Wednesday, May 22, 2019
The State of New York and a host of other states and cities yesterday filed suit in the Southern District of New York to halt the implementation of President Trump's "conscience protection" regulations for health-care providers.
We posted on the regs here. In short, they require health-care providers and state and local recipients of certain federal funds to permit employees to opt out of providing health services if they have a religious objection to those services.
New York's lawsuit follows San Francisco's, filed earlier this month.
The plaintiffs in the New York case allege that the regs exceed statutory authority, violate federal law, are arbitrary and capricious, and violate the Spending Clause, the separation of powers, and the Establishment Clause.
Plaintiffs focus on the expansive definitions in the new regs that sweep beyond the administration's statutory authority, and HHS's ability under the regs to cut off vast amounts of federal funding to states and local governments who do not comply with the "conscience protections." They allege that they'll be harmed in their ability to enforce their own laws (which, among other things, require health-care providers to provide certain services, irrespective of religious beliefs) and in their receipt of federal funds.
In a bit of what-goes-around-comes-around, the plaintiffs draw on the Court's ruling in NFIB v. Sebelius--the Medicaid expansion portion of the ruling--to argue that the sheer amount of threatened federal funds under the new regs turns the condition on federal funding for state and local governments (compliance with the "conscience protections") from pressure into compulsion, in violation of federalism principles. They also contend that the conditions are vague, and that the administration impermissibly imposed them without prior congressional action in violation of the separation of powers. (This latter point is based on HHS's apparent ability to withhold funds not authorized for withholding under existing federal law.)
Tuesday, February 12, 2019
In a word: No. At least not without specific congressional authorization.
Remember that President Obama tried a similar move with the cost-sharing reduction (CSR) payments to insurance companies under the Affordable Care Act. The CSR was designed to reimburse insurance companies for keeping costs low for certain purchasers on the exchanges. But Congress zero-funded the CSR line-item. The Obama Administration went ahead with payments, on the theory that CSR was part-and-parcel of the well integrated ACA--and payments were therefore allowed, even if not specifically authorized.
But when the (then-Republican) House of Representatives sued, the district court ruled the payments unlawful. (The court wrote that "[t]he [ACA] unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers. Such an appropriation cannot be inferred. None of the Secretaries' extra-textual arguments--whether based on economics, "unintended" results, or legislative history--is persuasive.") The court stayed an injunction pending appeal. But the Trump Administration reversed course.
In doing so, the Trump Administration adopted the same legal analysis as the district court that struck the payments. (Again: this was a switch from the legal position in the Obama Administration.) In language that's telling and relevant to the wall question, the Trump DOJ wrote this:
There is no more fundamental power granted to the Legislative Branch than its exclusive power to appropriate funds. And the Executive Branch cannot unilaterally spend money that Congress has not appropriated. Congress's repeated choice to deny funding for CSR payments is thus Congress's prerogative. When Congress refuses to appropriate money for a program, the Executive is required to respect that decision.
So, no: By the Administration's own reckoning, and by district court precedent, absent specific congressional authorization to do so, President Trump cannot move money around to fund the wall.
Saturday, June 16, 2018
The Seventh Circuit this week denied the Justice Department's request to stay the nationwide injunction against the Department in Chicago's sanctuary cities case. The order says that the Seventh Circuit will wait until the Supreme Court rules in Trump v. Hawaii, the travel-ban case, before ruling on the issue.
Recall that a three-judge panel of the Seventh Circuit upheld a nationwide injunction issued by the district court against the Department enforcing two conditions imposed by the Attorney General on the DOJ-JAG/Byrne Grant program. DOJ filed a motion to stay the nationwide injunction pending appeal, and the full Seventh Circuit agreed to review the issue.
This latest round of jockeying came when DOJ sent a letter this week to the Seventh Circuit saying that if the Seventh Circuit didn't rule on its motion to stay the nationwide injunction by COB on June 18, DOJ would take it up with the Supreme Court. The Seventh Circuit interpreted the letter as a motion for an immediate ruling on DOJ's motion for a stay, and rejected it. The court said that it expected that the Supreme Court would have something to say about this in the travel-ban case, and it would await word from the high Court before ruling here.
The ruling makes it likely (or certain?) that DOJ will try to take this (the nationwide injunction) to the Supreme Court as early as Monday.
Wednesday, August 16, 2017
The State of California earlier this week joined Chicago and San Francisco in suing the federal government over DOJ's "sanctuary cities" policy. Our latest post, on Chicago's suit, is here.
California argues that its laws do not violate Section 1373 (they only limit detention beyond the scheduled release date in certain circumstances and require notification to the detainee of any ICE detention or interview request); that only Congress (and not DOJ) has authority to impose the Section 1373-condition on federal grants; that the condition doesn't provide clear notification to the state; and that DOJ's condition is unconstitutional (because it could require detention for 48 hours, and could violate the Fourth Amendment).
