -- my question is specifically with respect to the ----
MR. SPECTER: I'll get to that.
CHIEF JUSTICE ROBERTS: With respect to the two-year plan ---
MR. SPECTER: Right.
CHIEF JUSTICE ROBERTS: -- and I would like an answer to that.
MR. SPECTER: Yes.
CHIEF JUSTICE ROBERTS: Because I look at this record; I see that the district court didn't do what with required by the Act with respect to the plan that it's ordering.

In addition to the constitutional query regarding a remedy for an Eighth Amendment violation, the issue of federalism darted to the surface on a few occasions.  Arguing on behalf of California, Phillips raised federalism as perhaps a "rhetorical" point. 

Later, Roberts posed the problem that states have numerous responsibilities and that this one - - - the prison problem - - - is being "transferred" from the state legislature to the federal courts:

MR. SPECTER: Well, I believe the Federal courts have an obligation to enforce the Constitution and the laws.
CHIEF JUSTICE ROBERTS: No, no. I believe that as well, Counsel.

The Court now has the opportunity to decide on whether or not to uphold the enforcement mechanism ordered by the three judge court in this lengthy and complex litigation.

RR

[image: Vincent Van Gogh's Prisoners' Round, 1890, via]

High Court to Rule on Arizona's Public Campaign Funding Act

The Supreme Court today agreed to hear Arizona Free Enterprise v. Bennett (consolidated with McComish v. Bennett), a case involving Arizona's public campaign funding system.  Under the system, candidates who participate in the State's public campaign finance program qualify for additional public matching funds when expenditures by and on behalf of a nonparticipating opponent exceed the participating candidate's original public grant.  The system thus seeks to even up expenditures between participating candidates and nonparticipating candidates who can vastly outspend them. 

The Court previously issued an order reinstating the trial court's injunction against the Arizona law and staying the Ninth Circuit's mandate overturning that injunction.  The law was therefore not in effect for the recent election.  We posted on the case here and here.

Arizona enacted its system in response to a rash of political scandals in the state.  Under the system, participating candidates get a lump sum grant for the primary campaign.  If funds spent by and on behalf of the nonparticipating opponent exceed that grant, the participating candidate receives state "matching funds" equal to the combined spending of the nonparticipating opponent, plus independent expenditures against the participating candidate, minus six percent and less the amount of early contributions raised by the nonparticipating opponent during preprimary fundraising.  (Why minus six percent?  Because the State determined that six percent represents fundraising costs for the nonparticipating opponent.)  The system works similarly in the general election.

The District Court ruled that the system violated the First Amendment, but the Ninth Circuit reversed.  The Ninth Circuit ruled that the system has a hybrid effect on both contributions and expenditures, and therefore "affects fully protected speech," but that any burden it imposes "is indirect or minimal."  Op. at 9161.  The court ruled that the system's restriction on speech was merely theoretical (not actual), and that the plaintiffs failed to show that it resulted in any restriction on their speech.  Thus the burden on speech "is most analogous to the burden of disclosure and disclaimer requirements in Buckley and Citizens United."  Op. at 9166.  The court thus applied intermediate scrutiny (and not strict scrutiny).

The Ninth Circuit distinguished Davis v. FEC, the Court's OT '07 case striking down the "Millionaire's Amendment."  That federal law increased the cap on contributions for U.S. House candidates who were significantly outspent by self-financed opponents.  The Court held that the law substantially burdened fully protected speech and therefore applied strict scrutiny.  The Ninth Circuit ruled that the Millionaire's Amendment, unlike Arizona's law, applied to privately financed candidates, and thus Davis had nothing to do with a public funding system like the one here.  The Ninth Circuit also noted that the Davis Court wrote that "had the law 'simply raised the contribution limits for all candidates, Davis' argument would plainly fail.'"  Op. at 9160 (quoting Davis).  This is exactly what Arizona tried to do.

