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Author: Robert Schapiro

22

Return of the Necessary and Proper Clause (Just in Time for Health Care)

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  U.S. Const. Art. I, § 8.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty.  Legally, the arguments against the legislation lack merit.  As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance.  Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.

Rhetorically, however, the opponents’ arguments may have some appeal.  How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)?  Doing nothing is not commerce, the law’s opponents proclaim.  Can you make a federal case out of taking a nap?

The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.

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4

Immigration Federalism: Red and Blue

In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of “renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.

3

Red State Federalism

It is a great pleasure to be a guest blogger.  My current interests center around federalism.  My posts likely will as well.  Here goes.

Did a vision of progressive federalism die in the desert of Arizona?  No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.

In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism.  We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care.  Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism).  Climate change was not really a federal issue or really a state issue.  Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns.  Federalism functioned through the dynamic overlap and interaction of state and federal authority.  Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.

But where does this leave Arizona?  Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation.  Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism?  The answer is yes.

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