Author Archive for gerard-magliocca

The Medicaid Issue

posted by Gerard Magliocca

I think this might be my last Affordable Care Act post until June–no promises though!

One problem is that we could end up with a situation where five Justices conclude that the Medicaid provisions are invalid even though there is no majority on the Spending Clause or severability points. In other words, three Justices could say that the individual mandate is invalid, it is severable, and that the Medicaid provisions are unduly coercive.  Two other Justices could say that the individual mandate is invalid, that it is not severable, and not reach the Medicaid issue.  The result would be–the Medicaid provisions go down the tubes.

All aboard the runaway train!

  March 29, 2012 at 5:59 pm   Posted in: Supreme Court   Print This Post   No Comments

It’s All Fun and Games Until Somebody Loses an Eye

posted by Gerard Magliocca

This is another guest post from Professor Elizabeth Weeks, with apologies to her that I’m unable to get her account to work.

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After three straight days, six hours, plus extra innings on the Medicaid issue, the Justices and litigants got a little punchy, as Nicole observed.  A few of my favorite exchanges:

On severability, statutory interpretation, and textualism:

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?

Read the rest of this post »

  March 29, 2012 at 4:51 pm   Posted in: Supreme Court   Print This Post   No Comments

Fools Rush In . . .

posted by Gerard Magliocca

How is the Administration’s decision to bypass en banc review in the Eleventh Circuit looking now?

Unless, of course, this is part of a diabolical scheme to lose the case and run against the Supreme Court this Fall.

  March 28, 2012 at 10:11 pm   Posted in: Supreme Court   Print This Post   4 Comments

The “Theory” of Preemptive Opinions

posted by Gerard Magliocca

Both of my books discuss the rare phenomenon of a “preemptive opinion” by the Supreme Court.  It would be stretch to call this classification a theory, because there are so few examples.  (It’s hard to have a cataclysmic event theory).  Nevertheless, the Affordable Care Act litigation is now perched on the edge of joining this select group.

Here are the classic preemptive opinions:

1.  Worcester v. Georgia (1832)

2.  Dred Scott v. Sandford (1857)

3.  Pollock v. Farmers’ Loan and Trust Co. (1895)

4.  A.L.A Schechter Poultry Corp. v. United States (1935)

The first thing to note about these cases is that they are not all “evil” or “wrong.”  Some are and some are not.  Thus, calling an opinion preemptive is not a comment on its merits.

What do these cases share in common?

1.  They were all about high-profile political issues (the Cherokee Removal, slavery, the federal income tax, and the National Industrial Recovery Act).

2.  They all invalidated (partially or entirely) those policies as unconstitutional, and became a big part of the next presidential campaign.

3.  They all could have (and probably should have) avoided the constitutional question that they decided.  (This is hard to summarize in a blog post, but the Anti Tax Injunction Act was at issue in Pollock, for example).

4.  They all were exceptionally broad opinions.

5.  They all invented a new way of conceptualizing either federal power or fundamental rights to reach the desired result.

6.  They all came right before or right after a party realignment.

We cannot yet say that 2012 will see another entry into this Hall of Fame, but the wall is primed for the handwriting.

 

 

 

  March 28, 2012 at 1:23 pm   Posted in: Supreme Court   Print This Post   One Comment

Justice Kennedy’s “Heavy Burden of Justification”

posted by Gerard Magliocca

This is a post on behalf of Professor Elizabeth Weeks at the University of Georgia Law School, whom I invited to join us but is having trouble getting her essay up here.

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The Respondents’ hour of argument over the constitutionality of the individual mandate this morning was divided between Paul Clement, representing the twenty-six state plaintiffs, and Michael Carvin, representing the National Federation of Independent Businesses (NFIB) and four individual members of that organization.  Media attention rightly has focused on the remarkable occasion of a majority of states challenging the constitutionality of a federal law in the Supreme Court.  The individual and association plaintiffs have not made headlines, except for the irony of the lead individual plaintiff declaring personal bankruptcy, due to unpaid medical bills, during the pendency of the appeal.