The Ninth Circuit ruled that the Arizona system satisfied intermediate scrutiny: there is a substantial relation between the system's matching funds provision and the sufficiently important governmental interest in preventing quid pro quo corruption and the appearance of corruption.  The system also encourages candidates to use the public funding system, which further promotes these interests.  Participating candidates "have both reduced opportunities and reduced incentives to trade legislative favors for financial favors."  Op. at 9167-68.

The case goes to a Court that has been hostile to any effort that restricts or burdens campaign expenditures, most recently in Citizens United.  The difference here is that the law seeks to level up, not level down--yielding more campaign speech, not less--and it seeks to do it through a public funding system.  Moreover, the plaintiffs have not been particularly persuasive in showing that the law actually burdened their speech. 

A few things to watch in the case:

• The level of scrutiny that the Court applies to this hybrid law.  The Ninth Circuit applied the more lenient intermediate scrutiny; the Supreme Court may apply strict scrutiny.
• The fitness analysis at either level of scrutiny.  The State's case for actual quid pro quo corruption is weak; its case for the appearance of corruption is stronger.  Either way, the fitness between the scheme and these interests may push the bounds of even intermediate scrutiny for the Court.
• The plaintiffs' burdened speech.  How will the Court treat the plaintiffs' case that their speech is burdened?  The Ninth Circuit rejected their "theoretical" claims.  The Supreme Court may take these claims more seriously.

More generally, if the Court's recent cases stand for the principle that more speech is better, then this case could turn in part on whether the Court thinks the participant's increased speech from matching funds exceeds the nonparticipant's merely theoretical speech lost from self-imposed restrictions.  If, instead, the Court's recent cases say that no burden on campaign speech can stand (even if the burden is mostly theoretical, and even if the burden is outweighed by countervailing increased speech on the other side), then the Arizona law will surely fail.

SDS

A decade later . . . Bush v. Gore

Ten years ago, we were still waiting for a resolution of the Presidential election as November closed.  Jeffrey Toobin has a brief piece in The New Yorker accompanied by a live chat this afternoon, transcript here.

Toobin correctly notes that in the last ten years, "the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero."   Yet while that may be the "verdict" of the Supreme Court, litigants and courts have not been shy about relying on the case, as the continuing controversy over the Alaska Senate race demonstrates.

[UPDATE: A discussion of some other opinions on Bush v. Gore].

RR

 

Access and the Right to an Interpreter

The Georgia Supreme Court ruled earlier this week in Ling v. State that a criminal defendant who spoke Mandarin Chinese, and not English, "may be effectively incompetent to proceed in a criminal matter and rendered effectively absent at trial if no interpreter is provided."  Op. at 2.

The court connected English language skills and meaningful access to the legal system through Drope v. Missouri and mental incompetence.  The court explained:

A criminal defendant's "right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings" is guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment to the U.S. Constitution.  The due process clause also precludes trial and conviction of an accused while he or she is mentally incompetent. . . .  In Drope . . . for example, the U.S. Supreme Court discussed the history of the prohibition against trying mentally incompetent individuals, noting that some have viewed it "as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself. . . .  One who is unable to communicate effectively in English and does not receive an interpreter's assistance is no more competent to proceed than an individual who is incompetent due to mental incapacity.

Op. at 5-6.  In short: A non-English-speaking criminal defendant is denied access every bit as much as a mentally incompetent defendant, unless the State provides an interpreter.  (The court quoted its 2005 case, Ramos v. Terry: "The use of qualified interpreters is necessary to preserve meaningful access to the legal system for persons who speak and understand only languages other than English."  Op. at 3.)

The court remanded "to apply the standard in Drope and to state its findings on the record."

SDS

Elimination of Violence Against Women Day

In addition to the Thanksgiving holiday in the United States, today is International Day for the Elimination of Violence Against Women as proclaimed by the UN.

  

The Declaration on the Elimination of Violence Against Women was adopted by the UN General Assembly in 1994.  It rests in part on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was signed by President Jimmy Carter but has not been ratified by the Senate. 

