Tagged: Constitutional Law


An additional thought on coercion

Recently I wrote about the coercion question posed by Florida et al. in the PPACA litigation.  I have a quick follow up thought: I wonder if those advocating a more robust read of coercion recognize that their position could backfire if the goal is broadening federalism protections.  An expanded coercion doctrine ostensibly would introduce the possibility of judicially enforcing states’ rights against the congressional power to spend.  But the states should not assume that they are the only parties that could enforce federalism principles.  Just last term in Bond v. United States, Justice Kennedy wrote that individuals can have standing to enforce the principles of the Tenth Amendment against the federal government because federalism protects not just the states but also individuals.  In Bond, the conclusion was foreseeable, as a criminal defendant should be able to challenge the constitutionality of the statute under which she is charged.  But the idea is muddied in a conditional spending program, wherein individual beneficiaries are often at odds with the state and contest its compliance with the federal government’s statutory conditions. 

States have sought to prevent private enforcement of conditional spending statutes, and they have been more and more successful in closing the courthouse doors.  For example, the Court has limited implied rights of action as well as actions under civil rights law 42 U.S.C. § 1983, decisions that narrow state exposure in federal court.  In fact, this type of question is before the Court now in Douglas v. ILC, which confronts private enforcement of the Medicaid Act against states via the Supremacy Clause.

If the coercion theory is expanded, then private plaintiffs could be reintroduced into the federal courts, the very thing that states have been trying to prevent.  And, individuals engaging in coercion analysis may have different goals than states.  Further, it is possible that coercion could inaugurate a new theory by which those conditions, and the ways in which they are or are not executed by states, can be challenged by private plaintiffs.  So, not only is state coercion by the federal government an inherently sticky question, but it also may not produce results that states desire.


Stanford Law Review Online: The Drone as Privacy Catalyst

Stanford Law Review

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public.

Read the full article, The Drone as Privacy Catalyst by M. Ryan Calo, at the Stanford Law Review Online.


Jumping ahead to Coercion

I had intended to address Douglas next, as it is a nice gateway for discussing Florida v. HHS, but a defense of the coercion argument just published in the New England Journal of Medicine Online inspired me to address the latter first.  I will begin by discussing why I think the Court granted the petition for certiorari then turn to the Medicaid coercion question. 

The Rehnquist Court excluded the Spending Clause from its federalism revolution inasmuch as that would have meant limiting the power to spend by the Tenth Amendment.  When Chief Justice Rehnquist authored South Dakota v. Dole, the evidence is that he believed it was an easy and relatively inconsequential case.  For those sane enough not to engage in the reading of tea leaves that is deciphering the spending power, a quick review.  Dole articulates typical Rehnquist categories for evaluating the constitutionality of conditions placed on federal spending:  the spending must be for the general welfare; the conditions must be clear and unambiguous (as modified by Arlington Central School District Board of Education v. Murphy); the conditions must have a nexus with the federal spending (“germaneness”); and the conditions cannot themselves be unconstitutional.  After providing this test, Rehnquist noted that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.'”  No theory or constitutional provision was cited, but the opinion indicated that coercion would depend on the amount of money or percentage of money withheld if the state violates the conditions.  It seems that the Court meant that coercion would be a Tenth Amendment, state sovereignty problem.  But, Dole also explicitly stated that the Tenth Amendment was not implicated in the bar on unconstitutional conditions.  So, while Dole provides the test for conditional spending, it is undertheorized and a bit self-contradictory.  Nevertheless, the Rehnquist Court reiterated that the Spending Clause is not limited by the Tenth Amendment in New York v. U.S. and held to that position in subsequent cases, disappointing many who believed spending to be the next front in judicially-enforced federalism.

The Roberts Court has given hints now as to its approach to spending as well as federalism, and members of the Court have signaled interest in revisiting both topics.  For example, Justice Kennedy’s concurrence in Comstock stated: “The limits upon the spending power have not been much discussed, but if the relevant standard is parallel to the Commerce Clause cases, then the limits and the analytic approach in those precedents should be respected.”  Justice Kennedy also addressed broader federalism concerns in that concurrence, which were given free rein in his opinion for the Court in Bond v. U.S. as well.  Likewise, Justice Alito’s opinion in Arlington was written as a spending power decision rather than a limited statutory interpretation, which I have written elsewhere resulted in a narrower clear statement rule for the second element of the Dole test.