At first blush, it is not immediately apparent what interest states have in the individual mandate.   The mandate is enacted under federal law, carries a federal tax penalty for noncompliance, and will be enforced by federal authorities.  Medicaid certainly impacts state’s interests, but that’s tomorrow’s argument.  Bear in mind that the only way that the states were properly before the Court today – their ticket to the Big Dance – was the presence of the NFIB and individual plaintiffs.  The Fourth Circuit, on Virginia’s go-it-alone challenge to the individual mandate, dismissed the Commonwealth for lack of standing.  The state plaintiffs rode into the courthouse on the individuals’ and association’s coattails.

The further irony of this posture is that the essential constitutional argument against the individual mandate turns on the power of the federal government with respect to states, not with respect to individuals.  Or so it seemed until Justice Kennedy began questioning the litigants today.

On a visceral level, the individuals’ and association’s objections to the mandate seem straight-forward:  They assert a right to be left alone, a right not to be told how to spend their money, a right not to enter any particular commercial transaction.  Post-Lochner, however, economic liberties do not receive robust protection, and government intrusions on them are subject only to low-level scrutiny, which the individual mandate likely would survive.

Personal autonomy and medical decisionmaking claims also unavailing because the mandate does not require individuals to receive any particular medical treatment.  Nor does the ACA require individuals to seek medical care the health insurance policies that they purchase; it merely requires the purchase of health insurance.  In fact, from a risk-pooling perspective, it is all the better if individuals purchase health insurance policies but do not actually use them.

Accordingly, individual rights claims, while politically salient and arguably sympathetic, seemed like losing constitutional arguments.  ACA challengers instead claimed that the mandate is unconstitutional because Congress exceeded the scope of federal enumerated powers vis-à-vis states’ reserved powers.  But what interest do private individuals and entities have in maintaining the federalist structure of government?

One answer is that the very purpose of diffusing power between a central government and separate sovereign states is to protect individual rights; hence, structural issues necessarily are individual rights issues.  Justice Kennedy, writing for the majority in Bond v. United States, noted that “an individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable.  Fidelity to principles of federalism is not for the States alone to vindicate.”  Although involving a very different statute and a very different sort of injury, Bond infuses the Tenth Amendment with cognizable individual rights.

Several of Justice Kennedy’s questions bring the underlying individual rights objections to the health insurance mandate the forefront.  He repeatedly expressed concern that the mandate effects a “fundamental” change in the relationship between the federal government and individuals and thus requires a “heavy burden of justification.”  He observed that the mandate operates as an unprecedented “affirmative duty to go into commerce.”  He compared the mandate to the no-duty rule in torts and urged that “the reason this is concerning is because it requires the individual to do an affirmative act.”  Summarizing his understanding of the U.S. Government’s argument, Justice Kennedy questioned Clement about the relevance of the “person who is sitting at home in his or her living room doing nothing” to the health insurance system.

Later, during Carvin’s argument, Justice Breyer tried to shift focus away from the individual rights issue and back to the scope of federal power:  “So I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, but simply whether those decisions of that group of 40 million [uninsured] people substantially affect the interstate commerce that has been set up in part through these other programs.”

The “heavy burden of justification” that Kennedy would demand seems to be effectively no-scrutiny review for federal interference with individual rights.  The individual and association plaintiffs, by asserting commerce or taxing power challenges to the individual mandate, effectively elevate their libertarian objections from easily overcome rational-relation scrutiny to effectively no scrutiny at all.  If a federal law exceeds enumerated powers, Congress may not enact it, no matter how good its reasons.  By contrast, a substantive due process challenge would at least allow Congress to justify its reasons for infringing on otherwise constitutionally protected rights.

