Currently viewing the tag: "constitutionality"

After issuing a muted condemnation of President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) last week, House Speaker John Boehner (R-OH) is suggesting that he may seek to defend the law in the government’s stead. During a recent appearance on CBN’s ‘The Brody File’, Boehner assured Christian listeners that Republicans will soon decide how to proceed in upholding the Act:

BOEHNER: Now, it’s happened before where administrations have decided they weren’t going to go out and vigorously defend a law that Congress passed but I really am disappointed in the President in his actions but if the President won’t lead, if the President won’t defend DOMA then you’ll see the House of Representatives defend our actions in passing a bill that frankly passed overwhelmingly. [...]

We’ve been researching all the options that are available to us. We’ll be talking to the members in the next few days about that and I expect we’ll have a decision by the end of the week…I’d be very surprised if the House didn’t decide that they were going to defend law.”

Watch it:

Boehner’s comments align the Speaker with the most social conservative faction of the Republican party and seem to undermine the belief that “the wedge has lost its edge.” Most mainstream Republicans have stopped short of calling on the House to defend the law, but conservatives like Rick Santorum, Newt Gingrich, and Rep. Steve King (R-IA) have embraced the messaging of anti-gay groups like the Family Research Council, the National Organization for Marriage, the American Family Association and are calling on House Republican to push back against the President’s decision.

Santorum asked Boehner to defend DOMA in court, while Gingrich and King have both proposed “cutting the funding to the Justice Department” in response to the decision. Gingrich even went so a far as to argue that Obama is violating his “Constitutional oath.”

Wonk Room

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As I noted yesterday, President Obama’s decision not to defend the Constitutionality of Section Three of the Defense Of Marriage Act in Court has aroused no small degree of controversy, as well as the absurd suggestion by Newt Gingrich that it is potentially an impeachable offense. The truth of the matter is that this is something that Presidents have done frequently in the past.

Here’s a list of some of the more prominent cases, borrowed from a 1995 letter to Orrin Hatch by the Clinton Justice Department:

This case concerned the constitutionality of § 304 of the Urgent Deficiency Appropriation Act of 1943, providing that, after November 15, 1943, no salary or other compensation shall be paid to certain employees of the Government. The employees in question filed suit against the government. On appeal, the Solicitor General joined the claimants in arguing that the statute was an unconstitutional Bill of Attainder. The Attorney General at the time suggested Congress employ its own counsel to defend the statute and, when they did, the courts gave that special counsel leave to appear and defend the law.

Under the relevant immigration laws that were in effect at the time of this case, the INS had the authority to suspend deportation of a someone in the country illegally for at least seven years if the Attorney General deportation would result in extreme hardship. The House of Representatives, acting on its own, could then reverse the INS’s decision. Chadha was a qualifying alien under the law, and the Attorney General had suspended his deportation based on the “extreme hardship” standard but Congress acted to reverse that decision. Chadha appealed, arguing that the “one-house veto” was unconstitutional and the Department of Justice agreed. Defense of the statute was handled by the Senate Legal Counsel.

This case involved a challenge to the constitutionality of Independent Counsel Act. Although the Independent Counsel was technically an arm of the Department of Justice, the Solicitor General appeared amicus curaie to argue that the statute was unconstitutional.

This case involved a challenged to the practice of the Federal Communications Commission to give preference in the granting of broadcast licenses to organizations which met a certain level of minority ownership. The Acting Solicitor General appeared amicus curaie to argue that the law was unconstitutional. The FCC used i’s own counsel’s office to defend the policy,

A federal statute permitted the Surgeon General to make an exception in the award of grants for hospitals that discriminated on the basis of race if there was a “separate but equal” hospital facility for all races immediately available. The Department of Justice joined a group of black doctors and patients in a class action arguing that the law was unconstitutional.