A recently published and excellent article discussing the current state of CEDAW, including the constitutional issues, is Ann Piccard's U.S. Ratification of CEDAW: From Bad to Worse? available in draft form on ssrn here.

 RR

 

Second Circuit Declares Vermont Pharma Anti-Datamining and Detailing Statute Unconstitutional

Reversing the district judge, a divided panel of the Second Circuit has declared unconstitutional Vermont's prohibition of the sale and use of prescriber-identifiable data.  In its opinion in IMS v. Sorrell today, the panel majority found that the Vermont statute, Act 80, section 17, codified at title 18 section 4631, violates the First Amendment.  The decision essentially disagrees (although attempts to distinguish) two First Circuit decisions: an opinion upholding a similar statute from Maine and an opinion upholding a similar statute from New Hampshire.

The court described the statute as prohibiting pharmaceutical manufacturers from using prescriber-identified (PI) data regarding prescriptions written and dispensed in Vermont in their marketing efforts and thus interfering with the manufacturers’ ability to promote brand-name drugs to doctors through detailing, for example, by making it harder to identify those physicians for whom the message will be most relevant and to tailor the detailing messages based on individual physicians’ prescribing histories.  As to the other type of plaintiffs, data mining companies, the court described the statute as prohibiting data miners from selling or transmitting PI data regarding prescriptions written and dispensed in Vermont if that PI data will later be used for marketing purposes.  The court noted that data miners "do not themselves use PI data in their own marketing efforts. Rather, data miners are in the business of aggregating and selling the data to pharmaceutical manufacturers, among other entities, so that pharmaceutical manufacturers can use the data in their marketing strategies."

The majority found that Vermont statute regulates speech, and that the speech is commercial speech, and therefore articulated and applied the well-established (if often maligned) test from the 1980 case of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York:

Under Central Hudson, the government may regulate commercial speech when (1) “the communication is neither misleading nor related to unlawful activity;” (2) the government “assert[s] a substantial interest to be achieved” by the regulation; (3) the restriction “must directly advance the state interest;” and finally (4) “if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

The majority concludes that the statute fails three of the prongs of Central Hudson, including the assertion of a substantial government interest.  In a relatively rare occurrence under Central Hudson applications,  the majority concludes that "the state’s asserted interest in medical privacy is too speculative to qualify as a substantial state interest" under the second prong of Central Hudson:

Vermont has not shown any effect on the integrity of the prescribing process or the trust patients have in their doctors from the use of PI data in marketing. Vermont’s own expert was unaware of any instance in which a detailing interaction caused a doctor to prescribe an inappropriate medication. To the extent that the record might suggest PI data has damaged the relationship between doctors and patients, the evidence is either speculative or merely indicates that some doctors do not approve of detailing or the use of PI data in detailing.

Given this conclusion, it is not surprising that the majority finds that the restriction does not advance the state interest or could be served by a more limited restriction.

In a robust dissent, Second Circuit Judge Livingston first emphasizes that the restriction is on access to otherwise private information rather than commercial speech: : "I have some difficulty comparing the data they sell to “discourse” or the “exchange of ideas,"" and noting that the First Circuit concluded that PI was "just a product, not distinguishable from the data miners’ perspective to widgets, or, as the First Circuit suggested, “beef jerky.”"   The dissenting judge did, however, also apply Central Hudson and reached a different conclusion on each of the three prongs at issue.  Most trenchantly, Judge Livingston compares the majority's discussion of the indirect route traveled between the state's interest and its effects, to the indirect route traveled by the majority's own reasoning.  Additionally, she discussed the dormant commerce clause argument, an issue the majority did not reach in light of its holding that the statute was unconstitutional on First Amendment grounds.

 RR

[image via]

Mayeri on Fronterio

Serena Mayeri's article, "When the Trouble Started": The Story of Frontiero v. Richardson, available on ssrn, provides an important perspective on the military as the "Don't Ask, Don't Tell" policy continues to make news. 

