Tagged: Supreme Court

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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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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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Stanford Law Review Online: The Money Crisis

Stanford Law Review

The Stanford Law Review Online has just published an Essay by former U.S. Senator Russ Feingold entitled The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court. Senator Feingold explains how the Supreme Court decision in Citizens United threatens the integrity of our political process:

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.

[In Citizens United,] the Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications (either thirty days before a primary election or sixty days before a general election) apply to this movie about Hillary Clinton? The movie, of course, was not running as a normal television commercial; instead, it was intended as a long-form, “on demand” special.

Yet Chief Justice Roberts clearly wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

He concludes:

The Court has a clear opportunity. A new challenge from Montana could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”

Justice Ginsburg is correct. Today’s framework for corruption cannot stand.

Read the full article, The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court by Russ Feingold, at the Stanford Law Review Online.

Note: corrected for typos

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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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Preparing for the Three Ring Circus (But Not Yet)

Many, many thanks to Dan and the other CoOp regulars for having me back this month.  For Court watchers, June can feel like a vigil for the term’s final, big decisions, but this year that tension is heightened in anticipation of all that may occur in Florida v. U.S. Department of Health and Human Services.  To wit, SCOTUSblog has issued what is effectively an emergency preparedness plan.  I am working on a presentation and a workshop paper for two conferences related to the spending and healthcare action this term and will turn to my favorite topics soon.  But, as Gerard noted recently, many are suffering from healthcare reform overload, malaise, exhaustion… .  Accordingly, as I am coming up for air after grading 70 Constitutional Law essay exams (what is that, at least a thousand pages of grading?), I am thinking about the semester’s high and low points and ways in which I can improve my classroom performance. 

There is nothing like the marathon of grading to initiate this kind of reflection, which I think is a useful exercise before diving into the pleasures of summer research and conferences.  I imagine we have all experienced the gratification of seeing that our students have learned something well and rose to the challenge on an exam, and the disappointment of realizing that no one understood a word we said on a particular topic.  It can be hard to self-correct during the semester except to clear up the immediate points of confusion (though I do make notes in my syllabus when topics don’t proceed as planned).  But, the next year’s students can benefit from the prior year’s lessons, some of which can be learned from student evaluations, and some of which can result from ‘exam reflection.’  Taking a moment to reconsider can result in fruitful actions such as better exams, rewriting part of a syllabus, restructuring a class to introduce material better, considering supplemental materials, or revisiting casebook choices.  Sometimes a deliberate choice not to act occurs to see if the issue is a blip or a trend. 

In light of these musings, I have two questions, one general, and one more specific to Con Law:

1.  Do you use exams to reflect on the success of the semester’s teaching?  If so, how?  What kinds of issues do you think warrant attention given the limitations of the law school exam structure?

2.  Do you provide any background materials that are the equivalent of the civics lessons of yore?  Every year I have students come to my office concerned that they will be left behind in Con Law because they know virtually nothing about American history, politics, civics, or the Constitution.  My first assignment is always to read the Constitution, which levels the playing field a bit (funny how many poli sci majors think they know everything but have never actually read the document).  But, I have yet to find a good, concise background reader for my nervous con law newbies.  I don’t think this lack of background affects exam performance, but I would like to find a good resource.  Suggestions?

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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.

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INSIDE THE COURT FOR TODAY’S AFFORDABLE CARE ACT ARGUMENT

I just returned from this morning’s oral argument in Department of HHS v. Florida, the challenge to the constitutionality of the Affordable Care Act (ACA). This week the Court is devoting three full days (six hours) of argument to the case, the most in half a century. The case has been a constitutional law professor’s dream because it illustrates the application of so many issues we cover in the course, including standing, the commerce power, the tax and spending powers, and theories of constitutional interpretation. I have had my first year Con Law students read the decisions below and the principal briefs before the Court and we devoted two full days of class to a roleplaying exercise where the students argued the issues.

This morning when I arrived at the Court at 7:30am there was a very lengthy line outside the Court building even for members of the Supreme Court Bar. When I saw the line I figured that I would not have a chance to get a seat in the bar section, but I at least would be able to listen to live audio of the arguments in the Lawyer’s Lounge. However, many people in the bar line were members of the press and the line shrunk quickly when they were ushered into the building. Also the Court wisely decided for today’s session to entertain no admissions for new members of the Supreme Court bar, freeing up extra seats in the bar section. I received ticket #47 and by 8:45am I was seated in the courtroom with other members of the Court’s bar. Sitting next to me was a state legislator from Maine who had flown to D.C. for the argument. She reported that when she arrived at the Court at 5:20am she was the thirteenth person in the bar line and that many of the people in front of her had been paid to wait in line for other bar members.