  • Garrett v. Alexander 477 F. Supp 1035 (D., D.C, 1979)

A federal law permitted the army to sell surplus rifles to the public, but only to members of the National Rifle Association. The Department of Justice took the position that the requirement for NRA membership was a violation of the Equal Protection Clause of the Fifth Amendment and made this argument in Court. The District Court gave Congress the opportunity to appear to defend the statute, but Congress declined to do so.

Federal law prohibited non-commercial radio or television stations from editorializing or endorsing a political candidate. The Solicitor General appeared to argue that the law violated the First Amendment. Senate Legal Counsel appeared to defend the law in the District Court. The case went to appeal after the Reagan Administration came to office, at that time the new Solicitor General determined that he could defend the law and did so in the Court of Appeals and the Supreme Court, where the law was eventually upheld.

This case concerned the constitutionality of the “must carry” rules imposed on cable television providers by Federal Law. In the District Court, the Department of Justice took the position that the rules were unconstitutional. On appeal, after the Clinton Administration took power, the Department of Justice decided it could defend the constitutionality of the statute on appeal.

So, as you can see, this is a rare, though not uncommon, occurrence, and it is worth noting that there is no suggestion in the record of any of these cases that the Executive Branch’s decision not to defend a Federal Law in court was in any way unconstitutional, or a breach of the President’s duties under the Constitution.




Outside the Beltway

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Two federal district judges have invalidated the so-called “individual mandate” in the Patient Protection and Affordable Care Act of 2010. Their reasoning is bizarre and mischievous. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the framers, and cripple the nation’s ability to address one of its most pressing problems.

The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.

I’ve been saying this here for months in a series of short posts. I’ve now posted a paper on SSRN that pulls together the whole argument.

Balkinization

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Reinventing Michigan could mean ending collective bargaining, voiding labor contracts and even dissolving whole cities, according to legislation that is moving quickly through the legislature.

On Wednesday the state House approved a sweeping expansion of powers for the officials who will be appointed by the governor to take over towns and school districts that can’t pay their bills.

Under current law the state can appoint Emergency Financial Managers to temporarily take over the finances of local governments that have become insolvent — this has happened in Hamtramck, Highland Park, Flint, the village of Three Oaks, Ecorse, Pontiac, Benton Harbor, and the Detroit Public School district.

The new law, which was requested by the governor, redefines these officials as Emergency Managers and gives them the power to end existing contracts, take over pension plans, reorganize departments, enter into agreements to restructure debt and dissolve or consolidate fiscally troubled towns and schools.

“We need to be proactive about difficult circumstances and face them head on,” bill sponsor Rep. Al Pschockla said as the House prepared to vote.

Pschockla said that the measure will protect taxpayers in more stable areas from the financial problems of harder hit areas.

But labor and education groups and people from Detroit, Pontiac, Flint and Benton Harbor object to the bill.

“This is one of the worst pieces of legislation we’ve ever seen,“ said Michigan Fraternal Order of Police Executive Director John Buczek. “The people who are voting for it in the House are the same people who talk about home rule and local control and this bill completely takes power away from local community and gives it to one individual.

“That kind of dictatorial rule is not good for anybody.”

Buczek said that he expects that Emergency Managers will swiftly use their new power to cancel contracts with police and firefighters.

“I could see us ending up in court over this,” he said.

“This plan is a slap in the face to the democracy our nation was founded on,“ state Rep. Shanelle Jackson (D-Detroit) said in a statement. “It removes elected officials from power and ignores the rights of our voters to choose their local leaders, and instead opens the door for one person to be in control of running our city.”

Jackson said that the plan violates the state Constitution by breaking local charters and disenfranchising voters. She also argues that it sets inadequate professional qualifications for emergency managers.

“If this bill passes it will have severe negative impact on all communities and all school districts in this state,” said Benton Harbor Mayor Wilce Cooke. “There is no oversight, no checks and balances in this bill.”

Treasury Dept. spokesman Terry Stanton said that emergency managers would file quarterly reports and be subject to the terms of his or her contract, which would be posted publicly.