Mayeri tells the story of Sharron Frontiero, a 23 year old U.S. Air Force lieutenant in 1969, who at first believes her failure to receive the spousal allowance for her new husband was a mistake.  Mayeri interweaves Frontoero's personal circumstance with the litigation and doctrine.  She demonstrates that  "Frontiero’s legacy extends beyond the intricacies of standards of review, the constitutionality of government benefits schemes, women’s status in the armed forces, and the career of the race-sex analogy."  As Mayeri admits, "Frontiero left a mixed legacy for military equality." 

ConLawProfs will enjoy this article for the depth it adds to teaching the material and as well as providing a perspective on present controversies.   

RR

D.C. Circuit on Prolonged GPS Surveillance

A sharply divided D.C. Circuit voted to deny en banc review on Friday of a panel ruling that the government's prolonged, warrantless surveillance of an individual by GPS attached to his car was an unreasonable search in violation of the Fourth Amendment.

The three-judge panel earlier ruled in U.S. v. Maynard that the government's use of a GPS device attached to appellant Jones's car, without warrant, and used to track his movements 24-hours-a-day for four weeks violated Jones's Fourth Amendment rights.  The panel distinguished U.S. v. Knotts, in which the Supreme Court held that the government's warrantless use of a beeper device to track Knotts to his secluded cabin was not a Fourth Amendment search:

The Court explicitly distinguished between the limited information discovered by use of the beeper--movements during a discrete journey--and more comprehensive or sustained monitoring of the sort at issue in this case. . . .

In short, Knotts held only that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end, as the Government would have it.

Op. at 17, 19.

Chief Judge Sentelle, joined by Judges Henderson, Brown, and Kavanaugh dissented from the decision denying rehearing en banc.  They argued that the case is squarely governed by Knotts and that the panel ruling puts the D.C. Circuit at odds with the Seventh Circuit in U.S. v. Garcia, the Eighth Circuit in Marquez, and the Ninth Circuit in U.S. v. Pineda-Moreno (dissents on the denial of en banc review are here).  (The panel held that the appellants in Pineda-Moreno and Garcia did not argue the issue and that Marquez addressed the issue only vaguely, and in an alternative holding.)

SDS

Judge Kimba Wood on gender equality

Federal District Judge Kimba Wood of the Southern District of New York responded to an attorney's jaunty request for a possible day off from trial - - - should his grandchild be born a boy - - - with an equally jaunty order  that attempts to "balance the scales" should the child be a girl.

 

RR

(h/t Laura Nixon)

 

 

Republican Senators File Amicus Opposing Health Care Reform

Thirty-three Republican Senators filed an amicus brief in the Northern District of Florida case challenging federal health care reform.  (We posted yesterday that state lawmakers filed their own amicus supporting reform.) 

The Republicans' brief collects and restates the several well known arguments that Congress lacked authority to enact the individual health insurance mandate under the Commerce Clause.  Thus the brief argues that (1) not getting health insurance isn't commerce and therefore isn't subject to Commerce Clause regulation, (2) at no time in our history has Congress required a "passive" person to purchase something under its Commerce Clause authority (and courts have never upheld this kind of exercise), (3) the government's theory would result in an unbridled Commerce Clause that would intrude into areas reserved for the states, vastly expand Congress's authority, and upset the delicate balance between federal enumerated powers and state police powers.

These are familiar arguments.  But two points in the brief caught my attention.  First, the Republicans argue that Congress didn't even find that not buying insurance substantially affects interstate commerce.  Instead, they argue, Congress found only that requiring the purchase of health insurance would substantially affect interstate commerce.  They argue that the Court requires Congress to find that the action regulated--and not the regulation itself--substantially affects interstate commerce, and therefore even Congress didn't find facts sufficient to support the exercise of its Commerce Clause authority in this way.