  March 27, 2012 at 10:02 pm   Posted in: Supreme Court   Print This Post   No Comments

Ineffective Assistance of Counsel

posted by Gerard Magliocca

When I listened to the audio of today’s argument, my first thought was “Why is the Government letting a 1L argue this case?”

Oh, wait–that was Donald Verrilli, the Solicitor General.  He stumbled over his words, reached for a glass of water after 45 seconds, and couldn’t grab the lifelines thrown to him by friendly Justices. What a terrible job.  (On top of the fact that yesterday he got “tax” and “penalty” confused.)  It reminds me of the story about one of FDR’s early SGs who was so bad that some of the Justices informally advised the White House that they’d better get somebody else if they wanted to win.

On the substance, I’ll have more to say soon.

  March 27, 2012 at 6:14 pm   Posted in: Supreme Court   Print This Post   3 Comments

The Income Tax Cases and Jurisdictional “Waiver”

posted by Gerard Magliocca

On the issue of whether the Anti-Tax Injunction Act is jurisdictional or an affirmative defense, I would note that in Pollock v. Farmers’ Loan and Trust Co. (the 1895 cases striking down the federal income tax statute as unconstitutional), the Court concluded that the United States waived the Anti-Tax Injunction Act bar.  Pollock described that as a jurisdictional waiver, which makes no sense, but if the Act is not really jurisdictional then it can be waived. History repeating itself?

  March 27, 2012 at 9:19 am   Posted in: Supreme Court   Print This Post   2 Comments

What Anti-Tax Injunction Act?

posted by Gerard Magliocca

Well, the initial press accounts of today’s argument are:  ”We’re deciding the merits of the case.”  Part 1 of a preemptive opinion–check.  Tune in tomorrow to see if part 2 comes through.

UPDATE:  I think it’s hilarious, by the way, that the mainstream media reports seem to equate “jurisdictional” with “obscure.”  (i.e., “Obscure 1867 law will not stop health care challenge.”).

  March 26, 2012 at 12:27 pm   Posted in: Supreme Court   Print This Post   One Comment

Bingham on Federalism

posted by Gerard Magliocca

Federalism was not high on John Bingham’s agenda.  While he supported that structual concept, for most of his career states’-rights was synonymous with slavery and secession.  Nevertheless, I have found two areas where Bingham took positions that should be of interest to modern constitutional lawyers.

The first is that he supported a limited version of what we now call the “anti-commandeering” doctrine, which was articulated by the Supreme Court in Printz. In an 1869 speech, he rejected a proposed bill imposing federal enforcement obligations on a State Governor by saying:

“[I]f there is anything settled under the Constitution of the United Stats this is settled: that whatever rights are conferred, whatever duties are enjoined under the Constitution of the United States upon the Government of the United States they are to be executed, put in force, carried out by its own executive, legislative, or judicial officials without asking the consent or concurrence of any man of any State exercising the functions of a State official.”

Now this statement does not cover statutory duties imposed by Congress (i.e. enforcing federal gun control laws), but the idea expressed here certainly is consistent with the concerns identified in the anti-commandeering cases.

The second provocative argument that Bingham made was that there was a constitutional right to local government.  In 1871, he opposed a bill imposing tort liability on counties or municipalities because that could bankrupt them:

“There can no more be a State under the Constitution and laws of the several States of the Union without the corporate organization of counties or parishes therein than there can be a United States under the Constitution of the United States without organized States; because the counties in the several States are integral parts of the States, just as the States of the Union are integral parts of the nation.  If you destroy either you destroy the whole fabric.”

An article on whether there should be a federal constitutional right to local government is one that I keep thinking about, and this comment may motivate me to write up that idea. Many Supreme Court cases either presuppose the existence of local government (e.g., local control of schools) or rest on the notion that localities should be free of undue state interference with respect to the regulation sensitive subjects (Romer).  A leading criticism of Huey Long’s regime in Louisiana, about which I have written, was that he largely abolished local government there.  And if the benefits of federalism are clear in a large and diverse country, they should be equally clear in a large and diverse state.  There is an incongruity in saying that California can run everything from Sacramento, or that Albany can abolish the Mayoralty of New York City if the Legislature does not like the Mayor if the State Constitution permits that, when the same cannot be done by Congress to those States.  What this right should consist of is another matter, but it strikes me as an exceptionally important question.

