Constitutional Law Prof Blog

Court Allots Time in Health Care Reform Challenges

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.

March 28

• 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.

SDS

Plaintiffs and Government Move to Take Health Reform to the Supreme Court

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.

SDS

[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]

Second Circuit Rules "Prostitution Pledge" Unconstitutional

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."

Judicial conclusions of unconstitutional conditions that violate the First Amendment have become relatively rare.  The panel clarified that its holding is narrow:

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.

RR
[image:Title page and frontispiece of Harris's List of Covent Garden Ladies (1757 – 1795) - a directory of prostitutes in Georgian London, via]

 

On Floors, Ceilings, Federalism and Constitutional Law Exams: West Virginia Weekend

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.

RR

with J. Zak Ritchie

[image: Inside the US Supreme Court building via]

DOMA and Federalism Event at Indiana University School of Law

A "mini-symposium" on April 7, 2011, starting at 3pm, will feature a lecture on "One State's Challenge to the Defense of Marriage Act" by Maura Healey, Chief, Civil Rights Division, Massachusetts Attorney General's Office. 

Healy (pictured right) will be speaking about Massachusetts' successful constitutional challenge to section 3 of DOMA; Judge Tauro found that section 3 "offends" the Tenth Amendment reasoning that marriage is a quintessential matter of state, and not federal, power.

Healy's talk will be followed by a panel discussion, moderated by Steve Sanders, and including:

• Thomas M. Fisher, Solicitor General, State of Indiana
• Dawn Johnsen, Walter W. Foskett Professor, Indiana University Maurer School of Law, and former Deputy Assistant Attorney General, U.S. Department of Justice
• Brian Powell, Rudy Professor of Sociology, Indiana University College of Arts & Sciences and co-author of Counted Out: Same-sex Relations and Americans' Definitions of the Family
• Deborah Widiss, Associate Professor, Indiana University Maurer School of Law

More information about the event and its webcast available here.

RR

Judge Vinson Rules Health Care Reform Unconstitutional

Judge Vinson (N.D. Fla.) ruled today in State of Florida v. U.S. Dep't of Health and Human Services that the Patient Protection and Affordable Health Care Act was unconstitutional--in its entirety.  The ruling declared that the individual health insurance mandate exceeded congressional authority under the Commerce Clause and the Necessary and Proper Clause.  Judge Vinson wrote that because the mandate cannot be severed from the rest of the Act, the whole thing was unconstitutional.  We posted previously on the case--which was brought by governors or AGs in 26 states, two private citizens, and a business association--here and here.

In striking down the mandate, Judge Vinson ruled that the Commerce Clause only authorizes Congress to regulate activity, that failure to purchase health insurance is not an activity, and that there's nothing inherent or unique in the health care market or in the decision not to purchase health insurance that ties the failure to purchase health insurance to interstate commerce.

Judge Vinson emphasized throughout his analysis that the question--whether Congress can regulate a non-"activity"--was novel.  This alone, he ruled, did not make it unconstitutional.  But it seemed to put a heavy thumb on the scale in his analysis.  (He didn't seem troubled that other congressional acts upheld under the Commerce Clause were also "novel" when they first came to the courts: wheat production for home use in Wickard v. Filburn and home production and use of marijuana in Gonzales v. Raich, just to name two.  But he did write this about Wickard: "[B]efore Wickard was decided, it is likely that most people (including legal scholars and judges) would have thought it equally "ridiculous" to believe that Congress would one day seek (and be permitted) to regulate (as interstate commerce) the amount of wheat that a farmer grew on a small private farm for his personal consumption."  Op. at 47, n. 20.)

He also emphasized the unbridled power that would result if Congress could require individuals to purchase health insurance: if Congress could do this, he wrote, Congress could do anything--require us to buy certain cars, to buy certain bread, and even to buy broccoli.  These kinds of regulations exceed congressional authority, he wrote, because they run counter to the Framers' intent and to precedent and practice.