They also argue that while Congress has required "passive" individuals to do something under other Article I authorities (e.g., the authority to raise and support armies), it has never done so under the Commerce Clause.  They don't explain why this matters--why the principle that Congress can require action under one Article I authority doesn't transfer to other Article I authorities--except to say that authority here would lead to a limitless Commerce Clause. 

SDS

State Legislators' Amicus Supports Federal Health Care Reform

State legislators from 27 states today filed an amicus brief supporting the federal government in the State of Florida's challenge to federal health care reform now in the Northern District of Florida.  Some of the states represented have filed their own cases against the federal government.  We posted on the case here and here.

The legislators focus on federalism.  They argue first that federal health care reform does not violate principles of federalism, because it offers policy choices (and not requirements, in violation of the anti-commandeering rule) for the states at each turn.  For example: States have discretion to form their own insurance exchange, or to join with other states in a regional exchange, or to allow the federal government to administer a state-wide exchange; states have discretion in tailoring the health care plans to be provided through the exchange; and states can apply for a waiver to set up their own program, with or without a minimum coverage provision, or with a public option.  "This allows for the diversity and innovation that is the hallmark of the States."  Brief at 6.

The legislators also take on opposition to expanded coverage in Medicaid.  (Federal health care reform expands Medicaid eligibility to individuals under 65 with incomes below 133% of the federal poverty line.)  The legislators argue that Medicaid is and always has been a voluntary federal-state partnership and a classic example of federal conditioned spending (meeting the requirements of South Dakota v. Dole).  They argue that grumblings from Texas this week about opting out of Medicaid prove their point: States can opt out of the new requirements if they like--and thus there is no coercion or commandeering involved.

The Constitutional Accountability Center filed the brief on behalf of the legislators.

SDS

White House Weighs in on Access to Justice

Vice President Joe Biden today spoke at a Middle Class Task Force event co-hosted by the Department of Justice's Access to Justice Initiative.  He outlined three steps that the administration is taking to promote access:

• The Department of Labor is working with the American Bar Association to provide legal assistance to workers who lodge complaints (for not getting paid, e.g.) with DOL's Wage and Hour Division.
• The Department of Veterans Affairs and the Legal Services Corporation are working together to provide attorneys for veterans through the LSC network.
• The Department of Housing and Urban Development is working with the DOJ initiative to promote effective foreclosure mediation programs.

The DOJ Initiative has a number of other projects already in the works; check them out here.

SDS

CLS v. Martinez on Remand: No First Amendment Claim

The Ninth Circuit has refused to remand Christian Legal Society (CLS) v. Martinez - - - now Christian Legal Society v. Wu - - - to the district court to consider the claim that UC Hastings College of Law "selectively applied its Nondiscrimination Policy against CLS." 

The United States Supreme Court rendered its decision in CLS v. Martinez last term, holding that the Hastings Law School's policy of non-recognition of the Christian Legal Society (CLS) student group did not violate the First Amendment.   The Court remanded the case to the Ninth Circuit  to consider the selective application issue “if, and to the extent, it is preserved.” 

In a nine page Order the Ninth Circuit concludes that the selective application issue is not preserved.  The panel - - - Alex Kozinski, Procter Hug, Jr. and Carlos T. Bea - - - examines and extensively quotes from the Appellant's Brief in CLS v. Martinez and concludes the selective application argument (also called the pretext argument) is not made.   The panel then stated, "If omission of the pretext argument from the opening brief weren’t sufficient to convince us that the issue has not been preserved," then a "review of oral argument crystalizes our conclusion."  Again, the court quotes from oral argument.

Thus, although Justices Alito and Stevens rendered opinions regarding their respective (and opposing) views of  the merits of the selective application claim, the "procedural disarray" of the case, evident at oral argument, seems to have been the most important factor.

RR

First Circuit Upholds Mandatory Voluntary Pledge in Classrooms

A three-judge panel of the First Circuit on Friday upheld a New Hampshire law requiring school districts to authorize a period of time during the school day for recitation of the Pledge of Allegiance--including the words "under God."  Under the law, teachers are to lead their classes in a voluntary recitation of the Pledge.  Students may elect not to participate.