  March 24, 2012 at 9:29 am   Posted in: Constitutional Law   Print This Post   No Comments

The Chief Justice on Strike

posted by Gerard Magliocca

In reading about the impeachment of President Johnson, I came across this nugget. Article One, Section Three of the Constitution says that “The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside.”

Suppose, though, that the Chief Justice just refuses to show up because he disapproves of the impeachment. Can the Senate trial go forward?  If so, how?  You could impeach and remove the Chief Justice, of course, but that might take a long time.  Suppose, on the other hand, that the Chief Justice is ill and cannot attend the President’s impeachment trial.  Can an Acting Chief Justice preside?

Just wondering . . .

 

 

  March 21, 2012 at 9:44 pm   Posted in: Constitutional Law   Print This Post   3 Comments

The Affordable Care Act Symposium

posted by Gerard Magliocca

We were thinking of doing a live blog on the audio of the health care arguments next week, but instead we’ve invited several scholars to offer their thoughts on the arguments more generally.  Tune in on Monday, Tuesday, and Wednesday for all of the instant analysis!

  March 20, 2012 at 3:36 pm   Posted in: Supreme Court, Uncategorized   Print This Post   No Comments

Today’s Supreme Court Opinions

posted by Gerard Magliocca

Justice Scalia wins points in my book for starting his dissent in Martinez v. Ryan with “Let me get this straight”

It is also interesting that Justice Sotomayor and Justice Kagan appear to have endorsed the “congruence and proportionality” standard set forth in Boerne by not joining footnote 1 of Justice Ginsburg’s dissent in Coleman v. Ct. of Appeals of Marlyand.

  March 20, 2012 at 11:45 am   Posted in: Uncategorized   Print This Post   3 Comments

Minimum Turnout Requirements

posted by Gerard Magliocca

I am now up to February 1868 in the Bingham biography (the impeachment of Andrew Johnson), and writing this book is definitely the intellectual equivalent of climbing a mountain.  With the Reconstruction section nearly done, I thought that I would make an observation about one quirky aspect of that period.

The Second Reconstruction Act was, as far as I know, the only time in federal law (or maybe in American law) where an election needed a certain level of turnout to be legitimate. Congress provided that the elections for the state constitutional conventions (and elections on the constitutions proposed by those conventions) in the ten ex-Confederate States that had not ratified the Fourteenth Amendment only counted if half of registered voters voted.  When this threshold proved hard to meet, Congress eliminated this requirement in the Fourth Reconstruction Act one year later.

Many foreign elections have a minimum turnout requirement to ensure that an adequate portion of the electorate backs the government or policy at issue.  I wonder if states should take a look at this mandate for initiatives or referenda.

  March 19, 2012 at 7:14 pm   Posted in: Election Law   Print This Post   No Comments

What do Convention Delegates Do Besides Eat?

posted by Gerard Magliocca

In the looming train wreck that is sometimes called the Republican National Convention, there is an argument being made by the Santorum and Gingrich folks that goes something like this:  ”Sure, Romney has X delegates.  But only some of those delegates are legally bound to vote for him.”  As a result, many of them can vote their conscience on the first ballot.

Suppose that I am one of those legally bound delegates and I choose to vote for someone else or just don’t vote on the first ballot. What’s the remedy?  Can I be prosecuted under state law?  Sued for damages?  Does “legally bound” means that I can abstain but just not vote for someone else?  Or is my vote counted whether I vote or not?  If so, what exactly am I there for?

Calling all election law experts . . .