Tuesday, August 8, 2017
The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.
Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).
Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."
As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.
The case is in the Northern District of Illinois.
Friday, August 4, 2017
Attorney General Jeff Sessions announced yesterday that DOJ will "tak[e] . . . into account" a city's "sanctuary" status in determining eligibility for the Department's new Public Safety Partnership program. AG Sessions accompanied the announcement with letters to Albequerque, Baltimore, San Bernadino, and Stockton--cities that had expressed an interest in participating in the PSP--asking for information related to their sanctuary policies.
The move adds a new program, the PSP, to some other Justice programs that are also unavailable to "sanctuary" jurisdictions--those jurisdictions that restrict their officers from communicating with federal authorities regarding the citizenship or immigration status of individuals in detention. In this way, the move is yet one more attempt by DOJ to encourage jurisdictions to drop their sanctuary policies.
AG Sessions initiated the PSP program in June. It provides training and technical assistance to local jurisdictions "to address violent crime in their communities." The Department initially selected twelve jurisdictions to participate in the program.
Earlier, the Department moved to clamp down on "sanctuary" jurisdictions by requiring them to drop their sanctuary policies as a condition of qualification for certain Justice grants. (In particular, DOJ said that jurisdictions that failed to comply with Section 1373 would not qualify for certain DOJ and DHS grants. Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.") DOJ adopted this policy as a way to implement President Trump's facially overbroad sanctuary cities executive order.
AG Sessions didn't go so far as to categorically deny sanctuary jurisdictions from the PSP program, however. Instead, he said that "[b]y taking simple, common-sense considerations into account, we are encouraging every jurisdiction in this country to cooperate with federal law enforcement." Specifically:
In determining which jurisdictions to select, the Department will ask interested jurisdictions the following questions:
1. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States?
2. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien?
3. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date, in order to permit DHS to take custody of the foreign national?
AG Sessions tied the PSP program to the no-sanctuary-policies condition by arguing that sanctuary cities threaten public safety: "By protecting criminals from immigration enforcement, cities and states with so-called "sanctuary" policies make all of us less safe." AG Sessions presumably drew the connection at least in part in order to satisfy the relatedness requirement for federal conditioned spending programs under South Dakota v. Dole. (Under South Dakota, a federal conditioned spending program must (1) be in the "general welfare," (2) state the condition clearly, (3) be related to the condition, and (4) not turn pressure to participate into compulsion to participate.)
Friday, June 5, 2015
The D.C. Circuit this week upheld a key authority of the EPA for enforcing the Clean Air Act against federalism and congressional authority challenges. The per curiam ruling rejected other challenges to EPA action, as well, and means that the case is dismissed. The ruling leaves intact the EPA's authority to designate geographic areas as noncompliant with the Clean Air Act and to take certain enforcement actions.
The federalism challenge in the case, Mississippi Commission on Environmental Quality v. EPA, sought to exploit the plurality's ruling in NFIB, where the Court held that Obamacare's Medicaid expansion couldn't condition a state's entire Medicaid grant on the ACA's Medicaid expansion. But the court rejected that argument, easily distinguishing Medicaid expansion and the EPA's actions here, as described below.
The case tested EPA's authority to designate certain geographic areas as noncompliant with the Clean Air Act's National Ambient Air Quality Standards. A variety of plaintiffs lodged complaints, but only two, Wise County, Texas, and the Texas Commission on Environmental Quality, raised constitutional claims. They argued that the EPA's designation of Wise County as a nonattainment area violated the Tenth Amendment and due process, and exceeded congressional authority under the Commerce Clause.
The court rejected these arguments. The court ruled that the Clean Air Act "authorizes the EPA to promulgate and administer a federal implementation plan of its own if the State fails to submit an adequate state implementation plan." The court said that's not commandeering, because the federal government isn't requiring the state or state officers to implement the federal plan.
The court also ruled that the Clean Air Act's sanctions for noncompliance--re-direction of a portion of federal highway funds to federal programs that would improve air quality--were not unduly coercive under NFIB. That's because they don't come close to the size of a state's federal Medicaid grant, and because it wasn't a new program that came as a surprise to the states. Indeed, the condition has been on the books (and states have taken advantage of it) for decades.
The court said that the Clean Air Act's delegation of authority to the EPA to designate areas as noncompliant is well within Congress's Commerce Clause authority. The court said that dirty air blows across state lines, causing a substantial effect on interstate commerce, and that the activities in Wise County that led to the dirty air themselves have a substantial effect on interstate commerce.
Finally, the court rejected a due process claim that the EPA administrator for Region 6 was biased. The court said that the administrator's past professional activities and statements did not rise to the level of an "unalterably closed mind" or an inability or unwillingness "to rationally consider arguments."