Judge Vinson was perhaps most emphatic in writing that the non-act of not purchasing health insurance had no effect on interstate commerce:

If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero.  Of course, any other figure multiplied by zero is also zero.  Consequently, [even the aggregate] impact must be zero, and of no effect on interstate commerce.

Op. at 50.  According to Judge Vinson, it would require "pil[ing] inference upon inference" to get from not insuring to the interstate economy, thus running afoul of the principle in U.S. v. Lopez. 

Judge Vinson wrote separately about the Necessary and Proper Clause.  He wrote that this Clause also failed to support the individual mandate, largely because the Commerce Clause didn't support the mandate:

The Necessary and Proper Clause cannot be utilized to "pass laws for the accomplishment of objects" that are not within Congress' enumerated powers.  As the previous analysis of the defendants' Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution.  To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established "outer limits" of the Commerce Clause and effectively remove all limits on federal power.

Op. at 62.

Judge Vinson ruled that the Medicaid expansion portion of the Act did not violate the Spending Clause.  He ruled that it clearly met the standards under South Dakota v. Dole and that it didn't unconstitutionally "coerce" the states.  (The states argued that the expansion coerced them into continuing their participation in Medicaid, even as the cost of participating became unsustainable.)

But he nevertheless ruled the entire Act unconstitutional, because, he wrote, the individual mandate wasn't severable from the rest of the Act.

Judge Vinson's ruling is now the second federal district court ruling that the individual mandate is unconstitutional.  (Judge Henry Hudson (E.D. Va.) issued the first ruling last month.)  There are also two federal court rulings upholding the constitutionality of the mandate.

SDS

Civil Rights Chief: State Courts Must Provide Access

Assistant Attorney General Tom Perez this week reminded state court chief justices and administrators of their obligation to provide "meaningful access" for individuals with limited English language proficiency.

The obligation comes from the conditional spending measures in Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq., and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. Sec. 3789d(c), both of which prohibit national origin discrimination by federal fund recipients, and E.O. 13166 (2000), which requires federal agencies to "work to ensure that recipients of Federal financial assistance . . . provide meaningful access to their [applicants with limited English proficiency]."  The Supreme Court ruled in Lau v. Nichols in 1974 that failure to take measures to provide access to individuals with limited English proficiency is a form of national origin discrimination banned by Title VI.

Perez also delineated some of the ways in which state courts are failing to meet their obligations: limiting the types of proceedings for which interpreter services are provided; charging interpreter costs to a party; and restricting language services to the courtroom (and not court offices and other court personnel).

Congress and the president effectively banned all discrimination against individuals with limited English proficiency in state courts through conditional spending (because all state courts receive some federal funding and thus accept the non-discriminatory condition).  Because state courts "contractually agreed" (quoting Lau v. Nichols) to the non-discrimination provisions as a condition of receiving federal funds, they are bound by them, notwithstanding state law to the contrary.  (As Perez writes, "The federal requirement to provide language assistance . . . applies notwithstanding conflicting state or local laws or court rules.")  As a conditional spending requirement, there is no Tenth Amendment problem.  See South Dakota v. Dole (stating the requirements for federal conditional spending programs).

But Congress could also almost certainly achieve this result directly if it wished--by outlawing discrimination in state courts under its Fourteenth Amendment, Section 5, authority.  The Supreme Court upheld just such a law in Tennessee v. Lane in 2004--Title II of the Americans with Disabilities Act, which outlawed discrimination against individuals with disabilities in access to the state courts.

SDS

Social Security: Questions about its Constitutionality on its Diamond Anniversary

The Social Security Act of 1935, spear-headed by Franklin Delano Roosevelt, turns seventy-five today. 

[image: President Roosevelt signing the Social Security Act, via].

But as Justice Cardozo said in 1937:

The Social Security Act (Act of August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. c. 7, (Supp.)), is challenged once again.