The plaintiffs in Freedom From Religion Foundation v. Hanover School District argued that the law violated the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the Due Process Clause.  The court rejected each claim.

(Fun fact: Michael Newdow of Elk Grove Unified School District v. Newdow is counsel for the plaintiffs.  The Supreme Court in Newdow ruled that Newdow lacked standing as next-of-friend to his daughter to challenge the school district's requirementthat all students recite the Pledge.  The problem: Newdow didn't have legal custody over his daughter.  There are no similar standing problems here.)

Establishment Clause.  The court ruled that the New Hampshire law satisfied each of the Court's approaches--the three-part Lemon test; the "endorsement" test first articulated by Justice O'Connor in concurrence in Lynch v. Donnelly; and the "coercion" analysis of Lee v. Weisman.  As to Lemon, the court ruled that New Hampshire had a secular purpose in enacting the requirement--the promotion of patriotism.  (The United States's purpose in adding the words "under God" in 1954 is irrelevant.)  The law doesn't have the primary or principal purpose of advancing religion, because it's voluntary and meant to further "the policy of teaching our country's history to the elementary and secondary pupils of this state."

As to endorsement, the court relied on the voluntary nature of the recitation.  It held that students may elect not to participate for any number of reasons that aren't obvious to the rest of the case.  The effect is therefore not to distinguish non-participants on the basis of religion--and therefore not to endorse religion.  Moreover, taken in the context of the whole Pledge, the words "under God" don't convey a message of endorsement.

As to coercion, the court ruled that this case is different than Lee.  In Lee, students were indirectly coerced into silence during a prayer at graduation; the silence was an act of participating in the prayer.  Here, where the words "under God" are couched in an otherwise secular Pledge and where silence does not have any necessary religious connotations, there's simply not the same kind of coercion as in Lee.

Free Exercise.  The court rejected this claim, relying on its ruling in Parker v. Hurley.  The First Circuit ruled in that case that "[p]ublic schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the students agree with or affirm those ideas, or even participate in discussions about them."  Here, mere exposure to the words "under God" does not inhibit their own (or their parents) free exercise.

The court rejected the equal protection and due process claims out of hand: nothing in the New Hampshire law led to any disparate treatment, and the due process argument (apparently based on parental rights) simply wasn't developed.

SDS

 

West Virginia "Acting Governor": Violation of State Constitution?

Joe Manchin, the former governor, was sworn in as the junior United States Senator from West Virginia yesterday.  West Virginia is one of less than ten states that does not have an official lieutenant governor to assume the governorship.  Instead, the West Virginia Constitution provides in Article VII, section16, "Vacancy in governorship, how filled":

In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.

The problem is separation of powers under the state constitution.  A member of the legislative branch, president of the Senate, Earl Ray Tomblin, who was sworn in as governor yesterday, is now the head of the executive branch.  The West Virginia Constitution specifically prohibits a person serving in two branches of state government.  Article V provides:

The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.

Thus, Article V conflicts with Article VII, section 16, which provides for one person to occupy positions in two branches.  However, section 16 clearly contemplates such a state of affairs as a temporary solution: "until the vacancy is filled."   But how temporary?  And how is the vacancy to be filled?

ConLawProf Robert Bastress at WVU College of Law argues that the legislature should be given the opportunity to solve the problem.  WV attorney Thornton Cooper intends to file a lawsuit with the state supreme court to require a special election.  Their views and a discussion of the law is available from WV public television in the segment below.

   

 

RR

 

Government Likely to Detain KSM Indefinitely

The Washington Post reported this weekend that the Obama administration is unlikely to push for federal trial for Khalid Sheik Mohammed (because it would anger lawmakers in Congress and in New York) and unlikely to push for trial in a military tribunal (because it would alienate liberal supporters).

The result?  It looks like indefinite detention.

