Tagged: Constitutional Law

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Stanford Law Review Online: Dahlia v. Rodriguez

Stanford Law Review

The Stanford Law Review Online has just published a Note by Kendall Turner entitled Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent. Turner argues that the Ninth Circuit has an opportunity to make an important change to the rules governing the application of First Amendment protections to the speech of public employees:

In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this behavior: after learning that certain suspects were not yet under arrest, he allegedly urged his employees to “beat another [suspect] until they are all in custody.”

After some delay, Dahlia reported his colleagues’ conduct to the Los Angeles Sheriff’s Department. Four days later, Burbank’s Chief of Police placed Dahlia on administrative leave. Dahlia subsequently filed a 42 U.S.C. § 1983 action against the Chief and other members of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights.

She concludes:

Dahlia offers the Ninth Circuit an opportunity to overturn Huppert and articulate a narrow understanding of Garcetti. This narrow understanding accords with the reality of public employees’ duties—for the duties they are actually expected to perform may differ significantly from the responsibilities listed in their job descriptions. A narrow reading of Garcetti is also essential to ensuring adequate protection of free speech: The answer to the question of when the First Amendment protects a public employee’s statements made pursuant to his official duties may not be “always,” but it cannot be “never.”

Read the full article, Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent at the Stanford Law Review Online.

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Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.

He concludes:

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.

Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.

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Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

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Starting to work beneath the surface of the Medicaid holding

Ok, folks, you read it here first.  In December, I stated that I thought the Court would be inclined to solidify the coercion doctrine but would be likely to uphold the Medicaid expansion.  I am still parsing the way in which the Court performed this legal novelty, because, as I noted yesterday, even though there were seven votes holding the Medicaid expansion to be coercive, five votes upheld Congress’s power to create the expansion but basically severed the remedy for noncompliance, thus effectively upholding the expansion while also expanding the coercion cause of action.  Though I was surprised at which justices were willing to agree that Tenth Amendment limits exist on conditional spending (Breyer? Kagan?), I was not surprised that the Court expressed its federalism project through the vehicle of Medicaid’s expansion.

Although this was the first time the Court has struck down federal spending legislation as coercive, the Court still has not given us a theory to understand how it will decide future coercion cases.  The Court refused to define coercion beyond assessing the Medicaid expansion as being “beyond the line” where “persuasion becomes coercion.”  (p. 55)   We do have two points of clarification, though.  First, Florida’s brief was clearly persuasive to the Chief Justice, because he bought the states’ argument that too much money could be taken away if the states do not comply with the Medicaid expansion.  This clarifies an aspect of South Dakota v. Dole’s coercion dicta, which could be read to mean either that Congress has offered too much money or that Congress threatened to take away too much money.  Here, the Court accepted that Congress can offer the money for the Medicaid expansion, but it took issue with the fact that the Medicaid Act gives HHS the power to take away all Medicaid funding.  So, Congress can offer a lot, it just can’t threaten to take it all away.

The second point of clarification is that the Court is willing to apply the Tenth Amendment as a limiting principle to conditional spending legislation under this newly solidified coercion doctrine based on the New York v. U.S. notion of “political accountability” (which I highlighted during oral arguments).  But, the opinion relies on prior federalism opinions such as New York and Printz, which are heavy on dual sovereignty and light on cooperative federalism.  Political accountability does not provide a framework for understanding how future coercion claims might play out.[more after the jump]   Read More

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Preliminary thoughts on today’s decision splitting the proverbial baby

Today, Chief Justice Roberts truly wore King Solomon’s crown. He managed to split the issue with regard to both the “individual mandate” requiring all Americans to have health insurance coverage by 2014 as well as the expansion of Medicaid making all Americans up to 133% of the federal poverty level eligible for Medicaid coverage. The Medicaid aspect of the decision is particularly confusing, given that one must count the votes twice to understand what has happened.

First, seven of the justices (Roberts, Breyer, Kagan, with Roberts writing in the majority; Scalia, Kennedy, Thomas and Alito, with Scalia writing for the joint dissent) voted that the Medicaid expansion was unconstitutionally “coercive” under South Dakota v. Dole. So, the first vote as to whether Congress has the power to require states to expand Medicaid was answered with a no; this is impermissibly coercive because the states have too much to lose if all of their Medicaid funds are at stake. This is the first time the Court has ruled that federal spending legislation is impermissibly coercive.