As mentioned, the court rejected other arguments against the EPA's authority, too, mostly under the APA.
Wednesday, April 29, 2015
Florida Governor Rick Scott filed suit yesterday against the federal government arguing that its move to take away the state's Low Income Pool money compels the state to expand Medicaid under the Affordable Care Act--all in violation of the anti-commandeering principle and the "gun to the head" principle in NFIB v. Sebelius.
We posted on Florida's LIP and the constitutional issues here. The Center for Budget and Policy Priorities just put out a very helpful backgrounder here.
In short, LIP is a federal program that pays health-care providers for uncompensated care for the poor. Medicaid, and the ACA's Medicaid expansion, pays directly for health care for that same population.
The lawsuit argues that the federal government threatened to take away the state's LIP money unless the state expands Medicaid under the ACA--and that this amounts to unconstitutional coercion in violation of federalism principles and the Tenth Amendment under NFIB.
But the case is a sham. The federal government doesn't appear to be strong-arming Florida into expanding Medicaid as much as it appears to prefer to spend money directly on health insurance for the poor instead of paying for uncompensated care for them. That's a policy choice that the federal government can make. States have no entitlement to LIP money, or to any particular federal approach to providing health care for the poor. And when the feds take away LIP funds, Florida's choice is clear: figure out a way to cover care for the poor, or don't.
Governor Scott claims that this isn't a real choice, because the state can't afford to let the poor go without health insurance. If that's right, he can implement his own program, or he can expand Medicaid. This hardly seems like compulsion.
The case is obviously politically, and not constitutionally, motivated, and probably has little chance of success on the merits. "Probably," because so many thought the same thing about NFIB, before the Court got a hold of it.
There's another commonality with NFIB: Governor Scott hired Paul Clement to represent him.
Tuesday, April 1, 2014
In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge. The court reversed the preliminary injunction entered by the district judge.
There are several layers of complexity in the case. There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.
Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages. As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option. The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association (“COFA”) with the United States, may enter the United States and establish residence as a “nonimmigrant. The "COFA aliens" are in the third category of state option. At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded. It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.
Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent. As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review." In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review." What standard should apply to a "hybrid case" such as Basic Health Hawai‘i, in which a state is following a federal direction? Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai‘i is merely following the federal direction set forth by Congress under the Welfare Reform Act."
Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.
Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice.
I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai‘i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawai‘i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai‘i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai‘i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai‘i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai‘i, that should be deemed responsible.
While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.
April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)
Sunday, November 17, 2013
Neil H. Buchanan (GW) argues at the Jurist.org that the President should just pay the nation's bills if Congress fails to increase the debt ceiling.
Buchanan summarizes an argument that he and Michael Dorf made over three articles last year in the Columbia Law Review--one, two, and three--that the President should do the least constitutional damage if ever faced with a trilemma involving taxing, spending, and a debt ceiling that don't add up.
Buchanan and Dorf argue that Congress would create this trilemma if it failed to increase the debt limit: Congress would have authorized a particular level of taxation; Congress would have authorized a higher level of spending; and Congress would have capped the debt limit at a level lower than authorized spending. All three are congressional acts that the President must enforce, but if the President enforces any two, he necessarily violates the third.
So: what to do?
Buchanan and Dorf argue that the constitution requires the President to take the action (1) that exercises as little legislative power as possible and (2) in a way that allows Congress to later enact legislation that can undo his actions, if it so desires.
Those two criteria mean that the President should, even must, violate the debt limit. That's because violating the debt limit (but complying with the taxing and spending measures passed by Congress) is the choice that's least legislative in nature, and the one that Congress can later undo (by enacting taxing and spending measures that add up).
Buchanan explains why this solution is novel--but also why it's right:
Bizarrely, the shared assumption among Republicans and Democrats alike has been that the president must simply default on the government's spending obligations, if he is ever faced with a trilemma. . . .
The reason that is so bizarre is that it simply presumes that duly-enacted spending laws can be ignored by the president. They cannot. We are not taking about choosing to increase or decrease future levels of spending, after all. We are, instead, contemplating having the president refuse to honor legal claims for payment from the federal government, choosing not to pay the government's legal obligations, in full, on the date that they are due.
Thursday, June 20, 2013
The United States Supreme Court today decided United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. It held the provision unconstitutional and affirmed the Second Circuit opinion, which the Circuit had refused to review en banc, and which conflicted with a Sixth Circuit opinion.
The Court's opinion, authored by Chief Justice Roberts, is relatively brief - - - a mere 15 pages - - - first acknowledges that the provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 would clearly violate the First Amendment's compelled speech doctrine if it were a direct regulation of speech. In terms of an attached condition to spending - - - the unconstitutional conditions doctrine - - - Roberts explained that
the relevant distinction that has emerged from our cases is between conditions that define the limits ofthe government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.