The administration has long claimed that indefinite detention is authorized under the AUMF and legal under international law, although it hasn't given us its precise reasons.  (We posted on indefinite detention here and here.) 

The AtlanticWire collects reactions--from a critique that this means we're in a "forever war" to glee that Obama seems to be following the Bush administration's approach (but without also offering the aggressive legal claims).

SDS

Second Circuit on First Amendment Rights of Clerk of County Court

In an opinion issued this morning, the Second Circuit has allowed Bobette Morin's lawsuit against judges and court personnel in Ononganda County, New York to go forward.

In Morin v. Tormey, Morin, the Chief Clerk of Ononganda County Family Court since 1994, had alleged in her original complaint that:

In the summer of 2002, Voninski, then Executive Assistant to District Administrative Judge Tormey, escorted Morin to Tormey’s chambers. Tormey greeted Morin with a kiss and a hug and commended her for the “great job” she was doing. Tormey then told Morin that [County Family Court] Judge David G. Klim was running for State Supreme Court Justice on the Democratic ticket against “good Republican friends of mine” and asked Morin if she “was a good Republican” and whether she “wanted to be a ‘team player.’” Tormey and Voninski demanded that Morin “provide negative information about Judge Klim with respect to his upcoming judicial election for Supreme Court” and “ordered [her] to ‘dish dirt’ on Judge Klim.” They requested her “to monitor Judge Klim’s activities and to report his ‘comings and goings.’” Morin replied that it was not her position “to spy on judges during a judicial election” and that “it was repeatedly emphasized to me that I was not to engage in political activity involving the courts.” She added that her only monitoring task was to maintain a list of each judge’s cases that were approaching the 180-day deadline for disposing of cases. Hearing her response, Tormey and Voninski “became visibly angry,” and Tormey “directed [her] to ‘get out of [his] office!’”.

She alleged that she was thereafter subject to various adverse employment actions, including a reassignment to an office requiring a four hour commute and a demotion from Chief Clerk.

The judges and court personnel raised a qualified immunity defense, appealing from the district judge's denial of their motion for summary judgment. 

The Second Circuit's discussion squarely confronted the First Amendment issues.  First, the Second Circuit made clear that Morrin's claim is her "First Amendment right  not to be pressed into participating in partisan political activities." (emphasis added).  The court stated that such a right "draws its decisional basis not from the Garcetti/Connick/Pickering trilogy," as the Defendants had claimed, but from decisions such as Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), Branti v. Finkel, 445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (1976).   "In short, the issue in this case is whether the Plaintiff could be retaliated against based on her political affiliation (or non-affiliation), not whether she could be retaliated against based on any protected speech."

Second, the court found that Morin did not fit into the policymaker exception to the Elrod/Branti/Rutan trilogy.  While she did not have civil service protection, she "is not authorized to speak in the name of the Defendants or other policymakers, cannot reasonably be perceived as a policymaker, does not influence government programs, and is not responsive to partisan politics," and indeed, is prohibited by New York statute from engaging in political activities during working hours.

Thus, the case is less about judicial immunity than about the First Amendment rights of government, including judicial, employees.  The opinion is a brief 15 pages with sufficient facts and involving a choice between doctrinal "lines," so it would be a great basis for a class exercise.

RR

(h/t Nate Treadwell) [image of map of Onondaga county in New York via].

DADT: The Supreme Court and the Status Quo

As expected, in a brief order on Friday the United States Supreme Court has refused to vacate the Ninth's Circuit's Stay of District Judge Virginia Phillips' injunction against enforcement of the military's "don't ask don't tell" (DADT) policy regarding "homosexuality" in the military on the grounds that it is unconstitutional.

Justice Kagan did not participate in the Supreme Court's deliberations.

Meanwhile, initial descriptions by WaPo regarding a soon-to-be released 370 page report by a Pentagon study group support a conclusion that eliminating DADT would not impede government interests:  "More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the "don't ask, don't tell" policy would be positive, mixed or nonexistent."  

RR

[image "Navy Nurse" circa WWII via]