Southeast Michigan Coalition of Governments Executive Director Paul Tate said that his group, as part of the Metropolitan Affairs Coalition has passed a resolution of concern about the bill.

“There was a recognition that the severe fiscal distress warrants some extraordinary measures,” he said, “but the provision of voiding collective bargaining doesn’t make sense and is unnecessarily anti-union.”
 
Tate said that unions have proved willing to compromise in order to help cities remain solvent and that collective bargaining is a rational process for solving problems.
 
State Rep. Mark Meadows (D-East Lansing) is asking Attorney General Bill Schuette for a formal opinion on the legality of granting emergency managers the power to void contracts.

“[O]ur state and federal constitutions contain “contract clauses,” he said, “both of which prohibit the state from enacting any law that impairs existing contractual obligations.”
 
A House Fiscal Agency analysis of the Local Government and School District Fiscal Responsibilty Act notes that declining property values across the state have resulted in reduced tax revenue for municipalities and tax-funded revenue sharing from the state, already down by a third since 2000, is set to be chopped again in the budget proposed by Governor Snyder.

Dozens of towns and 40 school districts are expected to face financial emergency soon.

The Treasury Dept. is in the process of training 50 prospective Emergency Managers.

Michigan Messenger

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(Ilya Somin)

The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that this is a constitutionally permissible exercise of executive power, but an unwise one that contradicts the Democrats’ position on other executive power issues.

I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.

I. The President’s Duty to Defend the Constitution Supersedes His Duty to Uphold Federal Statutes When the Two Conflict.

Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

II. Practical Considerations.

Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.

The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene. For example, any of the 45 states that today forbid gay marriage would probably have standing to defend its constitutionality on the grounds that otherwise they might have to extend tax credits and other government benefits to resident couples who have entered into same-sex marriages in other states. If a future Republican administration chooses not to defend the constitutionality of the individual mandate, both state governments who support it and various private parties who benefit from it materially would have standing to intervene. For example, insurance companies support the mandate because it requires people to buy their products and that financial stake in the law is surely sufficient to give them standing.

Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it. Ed Whelan, a prominent critic of the Obama Administration’s handling of the DOMA litigation, claims that the “administration has been sabotaging DOMA litigation from the outset” by refusing to make the best possible arguments in the law’s defense. If so, wouldn’t DOMA supporters be better off if the statute’s defense were handled by parties who actually believe in their case and genuinely want to win it?

Past experience supports the conjecture that a president’s unwillingness to defend a federal statute doesn’t necessarily doom it to defeat. This is not the first time that a president refused to defend the constitutionality of a federal law or regulation. In 1989, as Jim Copland points out, the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court, as other extremely able lawyers were found to defend them. For example, the Bob Jones case was won by prominent Washington, DC lawyer William Coleman.

In recent years, federal courts have gradually relaxed standing rules, making it easier for a variety of parties — especially state governments — to bring lawsuits or intervene in existing ones. Thus, it is highly unlikely that a president’s refusal to defend a statute in court will mean that it won’t find able defenders elsewhere. If there is still a problem, the proper solution is to further loosen restrictive standing requirements, which should be eliminated anyway for reasons I explained here.

UPDATE: I should add that it might also be legitimate for the president to adopt a general policy of deferring to congressional judgment on issues relating to the constitutionality of federal statutes, if he believes that Congress’ judgment on these matters is likely to be systematically superior to that of the executive branch. But I think any such presumption is at best dubious in an era when Congress generally enacts whatever statutes it wants with little or no serious consideration of constitutional constraints on its power.

UPDATE #2: I have changed around some of the wording in this post for the sake of clarity.




The Volokh Conspiracy

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Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, theAttorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains wht this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due. This is an area where I have expressed extreme disagreement with Mr. Obama and his policy, and he has met exactly the issues that were faulty, and in a strong way.