He elaborated on this distinction by contrasting Regan v. Taxation With Representation of Washington, decided in 1983 and upholding a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation, with FCC v. League of Women Voters of California, decided in 1984, holding unconstitutional a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds.
The opinion then both distinguished and relied upon Rust v. Sullivan, an opinion that was central to oral argument and the briefs. The Court noted that the Government's only positive precedent was Holder v. Humanitarian Law Project, but held that it was essentially inapposite. Instead, although the lines could be difficult to draw, the Court held that
the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.
The opinion closed by reciting West Virginia Bd. of Ed. v. Barnette's famous quote:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
If some will not be surprised about Roberts' position given his expressions at oral argument, even fewer will be surprised by Justice Scalia. Dissenting, Justice Scalia - - - never a fan of unconstitutional conditions doctrine - - - joined by Justice Thomas finds Barnette a "distraction" from the real issues. He criticizes the majority's distinction between central and not, but also finds that there is no coercion. He analogizes to "King Cnut’s commanding of the tides" to conclude there is "no compulsion at all," simply "the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject." Of course, the majority, by considering whether or not a condition is central, essentially held that the price of admission was simply not "reasonable." But for Scalia, requiring an "ideological commitment" as a condition to government funding should be acceptable, and the "real evil" of the opinion is a type of floodgates argument: "One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons." More broadly, he extends his argument beyond funding, stating that while one may be a Communist or anarchist, members of the legislature, judiciary, and executive are bound by the Constitution to take an oath affirming it, Art. VI, cl. 3.
Thursday, December 6, 2012
Emily J. Martin, Vice-President and General Counsel at the National Women's Law Center, published an American Constitution Society Issue Brief that argues that the Supreme Court's ruling last summer on the ACA's Medicaid expansion in Nat'l Fed. of Ind. Business v. Sebelius does not threaten Title IX.
Recall that the Court ruled in NFIB that Congress exceeded its authority in enacting the Medicaid expansion component of the ACA. The Medicaid expansion provision provided generous federal financial assistance for states that expanded their Medicaid programs to reach those up to 133% of the federal poverty level. Some states balked, arguing that this was way too heavy-handed, given the size of Medicaid and their reliance on it. In other words, states argued that Congress couldn't force them to choose between expanding their Medicaid programs and foregoing all federal Medicaid funding.
The Supreme Court agreed. Chief Justice Roberts wrote for a plurality that Medicaid expansion was a new program, not just an addition to the existing Medicaid program, and that the sheer size of Medicaid--and the threat of its entire loss--made the ACA's Medicaid expansion unduly coercive on the states. At the same time, the plurality wrote that Congress could condition receipt of incremental and additional Medicaid funds under the ACA on a state's expansion of Medicaid.
Some thought that this approach to Congress's spending power threatened other federal spending programs, in particular Title IX. Title IX prohibits public and private educational institutions that receive federal funds from discriminating on the basis of sex. Some suggested that under NFIB, Title IX, like Medicaid expansion, might be unduly coercive, because it might require an educational institution to forego all federal funding if it discriminates against women.
Martin says this is wrong. She writes that NFIB doesn't even apply Title IX and private educational institutions: NFIB's approach--and the Spending Clause approach generally--is concerned about coercion of states, not private actors. As to states, she argues that unlike the ACA's Medicaid expansion, Title IX operates to limit the termination of federal funds "to the particular program . . . in which . . . noncompliance has been so found." 20 U.S.C. Sec. 1682. In short, noncompliant state institutions wouldn't stand to lose their entire federal educational budget (as they could stand to lose their entire Medicaid budget under the ACA); instead, they'd lose only that portion tied to the sex discrimination.
Martin says that Title IX is protected from NFIB for another reason: Congress also had authority to enact Title IX under Section 5 of the Fourteenth Amendment. She argues that this belt on top of the Spending Clause's suspenders ensures that Title IX is well within congressional authority.
Thursday, June 28, 2012
A sharply divided Supreme Court today upheld key provisions in the Affordable Care Act (the "ACA," or Obamacare). The upshot is that five Justices (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) held that universal coverage (or the individual mandate) is upheld, and that a three-Justice plurality (Chief Justice Roberts and Justices Breyer and Kagan) held Medicaid expansion is upheld in a somewhat weaker form. A different five Justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) held that the commerce clause did not support universal coverage (but for different reasons).
The ruling means that universal coverage stands, and Medicaid expansion stands, although in a somewhat weaker form.