I was seated directly in front of the press section, which was filled to overflowing by 9:30am. Being a fly on the wall to conversations among the veteran reporters who cover the Court was interesting. One mused that he could create a stampede from the bar section simply by announcing that he was looking for experts to comment on the case. Another vowed dire consequences “if one more public relations person from a fourth-tier law school calls me to insist that I have to talk to some associate professor about this case.” Considerable chatter occurred concerning which prominent officials were in the Court (“Justice said Eric Holder will be here, but I don’t see him.”).

When the Justices took the bench at 10am, Justice Scalia announced the Credit Suisse Securities decision on the running of a statute of limitations in securities litigation. He went into great detail about the case, taking ten full minutes and causing many in the press and bar sections to roll their eyes. Chief Justice Roberts then in three minutes succinctly explained the Court’s Zivotofsky decision, holding that the constitutionality of a statute requiring the State Department to list people born in Jerusalem as having been born in Israel is not a political question.

The argument then got underway. The Court has divided the three days of argument by subject matter. The main event will be tomorrow when the Court focuses on the constitutionality of the individual mandate, the requirement that everyone purchase health insurance. This is the portion of the ACA that was struck down by the 11th Circuit as exceeding Congress’s power under the commerce clause. Today’s argument focused on whether the Anti-Injunction Act, a statute that dates from 1867, barred the Court from hearing challenges to the ACA because of its requires that taxes first be paid before their legality can be challenged in court. The only penalty the ACA provides for failing to purchase health insurance is that an extra payment must be made on one’s income tax return with the payment roughly designed to reflect what the cost of insurance would have been. Because the Solicitor General has taken the position that this payment is not covered by the Anti-Injunction Act, the Court appointed Robert A. Long, Jr. as special counsel to make that argument. Thus, today’s argument was divided into three parts.

Long argued first that the Anti-Injunction Act applied and deprived the Court of jurisdiction to hear the case until after payments for failure to buy insurance became due in 2015. Solicitor General Donald B. Verrilli, Jr. then argued that the Anti-Injunction Act did not apply to this case, but that in cases where it did apply it should be considered to be a jurisdictional bar. Gregory G. Katsas, representing the states challenging the constitutionality of the ACA, argued that the penalty was not a tax barred by the Anti-Injunction Act and that the government had properly waived any argument to that effect.

Based on the questions from the Justices, it seems most unlikely that the Court will use the Anti-Injunction Act rationale to postpone for a few years a decision on the constitutionality of the ACA. Several Justices noted that when the constitutionality of the Social Security Act was challenged 75 years ago in Helvering v Davis, the government waived application of the Anti-Injunction Act, something it could not do if the Act were a jurisdictional bar. Solicitor General Verrilli said the Court need not decide the jurisdictional issue if it agreed that Congress did not intend to subject the ACA to the Anti-Injunction Act. Justice Kennedy brought down the house when he replied, “Don’t you want to know the answer anyway?”

Thirteen minutes into the argument all Justices but Justice Thomas had asked questions. Thomas did not ask any questions. He has not asked a question at oral argument for six years, though some have speculated that tomorrow he may do so when the focus is on the constitutionality of the individual mandate. The Justices did not tip their hands today about how they felt concerning this constitutional issue.  Justice Alito did chide the Solicitor General for arguing today that the sanction for failing to purchase insurance is not a tax, while arguing tomorrow that it is. In one exchange between Justice Kagan and the Solicitor General, Kagan kept referring to the “penalty” while Verrilli kept answering by referring to the “tax.” When the Chief Justice noted that they were using different terms, Verrilli switched to “tax penalty” as a compromise.

Tomorrow the government is making the argument that the individual mandate is constitutional as an exercise of both the commerce and the taxing powers. The tax power is implicated because the only sanction for violating the mandate is payment of a penalty on one’s income tax. Opponents of the mandate argue that it never would have been adopted by Congress if it had been advertised as a tax. However, there is precedent that even measures not specifically called “taxes” can be upheld under the taxing power in certain circumstances.

The upshot of today’s argument is that the Court is most unlikely to use the Anti-Injunction Act to duck a decision on the merits of the constitutional issues. Thus, tomorrow is the main event (Wednesday’s argument will be devoted to severability and the sleeper issue of whether the Medicaid expansion is unconstitutionally coercive of the states). I will not be attending the argument tomorrow because I have a morning class in Constitutional Law, but my class and I certainly will continue to follow this case closely.

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One more principle: Nondiscrimination

There is one principle that I would add to the five that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual “space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.

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Thoughts on Ammori’s Free Speech Architecture and the Golan decision

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.