But, the second question is whether that historic vote for impermissible coercion means the Medicaid expansion fails in its entirety. [more after the jump] Read More

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Initial Thoughts on the Stolen Valor case

Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment.  This is an important First Amendment opinion with lots of points for discussion.

The Stolen Valor Act makes it a misdemeanor to “falsely represent oneself as a recipient of military honors.  The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.

I will just note a few things that captured my attention after a first read:

Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements.  In particular, he relies heavily on the ability of counterspeech to flush out the truth.  In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors.  Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.

Read More

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Pre-postmortems

I was fortunate to hear Justice Ginsburg’s speech at the ACS National Convention on Friday evening, during which she reiterated her position about the value of dissents (to signal how Congress could change the law [think Ledbetter], and to make a point for historical purposes [think Gonzales v. Carhart]).  Of course, everyone in the audience was abuzz that Ginsburg was hinting at a dissent in Florida v. HHS, even though many were Court watchers who know better than to act as Supreme Court soothsayers. 

Every day brings more public speculation about the future of PPACA, and everyone seems to be making contingency plans.  This phenomenon may speak more to the unpredicability of the Roberts Court than it does to the merits of the arguments.  The current Court has been willing to revisit precedent, tweak it, sometimes even overrule it, and such willingness makes outcomes difficult to predict.  I also wonder if this speaks to the undertheorization of the Rehnquist Court’s federalism revolution (with nods to Dan and Paul over at prawfsblawg).  After all, Lopez is really a summary and categorization of existing commerce power precedent with a traditional state power overlay.  The commerce power has a long history of interpretation, including the seminal “plenary power” description from Chief Justice Marshall.  But, little tells us how the Roberts Court will read the Commerce Clause. 

This is even more true for the spending power question in the case.  The spending power is so undertheorized it basically has no theory.  The Dole test for conditional spending is merely a Rehnquist-style summary and categorization of prior spending precedent, but none of that precedent provides a theory either, unless you believe the contract analogy from Pennhurst rises to the level of theory.  The power to spend also has no early, foundational Marshall interpretation like Commerce or Necessary and Proper.  Given that the federal government lacked significant ability to spend until the Sixteenth Amendment was ratified in 1913, the lack of early precedent is unsurprising.  But, the first case to provide a heuristic (U.S. v. Butler ) merely affirmed that the Hamiltonian view of the power to spend was correct, that spending is an enumerated power.  Not only did that case avoid expressing a theory for interpreting the General Welfare Clause, it went on to limit Congress by the Tenth Amendment, thus arguably producing a self-conflicting result.  With no underlying theory, the federalism questions and topic-specific healthcare questions stand on a house of cards.

So, why all the pre-postmortems?  Maybe because we still haven’t figured out what most advanced countries did a long time ago – we all do better when we are all well.  I was speaking with someone from Scotland recently, and he was befuddled by the fight over achieving universal health insurance coverage in the United States.  He asked a question that should have been rhetorical, “Isn’t healthcare a good thing?”  If we haven’t decided that healthcare is both essential and good for all of our citizens, then no amount of preparation will facilitate the actual postmortems.

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Stanford Law Review Online: Discrimination, Preemption, and Arizona’s Immigration Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Lucas Guttentag entitled Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View. The author discusses the upcoming Supreme Court ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070. He argues that discrimination must be a crucial consideration in the Court’s review of the federal preemption challenge brought by the United States:

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.

But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws. In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws.

He concludes:

While the precise force and scope of the Civil Rights Laws with regard to non-legal resident aliens remain undetermined, and Arizona claims to be penalizing only undocumented immigrants, defining the federal interest solely through the lens of immigration regulation and enforcement is still too narrow. Federal law is not only about federal immigration enforcement—it is equally about preventing discrimination. Measuring state laws only against the intricacies of federal immigration statutes and policies misses this essential point.

Some Justices may recognize the broader non-discrimination interests presented in the federal government’s preemption claim. And even if the pending challenge does not enjoin any or all of the S.B. 1070 provisions, civil rights challenges will more directly raise the rights of immigrants, their families and communities. But that eventuality should not obscure the importance of understanding that the federal values transgressed by S.B. 1070 and similar laws encompass both immigration and anti-discrimination imperatives.