Additionally, even though the Court seems to dislike hearing both spending and healthcare cases, it already has heard Douglas this term, so spending, federalism, and Medicaid are fresh in the justices’ minds.  And, what could be a better vehicle for considering coercion than the largest grant-in-aid program that also constitutes the second largest portion of states’ budgets?  (Education is first.)  Further, numerous lower federal courts have attempted to construe coercion, but none have struck down federal legislation under the doctrine, making the issue ripe for the Court’s consideration.

Despite the idea of coercion arising repeatedly in federalism cases over the last thirty-ish years, its contours are unknown.  At what point is the money being offered too much? And is the offer really the issue, or is the problem the amount or percent of money a state stands to lose if it does not comply with the conditions?  (Dole indicated the latter, as South Dakota was not coerced because it would lose only 5% of its federal highway funding if it refused to comply with the minimum drinking age that the federal government sought to impose.)  Can coercion only apply to an existing conditional spending program that a state could not leave because it has become dependent on the program?  Or is there some federal program that would offer so much money that no state could turn it down, even at the outset, such that the new program would be coercive?  If it is the former, then clear statement rules also need to be revisited, because they seem to assume some kind of regular restatement of the rules of the program to which a state actively agrees.  That simply does not occur in a long-standing program like Medicaid, making me think that clear statement rules are almost meaningless in that context.  Additionally, states inherently relinquish some sovereignty when they agree to the terms of a cooperative federalism program, highlighting tensions between dual sovereignty and cooperative federalism.

So, what is the upshot for the Medicaid expansion?  [more after the jump]

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The Court, Spending, Federalism, Medicaid, and Other Minor Stuff

My thanks to Angel, Dan, and the rest of the regulars at CoOp for the invitation and the introduction.  I am delighted to be guest blogging, especially at a time when my fields of interest are overflowing with developments.  Everyone has been talking about the Commerce Clause questions raised by the minimum coverage provision of the Patient Protection and Affordable Care Act (“PPACA”).  I too have been avidly following this litigation, but because I study (among other things) Medicaid as a vehicle for constitutional change — and that phenomenon is happening right now.  The Court will decide two high-profile Medicaid cases this term, each of which has the potential to facilitate major movement in structural constitutional law.  Oral arguments were heard in the first case, Douglas v. Independent Living Center of Southern California, on October 3d.  The second case, Florida v. HHS, will be heard in the spring. 

I try not to assume that folks know a lot about federal healthcare programs with their layer cakes of complexity; to wit, a justice said during oral argument, “Suppose there were a provision in the Medicaid or Medicare Act… I get the two of them confused.”  (Ahem.)  So, I will begin with a bit of background that I hope will help to illuminate the two cases before the Court.  Later posts will explore Douglas and Florida v. HHS and their implications for conditional spending jurisprudence, federalism, and Medicaid itself more directly. 

Medicaid is a forty-six year old spending program that provides federal money to the states in exchange for states agreeing to provide particular medical services to the “deserving poor.”  Medicaid has been described as a classic example of cooperative federalism, but the program is structured this way for historic rather than philosophical reasons (which I detail in Federalizing Medicaid).  States were responsible for welfare programs since our founding, and when they could no longer afford to provide welfare medicine, they asked the federal government for money to help care for the deserving poor.  The federal government responded with almost conditionless grants to the states through the Social Security Act of 1935.  Over time, the states asked for more money, and the federal government provided it, but each amendment to the SSA included more and broader rules for the federal funds to ensure they were being used properly.  Fast forward to 1965 and the passage of Medicare, with Medicaid in tow.  While Medicare was grounded philosophically in social insurance (but only for people 65 and older), Medicaid continued the old patterns.  Indeed, the elderly convinced Congress not to allow Medicare to be a joint program between the federal government and the states.  So, Medicaid is a cooperative federalism partnership between the federal government and the states, but not because it was thoughtfully constructed that way.  And, this partnership seems to have fostered more disagreement than cooperation between the federal government and the states.