Chief Justice Roberts wrote for the majority; by issue:
Taxing Clause. A five-Justice majority held that Congress could enact the universal coverage provision (also called the individual mandate) under the taxing authority. Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that the tax penalty for failing to purchase health insurance was a valid tax.
First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the "prohibitory" financial punishment in Drexel Furniture. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by the IRS through the normal means of taxation--except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.
Op. at 35-36. The majority was untroubled that the tax penalty could be a "tax" for taxing authority purposes, but a non-"tax" for Anti-Injunction Act purposes: Chief Justice Roberts wrote that Congress itself enacted the AIA and could therefore itself draft around it (which it did here); but Congress's taxing authority may support congressional action whether or not Congress calls its action a "tax."
Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that universal coverage exceeded the taxing power.
Commerce Clause. A five-Justice majority concluded that the Commerce Clause did not support congressional authority to enact universal coverage, but for two different reasons. Chief Justice Roberts, writing for himself alone, wrote that universal coverage amounted to regulating before entrance into the market for health services--i.e., regulating someone who's "inactive." (And Chief Justice Roberts didn't buy the government's claim that the maarket for health insurance was integrally connected to the market for health care.) Chief Justice Roberts wrote that universal coverage was unprecedented and unsupported by the Court's cases. (Chief Justice Roberts justified reaching the issue--even though the case could be (and was) decided on the taxing power alone--because, he said, the government designed universal coverage first as a regulation and only secondly (or alternatively) as a tax.)
Justices Scalia, Kennedy, Thomas, and Alito took a harder line, arguing that Congress here went too far, because it first sought to create commerce, and then to regulate it.
Medicaid Expansion. Chief Justice Roberts wrote for himself and Justices Breyer and Kagan that Medicaid expansion as-is under the ACA--in which a state declining to participate in Medicaid expansion would stand to lose its entire pot of federal Medicaid money--was unduly coercive. But the same plurality held that Medicaid expansion could be saved by simply reading the statute to mean that a declining state could lose only the additional federal money that would have come with the expansion.
Justices Ginsburg and Sotomayor wrote separately to argue that Medicaid expansion as-is under the ACA did not violate the Constitution.
Justices Scalia, Kennedy, Thomas, and Alito dissented, writing that Medicaid expansion was flatly unconstitutional.
June 28, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Spending Clause, Taxing Clause | Permalink | Comments (3) | TrackBack (0)
Tuesday, April 3, 2012
In case you missed it, here are President Obama's full comments on the ACA litigation in response to a reporter's question yesterday at a joint press conference, with President Calderon of Mexico and Prime Minister Harper of Canada:
With respect to health care, I'm actually--continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close call.
I think it's important--because I watched some of the commentary last week--to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.
The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it. There are tends of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.
Millions of senior are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.
So that's just the part that's already been implemented. That doesn't even speak to the 30 million people who stand to gain coverage once it's fully implemented in 2014.
And I think it's important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint--that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. . . .
As I said, we are confident that this will be over--that this will be upheld. I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.
April 3, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Spending Clause, Supreme Court (US), Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Thursday, March 29, 2012
The Supreme Court yesterday seemed just as skeptical--and maybe even more so--of the Medicaid expansion as it was of the universal coverage, or individual mandate, on Tuesday. The line-up was similar, with Justices Ginsburg, Breyer, Sotomayor, and Kagan appearing to favor the government, and Justices Scalia and Alito leaning against. (Justice Thomas was again silent, but his opposition to Medicaid expansion is all but certain.) The difference in yesterday's argument: Chief Justice Roberts and Justice Kennedy seemed even more strongly against Medicaid expansion than against the individual mandate.
The core issue in the case, of course, was coercion: Did the federal government coerce the states by conditions a states' entire pot of Medicaid funding on its acceptance of the expansion?
Chief Justice Roberts made some very strong statements against the government's position that expansion isn't coercion, especially worrying about federalism and "intrusion on the sovereign interests of the State." Transcript p. 59; see also Transcript p. 34. This latter question, the one on page 34, also suggests that the federal government "having attached the . . . strings, [states] shouldn't be surprised if the Federal Government isn't going to start pulling them." On balance, though, the Chief Justice seemed to lean against expansion.
Justice Kennedy seemed worried most about accountability--how citizens could sort out who to blame if they didn't like the policy. He recognized that there's no "workable" test based on accountability (p. 64), but he also seemed to want to find a place for accountability in the analysis. He was also concerned about "practical coercion" (my phrase), discussed immediately below.
In the end, there seemed one predominant theme among those who appeared to lean against the expansion: If the government can't conceive of a state declining to participate in the expansion--because the money's too sweet, because the program's too good, or because the individual mandate would have a hard time working without it--it seems like coercion. This kind of plain-spoken, practical coercion might just drive the case.