The above linked documents speak for themselves in most regards, but I would like to point out a couple of things. First, the Administration is not just going to cease defending DOMA, they are doing so on the express ground that it “violates the equal protection component of the Fifth Amendment”. That is huge. Not just that it is wrong, but that it flat out violates the most fundamental protections within the United States Constitution. Secondly, and to a legal eye every bit as important, if not more so, they have concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Again, huge. They lay out a detailed analysis under Bowen v. Gilliard why this is so, discuss Lawrence v. Texas, Romer v. Evans, Fontiero v. Richardson and conclude:

Each of these factors counsels in favor of being suspicious of classifications based on sexualorientation.

and

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent o f the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.

Ballgame.

And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mid was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

Moreover, events of this morning demonstrate that proponents likely cannot prevailevenifthislengthyproceduraldetourwereresolvedintheirfavor. Inaletter to Congress, the Attorney General of the United States announced the view of the United States that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Sec- tion 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitu- tional.”” Letter from the Attorney General to Congress on Litigation Involving the De- fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments——this Court’’s certification order, the California Su- preme Court’’s response to it, and the Attorney General’’s announcement that the gov- ernment will no longer defend DOMA——are materially changed circumstances that warrant vacatur of this Court’’s decision to grant a stay pending appeal. See SEACC v. U.S. Army Corps of Eng’’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

The long and short of this is that Boies and Olson argue that between today’s announcement of the quantum shift in policy by President Obama and Attorney General Holder and the direction the California supreme Court is heading creates a situation is which there is simply no resolution of the appeal that favors the challengers - the h8ters - actually winning on the merits. There are several ways the case could go down, as pondered through by Boies and Olson, but none of them favor the bigoted proponents of Proposition 8.

Boies and Olson have a pretty compelling point if you total up the legal considerations extant at this point. The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got. The Administration should be commended for this as well, when they finally decided to ante in on the right side of the Constitutionality argument, they went all in. Bravo!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Related posts:

  1. Obama DOJ Stops Defending Defense of Marriage Act
  2. California Supreme Court To Hear Perry Prop 8 Question
  3. Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer


Emptywheel

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Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, theAttorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains wht this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due. This is an area where I have expressed extreme disagreement with Mr. Obama and his policy, and he has met exactly the issues that were faulty, and in a strong way.

The above linked documents speak for themselves in most regards, but I would like to point out a couple of things. First, the Administration is not just going to cease defending DOMA, they are doing so on the express ground that it “violates the equal protection component of the Fifth Amendment”. That is huge. Not just that it is wrong, but that it flat out violates the most fundamental protections within the United States Constitution. Secondly, and to a legal eye every bit as important, if not more so, they have concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Again, huge. They lay out a detailed analysis under Bowen v. Gilliard why this is so, discuss Lawrence v. Texas, Romer v. Evans, Fontiero v. Richardson and conclude:

Each of these factors counsels in favor of being suspicious of classifications based on sexualorientation.

and

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent o f the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.

Ballgame.

And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mid was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

Moreover, events of this morning demonstrate that proponents likely cannot prevailevenifthislengthyproceduraldetourwereresolvedintheirfavor. Inaletter to Congress, the Attorney General of the United States announced the view of the United States that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Sec- tion 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitu- tional.”” Letter from the Attorney General to Congress on Litigation Involving the De- fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments——this Court’’s certification order, the California Su- preme Court’’s response to it, and the Attorney General’’s announcement that the gov- ernment will no longer defend DOMA——are materially changed circumstances that warrant vacatur of this Court’’s decision to grant a stay pending appeal. See SEACC v. U.S. Army Corps of Eng’’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

The long and short of this is that Boies and Olson argue that between today’s announcement of the quantum shift in policy by President Obama and Attorney General Holder and the direction the California supreme Court is heading creates a situation is which there is simply no resolution of the appeal that favors the challengers - the h8ters - actually winning on the merits. There are several ways the case could go down, as pondered through by Boies and Olson, but none of them favor the bigoted proponents of Proposition 8.