Although the Court upheld the Act in the 1937 cases of  Helvering v. Davis (which began with Cardozo's statement above) and in Steward Machine Company v. Collector of Internal Revenue Service, there are those who continue to argue it is unconstitutional, including Republican Congressperson John Shadegg. 

In service of that conclusion, Shadegg has sponsored the Enumerated Powers bill, which provides:

Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. The failure to comply with this section shall give rise to a point of order in either House of Congress. The availability of this point of order does not affect any other available relief.

Such a requirement does not seem problematic at first blush, although the Court could presumably find that Congress did not have power under the rational Congress articulated but nevertheless possessed authority pursuant to a different constitutional power.

RR

Cornyn, Kagan on Congressional Treaty Power

Among Supreme Court Nominee Elena Kagan's written responses to members of the Senate Judiciary Committee released on Friday was this exchange with Senator Cornyn on congressional power to enact legislation implementing a treaty:

[Question 4] Missouri v. Holland, 252 U.S. 416, 432 (1920), held that "[i]f a treaty is valid there can be no dispute about the validity of a statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government."

[Question 4a.] In your view, can Congress and the President expand or evade the scope of Congress's Article I powers by entering into a treaty requiring an enforcing law that would otherwise be unconstitutional [as exceeding congressional authority under Article I]?

Response: Missouri v. Holland held that Congress may enact a statute implementing a treaty pursuant to its authority under the Necessary and Proper Clause, even if Congress does not otherwise have Article I authority to do so, provided the statute does not violate a constitutional prohibition.

Emphasis added.

The exchange brings to mind debates even today about whether Congress can "exceed its authority" by enacting legislation under the General Welfare Clause--that is, whether Congress can do under the General Welfare Clause what it can't do under, say, the Commerce Clause.

Of course it can.  Madison and Hamilton waged this debate many years ago--Madison for the limited view, Hamilton for the expansive view--and the Court settled it in favor of Hamilton in 1936 in United States v. Butler. 

The issue for the General Welfare Clause (and also for congressional authority to implement a treaty) is not whether the political branches can "expand or evade the scope of Congress's Article I powers," as Senator Cornyn suggests.  Instead, the General Welfare Clause and the Necessary and Proper Clause (to implement a treaty) are themselves independent congressional powers.  That Congress could not achieve its goals under, say, the Commerce Clause just doesn't matter, because it can achieve them by other valid means. 

It's a separate question, of course, whether Congress should achieve the goals at all.  Senator Cornyn went on to ask about this--with respect to the Gun Free School Zones Act (overturned as exceeding the Commerce Clause in United States v. Lopez), the civil damages provision in the Violence Against Women Act (overturned as exceeding the Commerce Clause and Section 5 of the Fourteenth Amendment in United States v. Morrison), and the individual health insurance mandate in the recent health care reform legislation (yet to reach the Supreme Court). 

Could Congress achieve its policy goals in these areas by enacting a treaty and implementing it through legislation?  Surely, every bit as much as it could under its spending power.

Whether it should is a question for Senator Cornyn, not Nominee Kagan.

SDS

DOMA Unconstitutional: Massachusetts Federal District Judge Finds Section 3 of Defense of Marriage Act Unconstitutional

In two decisions today,  Commonwealth of Massachusetts v. HHS  and Gill v. Office of Personnel Management, United States District Judge Joseph Tauro held section 3 of the Defense of Mariage Act (DOMA) unconstitutional.

Section 3 of DOMA, 1 USC section 7, provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Thus, same-sex partners who are legally married pursuant to Massachusetts law are nevertheless not considered married for federal purposes.

In Commonwealth of Massachusetts v. US Dept of Health and Human Services, the Judge first found that the Commonwealth had standing to bring the lawsuit, noting that the federal "VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran," and that the "Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples." (Opinion at 21).  The Judge then merged the Tenth Amendment and Spending Clause challenges - - - "two sides of the same coin" - - - although specifically discussing and applying the classic spending clause case of South Dakota v. Dole. The Judge found that DOMA  "plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens," and applied First Circuit precedent regarding the test for a Tenth Amendment analysis. (Opinion at 28). Further, Judge Tauro  discussed the historical practice of marriage and family as being state, rather than federal matters, and noted:

That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty. For instance, in [United States v. ] Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”

Opinion at 32.  Thus, the Judge concluded that by enacting and enforcing DOMA, the federal government "encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment."  Opinion at 36.