Others apparently favorable to the expansion argued that this practical coercion must mean that a program can be unconstitutionally coercive only because it's too good--a plainly absurd conclusion, and therefore not a reason to overturn the expansion.
Several other themes emerged:
Complete Funding. The federal government pays the lion's share of the expansion in the first few years--a point made early by Justice Kagan. To those favoring the government, this makes it look like a pure federal gift to the states for the purpose of expanding Medicaid. But Paul Clement, representing the states, argued that it was both the size of the Medicaid program and the expansion that makes this coercion: because of Medicaid's size, state's can't afford to lose it; because of the generosity of the expansion, states can't say no to it.
Related: There was concern among those apparently leaning against the expansion about why states could stand to lose all their Medicaid funding just because they don't agree to take funding for this incremental expansion. This issue relates to executive discretion, discussed below.
Related: Chief Justice Roberts seemed especially concerned that the federal government could later decrease the amount of its participation, after leading the states on with this nearly-completely-funded expansion, and leave states in an even more precarious situation--even more coercive.
Complete Overhaul. Justice Sotomayor asked if the federal government could simply scrap the whole program and start all over, why it couldn't add this incremental expansion. Clement said that nobody has a problem with certain existing Medicaid programs, and so it makes no sense to condition the whole program, including existing programs, on a state's willingness to sign on to the incremental expansion.
Politics. The politics played a minor role, but were there. Justice Ginsburg asked about the other half of states that may favor the expansion, and Justice Scalia helped point out that the states in this case--those opposing expansion--are headed by Republicans. In Clement's words: "There is a correlation." P. 21.
Spending Power. Clement tried to distinguish between congressional use of the spending power for objectives included in other portions of Article I, Section 8, and use of the spending power for ends outside of its Section 8 powers. It's not clear whether this position has enough traction to work its way into the Court's analysis, but it does revive a very old (but now well settled) debate over the scope of congressional spending power: Congressional spending power is most certainly not cabined by what it can do under other Article I, Section 8 powers. Clement's position seems to question that, even if only on the margins.
Taxes and Citizenship. Clement argued that the federal government is encroaching on state authority by taxing state citizens for a benefit that they don't want. The argument confuses state and federal citizenship, and didn't seem to get any traction with the Court. But Clement's related argument--that federal taxes to support Medicaid expansion crowd out states' ability to tax their citizens for other purposes--did get some attention among opponents of the expansion.
Executive Discretion. Justice Breyer raised the point that the Secretary is bound by the APA in revoking all Medicaid funds for a state that declines to participate in the expansion, and that such a decision would be subject to rationality, or the arbitrary and capricious test. This point gained traction as the argument moved forward, but the Justices seemed to divide over the implications: Justice Breyer argued that this means that the Secretary isn't unbound in revoking all funds, and others pointed to the history of the Secretary's modest exercise of this authority; opponents of the expansion argued that the authority to revoke all funds is still there in the statute. SG Verrilli, of course, couldn't give assurances about how the Secretary would use the discretion, but suggested that the Secretary wouldn't revoke all Medicaid funding.
Accountability. Justice Kennedy raised the point about accountability: How can citizens understand the lines of accountability for a program that's so strongly encouraged by the federal government? Accountability is surely a consideration, but it's not clear how much, if at all, it'll turn this case. Justice Kennedy also said that any test based on accountability is "unworkable," but he seemed to search for a way to consider accountability within the coercion framework.
Practical Coercion. Again, Chief Justice Roberts, Justice Scalia, Justice Alito, and even Justice Kennedy at one point all pointed out, in only slightly different ways, that if the government can't conceive of a state saying no--because of the size of the program, or because how expansion fits with the individual mandate, or because Congress knew that states liked Medicaid so much and just assumed that all states would come on board--then that's coercion.
SG Verrilli wrapped up his argument with an appeal to liberty--the liberty of those who would be covered by Medicaid expansion to receive funded medical care. This was refreshing, but probably not anything that would persuade those who oppose the expansion based on the sovereignty of the states and federalism.
This case, like the universal coverage case, will likely turn on Chief Justice Roberts or Justice Kennedy or both. But here both seemed even more opposed to expansion than they were to universal coverage.
Wednesday, February 29, 2012
The Second Circuit's opinion earlier this month refused to grant en banc review to a panel decision that the so-called prostitution pledge for government AIDS/HIV funding is unconstitutional, Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v. United States Agency for International Development.
The denial of en banc review prompted a dissent authored by Judge Cabranes, and joined by Judges Raggi and Livingston, while Judge Rosemary Pooler wrote an opinion concurring in the denial of rehearing en banc.
At issue is a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq., providing:
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.
22 U.S.C. §7631(f). Note that the exceptions were added in the 2004 amendments to the Act, meaning that the act's provision falls most heavily on smaller NGOs.