Boies and Olson have a pretty compelling point if you total up the legal considerations extant at this point. The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got. The Administration should be commended for this as well, when they finally decided to ante in on the right side of the Constitutionality argument, they went all in. Bravo!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Related posts:

  1. Obama DOJ Stops Defending Defense of Marriage Act
  2. California Supreme Court To Hear Perry Prop 8 Question
  3. Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer


Emptywheel

Tagged with:
 

Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, theAttorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains wht this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due. This is an area where I have expressed extreme disagreement with Mr. Obama and his policy, and he has met exactly the issues that were faulty, and in a strong way.

The above linked documents speak for themselves in most regards, but I would like to point out a couple of things. First, the Administration is not just going to cease defending DOMA, they are doing so on the express ground that it “violates the equal protection component of the Fifth Amendment”. That is huge. Not just that it is wrong, but that it flat out violates the most fundamental protections within the United States Constitution. Secondly, and to a legal eye every bit as important, if not more so, they have concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Again, huge. They lay out a detailed analysis under Bowen v. Gilliard why this is so, discuss Lawrence v. Texas, Romer v. Evans, Fontiero v. Richardson and conclude:

Each of these factors counsels in favor of being suspicious of classifications based on sexualorientation.

and

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent o f the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.

Ballgame.

And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mid was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

Moreover, events of this morning demonstrate that proponents likely cannot prevailevenifthislengthyproceduraldetourwereresolvedintheirfavor. Inaletter to Congress, the Attorney General of the United States announced the view of the United States that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Sec- tion 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitu- tional.”” Letter from the Attorney General to Congress on Litigation Involving the De- fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments——this Court’’s certification order, the California Su- preme Court’’s response to it, and the Attorney General’’s announcement that the gov- ernment will no longer defend DOMA——are materially changed circumstances that warrant vacatur of this Court’’s decision to grant a stay pending appeal. See SEACC v. U.S. Army Corps of Eng’’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

The long and short of this is that Boies and Olson argue that between today’s announcement of the quantum shift in policy by President Obama and Attorney General Holder and the direction the California supreme Court is heading creates a situation is which there is simply no resolution of the appeal that favors the challengers - the h8ters - actually winning on the merits. There are several ways the case could go down, as pondered through by Boies and Olson, but none of them favor the bigoted proponents of Proposition 8.

Boies and Olson have a pretty compelling point if you total up the legal considerations extant at this point. The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got. The Administration should be commended for this as well, when they finally decided to ante in on the right side of the Constitutionality argument, they went all in. Bravo!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Related posts:

  1. Obama DOJ Stops Defending Defense of Marriage Act
  2. California Supreme Court To Hear Perry Prop 8 Question
  3. Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer


Emptywheel

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Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, theAttorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains wht this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due. This is an area where I have expressed extreme disagreement with Mr. Obama and his policy, and he has met exactly the issues that were faulty, and in a strong way.

The above linked documents speak for themselves in most regards, but I would like to point out a couple of things. First, the Administration is not just going to cease defending DOMA, they are doing so on the express ground that it “violates the equal protection component of the Fifth Amendment”. That is huge. Not just that it is wrong, but that it flat out violates the most fundamental protections within the United States Constitution. Secondly, and to a legal eye every bit as important, if not more so, they have concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Again, huge. They lay out a detailed analysis under Bowen v. Gilliard why this is so, discuss Lawrence v. Texas, Romer v. Evans, Fontiero v. Richardson and conclude:

Each of these factors counsels in favor of being suspicious of classifications based on sexualorientation.

and

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent o f the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.

Ballgame.