In the companion case of  Gill v. Office of Personnel Management, (opinion available above), the Judge considered the challenge of seven plaintiffs who had been in same-sex marriages in Massachusetts and were denied federal benefits, including survivors’ benefits.  Judge Tauro outlined the plaintiffs arguments that the classification should merit strict scrutiny under equal protection clause doctrine, but held that the court “need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test,” because “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective, and that therefore DOMA violates the core constitutional principles of equal protection. Opinion at 21.

The Judge wrote that the Congressional House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.  

The Judge analyzed these interests finding them not legitimate, but not before noting that for "purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute." Opinion at 23. 

The Obama Administration's stance in defending DOMA has been watched closely; we discussed it here, and in the California litigation here.   According to Judge Tauro, in essence, the government now argued that "the Constitution permitted Congress to enact DOMA as a means to preserve the 'status quo,' pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage." Opinion at 27.  Judge Tauro also found that interest not legitimate, echoing some of the Tenth Amendment arguments in the companion case, Commonwealth of Massachusetts v. HHS, regarding the federal governments role - - - or lack of role - - - in marriage and family law.

The Judge also found that the 'status quo' rationale was not rationally served by DOMA:

The states alone are empowered to determine who is eligible to marry and, as of 1996 [the year DOMA was passed] no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one
woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.

Opinion at 32. Explicitly accepting the Plaintiffs’ argument, Judge Tauro, reasoned that "DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state sanctioned marriages into two, those that are valid for federal purposes and those that are not.” Opinion at 35.  Regarding the rational relationship argument, the Judge concluded that DOMA was based on "irrational prejudice" and therefore violated the equal protection clause as applicable to the federal government through the Fifth Amendment.

Thus, this federal district judge finds DOMA's section 3 unconstitutional, a ruling that will have great import for Massachusetts same-sex married couples and the state of Massachusetts, and which could be used persuasively in other states such as Iowa which allow same-sex marriage.

Whether or not the Obama Administration will appeal the ruling will be closely watched.

RR

Hospital Visitation and Decision-making

The Presidential Memorandum on Hospital Visitation seeks to insure that hospitals not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability, and guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected.  Obama noted that these problems have "uniquely affected"  "gay and lesbian Americans." 

The President and federal government have the power to accomplish such objectives, at least for hospitals that participate in Medicare or Medicaid programs, as a condition for receiving such funding. 

Establishing conditions for receiving federal funds is nothing new, of course.  

Recall Rust v. Sullivan, 500 U.S. 173 (1991), in which the Court upheld restrictions on projects receiving federal funds from providing or discussing abortions. 

Also recall Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) Inc., 547 U.S. 47 (2006), in which a unanimous Court upheld the Solomon Amendment that applied to universities, including law schools.  The law conditioned the receipt of federal funds such as grants and student aide, on allowing the military to recruit on campus notwithstanding any university or law school policies barring discrimination on the basis of sexual orientation by potential employers.

RR

Court Hears Arguments in Comstock

The Supreme Court on Tuesday heard oral arguments in U.S. v. Comstock, the case testing Congress's power under the Necessary and Proper Clause to authorize indefinite civil commitment of "sexually dangerous" persons beyond their prison term.  We've reviewed the case here, here, and here; the Fourth Circuit's opinion (holding that Congress lacks authority) is here; the Eighth Circuit opinion in U.S. v. Tom (holding that Congress has authority) is here.

The case involves Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 ("4248"), which authorizes the federal government to detain a federal prisoner designated as "sexually dangerous" beyond his or her prison term, potentially indefinitely.  (One of the respondents in the case received such designation on the day he was due for release.)