Read the full article, Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View by Lucas Guttentag, at the Stanford Law Review Online.

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Pondering the vehicle for change

I have just returned from the perennially-satisfying Health Law Professors Conference at ASU (where it was hot enough to singe your eyebrows).  For folks interested in any aspect of healthcare law, this conference is highly recommended; the panels are strong on substance, the people are unfailingly collegial, and the event is bound to be near you at some point, as it moves to a different law school each June.  This year I shared a panel entitled “Theories of Health Reform in the United States” with three excellent speakers, including CoOp co-guest blogger David Orentlicher (Rights to Health Care in the United States: Inherently Unstable)Abby Moncrieff  (Healthcare Federalism, Healthcare Rights, and the ACA), and Christina Ho (Recursivity and Health Reform in the US: An Application of Niklas Luhmann’s Essays on Self-Reference). 

I gave my talk the hilariously vague title “Healthcare as a Vehicle for Constitutional Change” when I submitted the abstract many months ago.  It turned out, though, that this title was both useful and not a red-herring.  I presented elements of an essay on Post-Reform Medicaid, including a point I mentioned here in December that the United States has not told a consistent story about Medicaid to the Court this term.  In Douglas v. Independent Living Center, the Solicitor General articulated a deferential stance toward the states, a position consistent with longstanding states’ rights concerns in the Medicaid program.  On the other hand, the federal government has advocated a very broad view of federal authority under the spending power to modify and expand Medicaid in Florida v. Health and Human Services. Adding to the confusion, Congress has acted in ways that are contradictory regarding Medicaid throughout the program’s history, and those conflicting attitudes have been accentuated by the executive branch’s dissonant litigation strategies this term. 

I posited that these competing visions make it difficult for the Court to get the decision in Florida v. HHS “right.”  If the United States cannot present a cornerstone of the universal health insurance design in a coherent manner, then the Court’s job is much harder in both Medicaid cases this term.  It seems that the healthcare aspect of Florida v. HHS has been lost before the Court, making healthcare a sub-optimal “vehicle for constitutional change.”  The pithy decision issued in Douglas provides an example.  While the Breyer majority articulated concern for Medicaid as a program in enunciating the reasons to allow HHS to exercise primary jurisdiction, the Roberts dissent only described Medicaid as “spending legislation” and jumped right to federalism, spending power questions, and clear statement rules.  It is easy to see how the Court could jump to the big constitutional questions in Florida v. HHS.  (It also happens that the result in Douglas aligns with a study published in Health Affairs regarding political affiliation and attitudes toward healthcare access, but that is probably a topic for anther day.)

The Medicaid expansion is predicted to cover 16 million new lives; added to the existing 69 million Medicaid enrollees, Medicaid would become the nation’s largest health insurer covering some of our most medically-fragile and poorest citizens.  Much is at stake on the ground, but healthcare may not be a very good vehicle for the change that could be approaching.

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Stanford Law Review Online: Health Care and Constitutional Chaos

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Eric Segall and Aaron E. Carroll entitled Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act. Professor Segall and Dr. Carroll explore the constitutional and practical arguments for upholding the ACA:

The Supreme Court’s decision on the constitutionality of the Affordable Care Act (ACA) will likely be handed down on the last day of this year’s term. If the Court finds that the ACA—either in whole or in part—violates the Constitution, the health care industry will be shaken to its core. And, no matter what legal justification the Court uses to invalidate the ACA, the structure of constitutional law will be severely undercut. The resulting medical and legal chaos will be expensive, divisive, and completely unnecessary. Nothing in the text, history or structure of the Constitution warrants the Court overturning Congress’s effort to address our national health care problems.

They conclude:

The leading academic proponent of a decision overturning the ACA has conceded that the law is an attempt to “transform a sixth of the national economy.” Whatever can be said about that economic plan as a policy matter, there can be no question that (1) it is a regulation of commerce among the states; and (2) there is no textual or precedential constitutional principle that suggests Congress can’t use all reasonable tools to regulate that commerce, including the use of an individual mandate.

Read the full article, Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act by Eric Segall and Aaron E. Carroll, at the Stanford Law Review Online.