And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mid was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

Moreover, events of this morning demonstrate that proponents likely cannot prevailevenifthislengthyproceduraldetourwereresolvedintheirfavor. Inaletter to Congress, the Attorney General of the United States announced the view of the United States that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Sec- tion 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitu- tional.”” Letter from the Attorney General to Congress on Litigation Involving the De- fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments——this Court’’s certification order, the California Su- preme Court’’s response to it, and the Attorney General’’s announcement that the gov- ernment will no longer defend DOMA——are materially changed circumstances that warrant vacatur of this Court’’s decision to grant a stay pending appeal. See SEACC v. U.S. Army Corps of Eng’’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

The long and short of this is that Boies and Olson argue that between today’s announcement of the quantum shift in policy by President Obama and Attorney General Holder and the direction the California supreme Court is heading creates a situation is which there is simply no resolution of the appeal that favors the challengers - the h8ters - actually winning on the merits. There are several ways the case could go down, as pondered through by Boies and Olson, but none of them favor the bigoted proponents of Proposition 8.

Boies and Olson have a pretty compelling point if you total up the legal considerations extant at this point. The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got. The Administration should be commended for this as well, when they finally decided to ante in on the right side of the Constitutionality argument, they went all in. Bravo!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Related posts:

  1. Obama DOJ Stops Defending Defense of Marriage Act
  2. California Supreme Court To Hear Perry Prop 8 Question
  3. Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer


Emptywheel

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(Ilya Somin)

The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because choosing not to purchase health insurance is an “economic activity”:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to
ignore reality.

This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”

Judge Kessler also relies on what I have previously called the “health care is special” argument: that choosing not to purchase health insurance is an economic activity because we will all use health care at some point in our lives. This argument, however, also leads to unlimited congressional power, for reasons I have explained here:

This, however, doesn’t differentiate health care from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that [Judges] Steeh and Moon do not argue that everyone will inevitably use health insurance. Instead, they define the relevant market as “health care.” The same sleight of hand works for virtually any other mandate Congress might care to impose.

Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation….” We all move from place to place in some way. If we don’t do so by purchasing cars, we will have to pay for some other mode of transportation, such as planes, buses, or trains. Even people who walk everywhere they go will have to buy shoes to do so. Buying cars, planes, trains, buses and shoes are just different ways of paying for transportation.

How about a mandate requiring everyone to see the most recent Harry Potter movie? Sure, there are many people who don’t watch movies. But just about everyone participates in the market for entertainment. If you don’t go to the movies, that’s just a decision to pay for some other form of entertainment somewhere else…..

Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? She doesn’t really give a clear explanation. The answer seems to be that failure to purchase therefore has adverse economic effects on producers and could potentially increase costs. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, be it cars, movie tickets, or broccoli, producers are made economically worse off than they would be if the potential buyer had made a different decision. This is true regardless of whether the producers must provide services to some consumers for free or not. At most, the latter condition exacerbates the negative impact on producers of a failure to purchase. But so too can all sorts of other market conditions and government regulations. Moreover, Judge Kessler’s approach would allow Congress to impose any mandate of any kind so long as it also required at least some producers to provide their product to at least some consumers for free. This too is a road to virtually unlimited federal power to impose mandates, since producers in any industry would be happy to accept a minor “free service” obligation so long as it was coupled with a more lucrative purchase mandate.

In a footnote, Judge Kessler blames the plaintiffs for supposedly choosing to “‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” But it is Congress, not the plaintiffs, which is responsible for the requirement that hospitals free emergency service to the uninsured. If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so. That approach would have prevented free riding without imposing any mandates, and would also have avoided any possible constitutional problems.

Finally, Kessler also upholds the mandate under the Necessary and Proper Clause. In so doing, however, she simply ignores the main arguments against the federal government’s position under that Clause: that the mandate is not “proper” even if “necessary” and that it runs afoul of the five factor test recently applied by the Supreme Court in United States v. Comstock. In fairness, the judge did not need to consider the Necessary and Proper Clause issue, since she had also decided to uphold the mandate under the Commerce Clause alone. But since she chose to reach the issue, she should have made at least some effort to explain why the key anti-mandate arguments (which had previously been accepted by two other federal district courts) are wrong.