The government maintained throughout the litigation that Congress has authority based on the Necessary and Proper Clause alone--that such detention is "necessary and proper" to run the federal criminal justice system.  The government thus sees post-sentence civil commitment as part and parcel of its role as custodian of federal prisoners.

Respondents consistently argued that the Necessary and Proper Clause can only support one of Congress's enumerated Article I powers--and not a program that is authorized by one of those powers.  Respondents see post-sentence civil commitment as an entirely new exercise of power, divorced from the original prison sentence and the government's role as custodian, and no enumerated power (even with the help of the Necessary and Proper Clause) supports such commitment.

The core issue--and the focus of oral arguments on Tuesday--is the scope of the Necessary and Proper Clause.

Solicitor General Kagan sets out the government's position in this exchange with Chief Justice Roberts and Justice Scalia:

Chief Justice Roberts: Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted?  In other words, when the sentence is done?

General Kagan:  Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way --

Justice Scalia:  But you said no.  I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators.  And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying on.

General Kagan:  I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.

Transcript at 7-8.  Here's another exchange between Kagan and Scalia on the same point:

Justice Scalia:  General Kagan, you are relying on the Necessary and Proper Clause, right?  You say:  But necessary and proper doesn't mean it is necessary and proper for the good of society.  It means it is necessary and proper for the execution of another power that the Federal Government is given by the constitution.

Now why is this necessary for the execution of any Federal power? . . .  Why is it necessary to any function that the Federal Government is performing?  It has completed its performance of the function of incarcerating this individual until he's served his punishment.

General Kagan:  The Court has always said, Justice Scalia, that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers.  And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal--in that criminal justice system, are not released irresponsibly.

Transcript at 13-14.

Kagan argued that Congress adopted 4248 to solve a "transitional" problem: States's refusals or inabilities to accept or deal with sexually dangerous federal prisoners coming to the end of their federal sentences.  She relied upon two other long-standing federal statutes authorizing federal civil commitment--one for mentally ill federal prisoners and one for mentally ill acquities--both of which were designed to solve similar transitional problems. 

Kagan argued that the federal government would surely have the power to detain federal prisoners who contracted a disease (tuberculosis, in her hypothetical) while in federal prison beyond their prison sentence.  She argued that the government probably had a similar power to detain ex-military in a similar situation.  Both are based upon the government's special relationship with the detainees.  (See also Transcript pp. 22-23, exchange with Justice Sotomayor.)

Justices Scalia and Sotomayor seemed to search for an independent congressional authority, or special relationship, to support post-term civil detention, recognizing that the Necessary and Proper Clause traditionally complements enumerated powers, not federal programs that themselves are supported by enumerated powers.  Scalia added a federalism concern:  At one point, he questioned whether the government's position was a "recipe" for the federal government taking over everything; at another point, he raised the Tenth Amendment as a limitation on congressional authority over this area of traditional state concern.  Sotomayor added a civil liberties concern, asking whether the government could articulate any limits on its power to detain.  (Kagan answered that due process limited the government.)

Alan Dubois, for the respondents, argued that civil detention beyond the original prison term exceeded congressional authority largely for the reasons articulated by Justice Scalia in the quotes above.  Dubois argued that civil detention beyond the original term was a new act--not an extension of the government's power to run a criminal justice system--and therefore required independent Article I power.  The Necessary and Proper Clause--which acts only in conjunction with another enumerated power and alone doesn't authorize anything--was simply not up to the task.

Dubois distinguished the government's other civil commitment powers as directly related to its power to run a criminal justice system (and therefore directly supported by an enumerated power).  And he denied that the government would have power to quarantine or detain ex-prisoners who acquired a disease while in federal custody.

Dubois faced a line of questioning from Justice Breyer about the federal government's power to create mental health hospitals and, therefore, its authority to detain mentally ill individuals.  Justice Scalia supported Dubois by distinguished between Congress's power to fund and create such hospitals (which might be perfectly acceptable under the Spending Clause) and its lack of power to detain mentally ill individuals.