Why does this matter?  A number of reasons.  PPACA’s expansion of Medicaid is a major philosophical change in the program because it eliminates the idea of the deserving poor for the first time in our history.  But, the tensions between the federal government and the states are very much alive and on display before the Court.  Douglas involves a challenge to California’s Medicaid reimbursement rate reductions under the Supremacy Clause, and it raises questions regarding the nature of spending legislation, access to federal courts, private rights of action against the states, and Medicaid’s very aspirations.  Florida v. HHS challenges the institutional structure of Medicaid (the federal-state partnership) and thus raises major spending questions and federalism questions, including the ever-elusive idea of “coercion.”  The kicker: it has been clear for some time that certain justices were eager to decide these questions. 



Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

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Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

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Reviewing the Oral Argument in Hosanna-Tabor (Part One)

Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

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One Person, One Vote in Mississippi: Maybe Next Year . . .

The decennial redistricting cycle always creates some interesting litigation. While it is still quite early in the cycle, one of the more interesting opinions issued thus far is Mississippi NAACP v. Barbour. Barbour involves the equal protection principle of one person, one vote that requires state legislative districts to have roughly equal population numbers.

Mercifully, the basic facts are fairly simple. Mississippi last redrew its district lines in 2002. In February of this year, the State received census data showing that its current state legislative districts clearly violate one person, one vote. Despite having this data, the Mississippi legislature adjourned without revising the legislative district lines. Mississippi has legislative elections scheduled for this year (a primary in August followed by a general election in November). For this reason, the Barbour plaintiffs rather sensibly went to the district court and asked for relief that would require the elections this year to be held from districts that complied with one person, one vote.

If you had presented me with this situation in a law school hypothetical, I would have said the answer would seem to be fairly clear: on these facts, Mississippi needs to have a redistricting plan that complies with one person, one vote before it holds elections this year. It should come as no surprise, then, that three federal judges think the exact opposite and have decided to allow Mississippi’s legislative elections to go forward based on a plan that everyone agrees violates one person, one vote. Read More


The Obama DOJ and the Voting Rights Act

Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.

As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.

One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments to get approval for their redistricting plans from the federal government, the Obama Administration will have a lot of influence over how the Voting Rights Act gets enforced this time around.

In some ways, the Obama Administration has a tough job ahead if it. From a legal perspective, the Obama Administration has to be careful about what the federal courts might do with the Voting Rights Act if the Obama administration becomes too active for a conservative court. Indeed, in an opinion issued a couple of years ago, the Supreme Court telegraphed its skepticism about the constitutionality of the portions of the Act that allow for federal oversight over state and local election rules. From a political perspective, the Obama Administration might be under pressure to use every tool available to help its natural political allies—the civil rights groups and minority voters—achieve the goal of creating more districts that give minority voters control over who gets elected.

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A Tale of Two Writs

Yesterday’s New York Times editorial, “A Right without a Remedy,” finally shines a spotlight on what anyone familiar with the Guantanamo detainee habeas corpus litigation already knows: the steady erosion of the Supreme Court’s 2008 decision in Boumediene v. Bush, and the open disdain for that decision exhibited by several D.C. Circuit judges, most notably A. Raymond Randolph.

The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.

In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the district courts to conduct prompt hearings into whether the petitioners were being lawfully held. Since then, district courts in Washington, D.C., have issued merits decisions in 59 habeas cases, finding no legal basis for the detention in 38 of them.

The D.C. Circuit, however, has taken increasingly narrow view of district court’s power to inquire into the government’s evidence, reversing or vacating and remanding habeas grants in three cases and affirming habeas denials in four of six cases (the other two denials were vacated and remanded). To date, the Circuit has not affirmed a district court grant of habeas nor outright reversed a district court denial.  Along the way, Randolph, along with Circuit Judge Janice Rogers Brown, have suggested that the government might satisfy its burden merely under a “some evidence” standard, as opposed to the higher, preponderance of the evidence standard the Department of Justice is advocating.

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