The crux of the disagreement is whether or not the compelled speech aspect of the required statement makes it distinguishable from Rust v. Sullivan. The Second Circuit panel found this was a vital distinction - - - and indeed, it is a matter that the Court in Rust emphasized. The dissenters, as well as the Sixth Circuit, found that any such distinction is erased by the unconstitutional conditions doctrine which allows the organization to choose whether or not to apply for funds in the first instance.
As Judge Rosemary Pooler noted in her concurring opinion from denial of rehearing en banc, the doctrine is in a complex state of disarray. For those who teach, study, or litigate in this area, reconciling Rust v. Sullivan with Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), can be challenging - - - unless one resorts to easy and cynical canards about the differences between doctors and lawyers, or the Court's solipsistic concern for its own role when conditions are imposed. The "anti-prostitution" pledge cases could be a great vehicle for exploring the complexities, either as a scholarly project or as a class exercise.
The Second Circuit and the Sixth Circuit opinions also provide a circuit conflict, perhaps teeing up the Second Circuit case for Supreme Court review.
Tuesday, February 21, 2012
The Supreme Court issued an order today alloting oral argument time in the challenges to the Affordable Care Act--six hours of argument altogether. Here's how the argument time will be shared:
March 26 and 27
- On the Minimum Coverage Provision, the Solicitor General gets 60 minutes; respondents Florida, et al. get 30 minutes; and respondents National Federation of Independent Business, et al. get 30 minutes.
- On the Anti-Injunction Act, the Court-appointed amicus gets 40 minutes; the Solicitor General gets 30 minutes; and the respondents get 20 minutes.
- On Medicaid expansion, the petitioners get 30 minutes; and the Solicitor General gets 30 minutes.
- On severability, the petitioners get 30 minutes; the Solicitor General gets 30 minutes; and the Court-appointed amicus gets 30 minutes.
February 21, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Spending Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
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)
Wednesday, July 6, 2011
The Second Circuit today in a 2-1 opinion held unconstitutional the so-called prostitution pledge for government AIDS/HIV funding unconstitutional in Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v. United States Agency for International Development.
The prostitution pledge - - - actually an anti-prostitution pledge - - - is in Section 7631(f) of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. providing that no funds “made available to carry out this Act . . . may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution.” The Act also has a provision, unchallenged in this case, that prohibits funds made available to carry out the Act being used to “promote or advocate the legalization or practice of prostitution or sex trafficking.” The case was returning to the Second Circuit after being remanded to the district court judge, and the Circuit opinion affirmed the district judge’s finding that Section 7631(f) was an unconstitutional condition on the receipt of funding. The panel easily found that the plaintiffs had standing.
The panel concluded that the provision, as construed and implemented by the Defendant/Appellant agencies, falls well beyond what the Supreme Court and this Court have upheld as permissible conditions on the receipt of government funds. The panel reasoned that Section 7631(f) does not merely require recipients of Leadership Act funds to refrain from certain conduct, “but goes substantially further and compels recipients to espouse the government’s viewpoint.”
The panel rejected the government agencies’ expansive argument that all government funding requirements are insulated from constitutional constraints. Instead, the panel carefully considered Regan v. Taxation With Representation, 461 U.S. 540 (1983), FCC v. League of Women Voters of California, 468 U.S. 364 (1984); Rust v. Sullivan, 500 U.S. 173 (1991) and Services Corp. v. Velazquez, 531 U.S. 533 (2001), as well as the Second Circuit Velazquez and LSC-funding cases. In distinguishing these cases, the panel stated:
the Policy Requirement does not merely restrict recipients from engaging in certain expression (such as lobbying (Regan), editorializing (League of Women Voters), abortion-related speech (Rust), or welfare reform litigation (the LSC cases), but pushes considerably further and mandates that recipients affirmatively say something—that they are “opposed to the practice of prostitution,” 45 C.F.R. § 89.1. The Policy Requirement is viewpoint-based, and it compels recipients, as a condition of funding, to espouse the government’s position.
The panel further distinguished Rust by stating that "the Rust Court expressly observed that “[n]othing in [the challenged regulations] requires a doctor to represent as his own any opinion that he does not in fact hold.”" Rather," the grantee’s staff could remain “silen[t] with regard to abortion,” and, if asked about abortion, was “free to make clear that advice regarding abortion is simply beyond the scope of the program.”" Unlike under these regulations where the plaintiffs "must represent as their own an opinion—that they affirmatively oppose prostitution—that they might not categorically hold."
We do not mean to imply that the government may never require affirmative, viewpoint specific speech as a condition of participating in a federal program. To use an example supplied by Defendants, if the government were to fund a campaign urging children to “Just Say No” to drugs, we do not doubt that it could require grantees to state that they oppose drug use by children. But in that scenario, the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.