Dubois spent a good deal of time answering questions about alternatives to this bill--other ways that Congress might have achieved its goals.  For example, Dubois at several points argued that Congress would have had power to authorize prison terms or sanctions at the time of sentencing, but not after a prisoner had been released.  Here's an exchange with Justice Sotomayor:

Justice Sotomayor:  Could--what would happen if Congress said, as part of a sentence, a judge could incorporate a civil commitment finding and say:  You are going to serve X amount in jail, and Y amount, and then we are going to civilly commit you indefinitely, because as of today, I am finding you a sexual predator subject to a mental illness.

Would that be constitutional, and if not, why not?

Mr. Dubois:  Well, that would not be constitutional, Justice Sotomayor, because of the indefinite nature of the commitment.  You can envision a system--and we had that type of system in the '50s, '60s, and '70s--of indetermine [sic] sentencing, where--

Justice Sotomayor:  No, I--let's assume it incorporates all the protections of--this statute, subject to periodic review.

Mr. Dubois:  So if we have an indeterminate-type sentence where you--you get a sentence of ten years and you are periodically reviewed to see if you are safe to be released, of course that is constitutional.

Justice Sotomayor:  So it's constitutional because it's part of the sentence?

Mr. Dubois:  That's exactly right, Your Honor.  It's a part of the sentence.  It's part of the punishment for the crime which brought you into custody.

Transcript at 46-47.

Dubois similarly agreed with Justice Scalia that Congress might have achieved its goals through its spending power--that Congress could have funded state efforts to civilly commit sexually dangerous ex-prisoners.  Justice Stevens sounded frustrated with these lines and repeatedly brought the argument back to thisbill, helping Dubois move from formalistic positions on the way the bill was written to his core argument on the Necessary and Proper Clause. 

Chief Justice Roberts brought a helpful big-picture, practical perspective to the arguments, illustrated by this exchange:

Mr. Dubois:  Any time the Federal government is going to release these--a person they believe to be violent or dangerous, they are required to warn the Attorney General of the State within a certain period of time before their release.

At that point, I do believe it becomes a problem of the State polity.  If the State governor is going to be cavalier about that type of release, then I think the answer for that lies in the voters of that State, to say, no, we want you to take this problem seriously and --

Chief Justice Roberts:  Well, he's not going to be cavalier.  He's not going to have--he's going to say, don't do it.  This is a dangerous person, the Federal government, don't release him.

Mr. Dubois:  And he's--

Chief Justice Roberts:  And you want the Federal government to be in the position to say, well, we have to.

Mr. Dubois:  Exactly.  The Federal government has to, and at that point, the State must make the hard political decision.  Do we want to take this person on, spend the money necessary--

Chief Justice Roberts:  Well, it may be the Federal government's hard political position.  They are the person holding them, and the Attorney General is saying, don't release him, and then the Federal government is going to make the decision, well, we have to.

Mr. Dubois:  And so, in that sense, it is no decision at all because the Constitution requires that they be released.

Transcript at 39-41.

In all, the arguments seemed to set the stage for a ruling on the scope and breadth of the Necessary and Proper Clause--the argument that the government consistently put front and center, throughout the litigation.  Because the Court so rarely (if ever) rules on the precise contours of this clause alone, this could be a quite significant case on congressional authority.

SDS

State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"

Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program.  (Instead, under the provision, the federal government would pick up these additional costs.  Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.)  We most recently posted on this here.

From the letter:

In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power."  Congressional spending cannot be arbitrary and capricious.  The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program.  However, the power is not unlimited and "must be in pursuit of the 'general welfare.'"  South Dakota v. Dole . . . .  In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . .  It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens.  This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate.  The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.

This seems deeply confused on a number of points.  First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare."  From Helvering: 

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views.  We will not resurrect the contest.  It is now settled by decision.  United States v. Butler. . . .  The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general.  Where this shall be placed cannot be known through a formula in advance of the event.  There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.  This is now familiar law.