  March 15, 2012 at 7:40 pm   Posted in: Current Events   Print This Post   6 Comments

The Constitutionality of Rent Control

posted by Gerard Magliocca

There is a cert petition pending before the Supreme Court that attacks the constitutionality of New York City’s rent control policy as a taking under the Fifth and Fourteenth Amendments.  The theory, I gather, is that tenants in some apartments have an option to renew their lease every few years and get to designate who gets to take over the lease if they choose not to, which amounts to a permanent “occupation” of the landowners apartment at a below-market rate.  On its face, it sounds like a good vehicle for a ruling on the issue.

I recall a long time ago looking for cases that raised Third Amendment claims, and the most interesting one I found was a challenge to rent control back in the 1940s where the building owner tried to argue that “quartering” should be understood to include more than just soldiers.  This does raise the question of whether the Third Amendment is about limiting the presence of the military in our lives or constitutes a special kind of constitutional taking–forcing somebody to live in our property that we don’t want there.  Third Amendment scholars–awake!

  March 15, 2012 at 6:24 pm   Posted in: Property Law   Print This Post   3 Comments

The Real Story of Lawrence v. Texas

posted by Gerard Magliocca

As I get older, I find that when it comes to things legal it’s getting harder to be astonished.  But I was amazed to read the account in The New Yorker about Dale Carpenter’s new book on the factual background and litigation history of Lawrence v. Texas.  I had no idea that the reality of the case was so different from the impression given by the opinion, and I’m eager to read the book, which you can find here.

  March 14, 2012 at 1:03 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   2 Comments

Lead Plaintiff in the Individual Mandate Litigation has Unpaid Medical Bills

posted by Gerard Magliocca

This article explains why you should choose carefully when you bring constitutional litigation.  Someone who went bankrupt and stuck the rest of us with unpaid medical bills is not the greatest vehicle for this case.

  March 10, 2012 at 7:43 pm   Posted in: Constitutional Law   Print This Post   7 Comments

The Establishment Clause? Rubbish!

posted by Gerard Magliocca

“The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated.”

Queen Elizabeth II (aka “Defender of the Faith”), the other day.

  March 10, 2012 at 4:59 pm   Posted in: Current Events   Print This Post   No Comments

Blogging Potpourri

posted by Gerard Magliocca

I will be offline for the next week, as I’m giving a talk on Bingham in Sacramento. This is part of the “Bring Bingham to the Masses” tour, if by masses you mean law schools. I had a terrific time at Cumberland Law School last week, and will be at McGeorge Law School this week.

An unrelated point. I was hoping to “live blog on tape” the same-day audio of the oral arguments on the constitutionality of the individual mandate. It now appears, though, that the Court will not release same-day audio. A tirade about the Court’s lack of transparency may be coming from me soon.

  March 7, 2012 at 3:58 pm   Posted in: Uncategorized   Print This Post   2 Comments

NFL Bounties

posted by Gerard Magliocca

The revelation about the bounty system that the New Orleans Saints had for hits that knocked opposing players out games brings up a point about transparency in regulation.  People seem very upset about what the Saints did, but ask yourself this.  What’s the difference between a rule that says you get, say, $1,000 for injuring somebody and a more general policy that says “We love those kinds of hits, and we take that into account when we make contract decisions or hand out special bonuses to players.”

The answer is that the only difference is that one is clear and the other isn’t.  That’s important though. There are many contexts in which we show respect for certain values by not rubbing your nose in the fact that an exception is being made.  At least that’s the lesson that I take the Court’s affirmative action cases in Grutter and Ricci. Assigning numbers or slots to people based on race is offensive, but saying that race is a factor in a holistic decision is not.

Fans understand that football is violent and that players are sometimes trying to hurt somebody.  That just don’t want to know that too clearly.  Because that would be wrong.

 

  March 6, 2012 at 12:26 pm   Posted in: Current Events   Print This Post   4 Comments

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