The panel also noted that the mandated viewpoint was not universal: "the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate," in which "the differences are both real and substantive." By requiring the espousal of the government's position, the program prohibited important political speech.
[image:Title page and frontispiece of Harris's List of Covent Garden Ladies (1757 – 1795) - a directory of prostitutes in Georgian London, via]
Saturday, April 9, 2011
The passage of the Affordable Care Act in early 2010 has prompted a variety of constitutional challenges which we’ve covered extensively, including here and here. For ConLawProfs who like to frame their examinations around curent controversies, the Affordable Health Care Act provides an excellent opportunity.
A good background and refresher on federal power and federalism concerns is WVU College of Law Professor Gerald G. Ashdown 's article Federalism’s Floor, 80 Miss. L.J. 69, 74 (2010). Ashdown examines the Rehnquist Court’s movement toward limited federal power, and then attempts to explain why the federalism movement “seems to have bottomed out, or reached a floor on limiting the reach of federal power." In doing so, Ashdown frames his analysis with a discussion of several factors, including the “natural limits on the Court’s recent Commerce Clause, sovereign immunity, and Section 5 (of the Fourteenth Amendment) decisions; congressional use of the Spending Clause, and politics both outside and inside the Court.” Id.
First, Ashdown’s look at recent Commerce Clause cases brings his thesis into clearer focus. Most students of constitutional law are quite familiar with the decisions in United States v. Lopez and United States v. Morrison, cases which struck down federal enactments under a narrower application of the Commerce Clause. Students should be just as familiar with Gonzales v. Raich, a decision in which the court upheld the authority of Congress to regulate the intrastate production and use of marijuana under the aggregation theory of the Commerce Clause, best exemplified by the decision in Wickard v. Filburn. Ashdown writes that “Raich is a hard case, and although it did not necessarily produce bad law, it did produce weird, if not predictable, results—at least for federalism after Lopez and Morrison.” Id. at 77. Ultimately, Ashdown concludes that “[e]ven when the affecting commerce theory of Lopez and Morrison is relied upon, there seem to be practical and ideological barriers, illustrated by Raich, to limiting federal commerce authority. In other words, there are pragmatic barriers to further Court action restricting congressional power under the Commerce Clause.” Id. at 79-80.
Professor Ashdown turns next to the complex subject of sovereign immunity and the effect of Section 5 abrogation, writing that
[t]he combination of Seminole Tribe of Florida v. Florida, which held that Congress could abrogate state sovereign immunity only under Section 5 of the Fourteenth Amendment and not under the Commerce Clause, and City of Boerne v. Flores, interpreting Section 5 narrowly to disallow Congress from protecting “rights” more broadly than those identified by the Supreme Court, seemed to place substantial limits on the reach of federal authority over the states. Taken together, these cases mean that Congress only has Section 5 power to regulate state government and that the federal enactment must be a “congruent and proportional” remedy to a constitutional violation identified by the Court.
Id. at 80. Despite these barriers to expanded federal power, a more recent decision in Nevada Dep’t of Human Resources v. Hibbs, upheld the Family Medical Leave Act (FMLA) because the Act was a proportional and congruent remedy to the historical discrimination by states on the basis of gender. Next, Professor Ashdown surveys Spending Clause jurisprudence, beginning with the key case of South Dakota v. Dole, where the Court upheld the federal requirement that states accepting highway funds must enact twenty-one-year-old drinking age laws or suffer loss of funding. While it upheld the restriction, the Court took note of some limits on conditional spending. “The Court’s own spending jurisprudence thus provides another barrier to judicial tinkering with the federalism balance,” according to Ashdown. Id. at 93. Finally, Ashdown observes the effects of national political processes on some federalism issues that reach the courts. The federal partial-birth abortion ban illustrates Ashdown’s point. “The pro-life, conservative side that normally would align with restraints on federal power naturally supported the statute, and the pro-choice group who opposed the Act evidently was unwilling to challenge the use of federal authority, something liberals generally favor, . . . as social progressives would be extremely reluctant to give the federal courts . . . the opportunity to place further limits on federal commerce power.” Id. at 97-98. These “political checks,” Ashdown argues, operate in addition to judicial dynamics “as a practical floor on potential judicial inroads on federal power.” Id. at 98-99.
In the end, Ashdown observes that “the Supreme Court’s own jurisprudence has established a floor on shifting power to state governments,” and “[f]ederalism tends to get ignored in favor of first-order issues like abortion, gun control, and civil rights.” Id. at 103. Ashdown aptly foreshadows the litigation surrounding the Affordable Health Care Act - - - and possible "floor and ceiling" issues on forthcoming constitutional law exams.
with J. Zak Ritchie
[image: Inside the US Supreme Court building via]