Next, the AGs ask too much of the "arbitrary" standard.  This is a very low standard, not requiring much.  Surely the Nebraska compromise cannot be "arbitrary."  This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise. 

Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise.  Nothing's conditioned here.

Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government.  As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.

The other points in the letter seem equally confused.  For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress.  (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.)  There's no Due Process problem here.  And any Equal Protection problem would get only rational basis review.  The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.

The AGs dropped the Port Preferences Clause claim.

SDS

Spending Clause, Unconstitutional Conditions, and Women's Health

What will health care reform mean for women?  If spending clause jurisprudence remains the same, the net result might be (further) infringement on women's constitutional rights.  

Nicole Huberfeld, a scholar and conlawprof who teaches and writes in both constitutional law and health care (including health care finance), has authored a new article which argues there is a "disconnect" between individuals (especially women) and the spending programs intended to benefit them.   Conditional Spending and Compulsory Maternity is available on ssrn and forthcoming in Illinois Law Review.

Huberfeld argues:

South Dakota v. Dole facilitated a disconnect that analytically separates the individual from the conditional spending program, a divide that has allowed Congress to impinge on individual rights when it could not otherwise do so using other enumerated powers. At a micro-level, the Court’s decisions have allowed government to burden the privacy right to obtain abortion by withholding funds in public healthcare programs. At the macro level, the power to place conditions on spending has created an end-run that has been quite successful, as exhibited by the multiple pure funding statutes and conscience clause funding statutes that result from the Court’s decisions in McRae and Maher. . . .

Currently, underlying doctrines such as the greater includes the lesser theory and the positive/negative rights theory tend to ignore the reality of the modern government, which wields influence through benefits. . . . . for now at least, the Dole test can facilitate drawing such boundaries if all of its elements are actively analyzed by the Court. The current focus on the federal-state relationship does not protect individuals in federal healthcare programs, nor does it particularly protect states. Though individual rights have not appeared to be particularly important to the majority of the Roberts Court, protecting the states through active federalism doctrine may be. . . . .  Congress can change this trend, in a microcosm, by eliminating the Hyde Amendment and other pure funding statutes as well as by balancing conscience clause funding statutes. Conscience clause funding statutes in particular would become potentially unconstitutional under a revitalized Dole regime, as the ability to affect private-pay patients through federal spending truly pushes the envelope of the spending power.

Huberfeld's analysis of Dole is especially compelling; it would be helpful to students looking at applications of Dole.  Her conclusion that the Roberts Court would be less friendly to constitutional challenges than Congress will be to eliminating limits on funding statutes remains to be seen.

RR

The Sunday Reader: Bagenstos on the Spending Clause

Professor Sam Bagenstos (Wash. U., visiting at Michigan) recently posted Spending Clause Litigation in the Roberts Court on ssrn.  (The article will come out in the Duke Law Journal in December.)  Bagenstos--who has written several very good articles on civil rights, with a focus on disabilities--produced an excellent review, a useful typology, and a rich analysis that draws on both judicial politics and constitutional law on the Spending Clause.  I highly recommend this piece.

Bagenstos's core thesis is that the Roberts Court is likely to limit Congressional Spending Clause authority indirectly--"through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes"--and not, as some expected, directly.  Bagenstos:

To the extent that the Roberts Court has a conservative agenda, and the liberal welfare and civil-rights state continues to be built on conditional spending legislation, the Court will have a strong incentive to limit that legislation.  But the Court is not likely to do so in the way some hoped and some feared the Rehnquist Court would--by imposing direct limitations on the kinds of legislation Congress has the power to pass under the Spending Clause.  Rather, the Court is likely to act indirectly--through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes.  Those doctrines have a strong pedigree in existing law, and they are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power.

Bagenstos thus argues that "the paradigm case for the Roberts Court's restriction of the spending power is not likely to be United States v. Butler," but rather the more recent Arlington Central School District v. Murphy (holding that the IDEA, as Spending Clause legislation, could not impose obligations on states unless Congress provided "clear notice.")

To get there, Bagenstos first argues that direct limitations on the Spending Clause--the "general welfare" limitation, the "nexus" limitation, and the "coercion" limitation--have no real teeth, and that they are unlikely to limit the Spending Clause under the Roberts Court.

He next argues that indirect limits will resonate much more with a conservative Roberts Court.  Here Bagenstos distinguishes between a "strong contract theory"--"that conditions on federal spending are not 'law,' but merely contractual obligations--and "weak contract theory"--"the requirement that federal spending legislation give states clear notice of the conditions"--and argues that "the Court is nearly certain to continue to implement the weak contract theory, and there is a chance (though not a big one) that it will adopt the strong contract theory."  Bagenstos's argument here is both political and doctrinal, thus offering a rich analysis and prediction on the near future of the Spending Clause.

You can read this piece for a good predictive constitutional argument with imortant policy implications.  Or you can read this piece for its analysis of the judicial politics of the Roberts Court and the Spending Clause.  Or you can simply read it for a useful typology and excellent review of Spending Clause doctrine and scholarship.  Whatever your interest, I highly recommend it.

SDS

Rahn on the Bailout

Richard W. Rahn, senior fellow at CATO, published an op-ed in the Washington Times this week arguing that the federal bank bailout is unconstitutional.  The arguments aren't new--and we've covered the issue here--but Rahn goes further: He ties the bailout to other "excesses" in our constitutional history, then to rights and to "living constitutionalism" in an argument for some unnamed version of originalism.  Rahn:

There have always been political pressures on the courts to read nonexistent things into the Constitution.  After President Franklin Roosevelt attempted to pack the Court to obtain approval for his "New Deal" excesses, the Court did not allow much of the new regulation and reinterpreted the commerce clause far beyond the original text.  This abuse of the commerce clause over the last 75 years is the source of many of today's economic problems.

In recent years, as the court's makeup has changed, there has been a slow drift back toward interpreting the Constitution on the basis of the original text and/or what appears to be original intent.  Those who are unhappy with this decision, rather than following proper procedures to amend the Constitution, now argue that judges should be appointed who will interpret the Constitution in light of "today's circumstances" and their own preferences and outcomes.  Advocates of the "living constitution" frequently advocate the addition of "active rights," such as the right to a home, free medical care, etc., as contrasted with "passive rights," such as freedom of speech, religion, press, assembly, the right to bear arms, etc.

"Active rights" force one person to provide for, or subsidize, another person, unlike "passive rights" which do not diminish another's liberty.  If you think the "government" should pay for your medical insurance, you are advocating that some other person should pay your bills. . . .

America's founding fathers clearly understood the dangers of "active rights," which is why they kept them out of the Constitution.  The American Republic can correct the occasional abuse of the Constitution, such as the bank bailout legislation, but it may not survive the wholesale ignoring of the original text by allowing judges to suddenly create "active rights." . . .

Earlier in the piece Rahn argues that the bailout will become a political problem (for supporters) and that the courts will rule the bailout unconstitutional.  But, he claims, the "Republic will carry on," because the political branches will then know that this kind of action is "impermissible."  (Ask your students how they'd plead a case in federal court challenging the constitutionality of the bailout.  What barriers do they face?  Can they get over them?)

I recommend the piece for your students.  Ask them to sort out Rahn's line of argument to see whether his reductio ad absurdum holds water: The bailout is an example of a constitutional excess; the bailout, as a constitutional excess, is perfectly consistent with other historical excesses and supported by the "living constitutionalism" school of interpretation; "living constitutionalism" gave us "active rights," which lack textual support in the Constitution (and thus, like the bailout, are unconstitutional); and therefore to avoid excesses like the bailout we must adopt some unnamed version of originalism.  Does this follow? 

SDS