UPDATE: I should note that Judge Kessler rejects the federal government’s argument that the mandate can be upheld under Congress’ power to impose taxes. Like every other court that has considered this argument so far, she concludes that the mandate is a “penalty,” not a tax. In reaching that conclusion, she relies on Judge Roger Vinson’s analysis in the Florida decision striking down the mandate. The federal government’s tax argument has now gone 0–4 in federal courts, including two adverse rulings by federal judges who upheld the mandate on other grounds.




The Volokh Conspiracy

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(Orin Kerr)

This one is Mead v. Holder, from Judge Kessler of the United States District Court for the District of Columbia, who concludes the mandate is constitutional. From the opinion:

[T]he individual mandate provision is an appropriate means which is rationally related to the achievement of Congress’s larger goal of reforming the national health insurance system. In other words, § 1501 is a clear-cut example of “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Thus, the Court reaffirms its conclusion that Congress acted within the bounds of its Commerce Clause power, especially whenconsidering the Necessary and Proper Clause, when it enacted § 1501.
As this analysis makes clear, the principles established by the Supreme Court in its Commerce Clause jurisprudence, which of course must guide this Court’s analysis, compel the conclusion that § 1501 was enacted pursuant to Congress’s Commerce Clause power.

On the proposed activity/inactivity distinction:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

Thanks to the BLT for the link.




The Volokh Conspiracy

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Last May, after millions of barrels of oil had been pumped into the ocean, Barack Obama issued an order to halt all U.S. deep sea drilling in the Gulf of Mexico.   Immediately, constitutionalists began to rail against the moratorium, which appeared to be a severe abuse of Presidential authority - a quick grab for powers that the commander in chief simply doesn’t wield.  The courts agreed, and on June 22, an injunction was issued by U.S. District Judge, Martin Feldman, who argued that Obama’s directive was “overly broad.”

A few hours after their defeat, U.S. Interior Secretary Kenneth Salazar issued a statement stating that the Obama administration would be presenting a “new order in the coming days that eliminates any doubt that a moratorium is needed, appropriate, and within our authorities.”

A second drilling ban was enacted last July, only to be rescinded in October - before Judge Feldman could rule on it.  Since then, the government has used a cadre of regulators to deny drilling and enforce a de facto ban.  In fact the government has not issued a single drilling permit in the last 9 months.

Two weeks ago, Judge Feldman found the Obama administration in contempt of court.

“Each step the government took following the court’s imposition of a preliminary injunction showcases its defiance,” Feldman ruled. “Such dismissive conduct, viewed in tandem with the re-imposition of a second blanket and substantively identical moratorium, and in light of the national importance of this case, provides this court with clear and convincing evidence of the government’s contempt.”

The Obama administration has remained silent on the issue but, tellingly, their refusal to grant permits has not wavered.

This pattern is repeating itself in regards to Barack Obama’s landmark healthcare overhaul.  First, in December, U.S District Judge Henry E. Hudson determined that Obamacare’s individual mandate was unconstitutional – though he angered conservatives by refusing to extend his ruling to the entire bill.  A month later, however, Florida U.S. District Judge, Roger Vinson, did exactly that.

According to the Florida ruling, “Because the individual mandate is unconstitutional and not severable, the entire act must be declared void.”  Vinson went on to say that there was no need to issue an injunction against implementing the law since it’s illegal for the government to enforce an unconstitutional law in the first place.

“There is a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court, Vinson wrote in his judgment. “As a result, the declaratory judgment is the functional equivalent of an injunction. There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.”

Apparently, the President simply doesn’t care.

According to his 2012 budget, the Department of Health and Human Services will begin implementing his health care plan, spending over $ 900 billion in 2012 alone.  At that amount it will become the most expensive U.S. cabinet department, easily topping the military’s $ 739 billion price tag.  By 2014, the first year of full Obamacare implementation, it will become the first trillion dollar government entity.

Those worried that the IRS won’t be able to keep up should relax.  Obama’s budget also includes a 9.5% increase in IRS funding.  The bump puts the agency’s budget at $ 13.28 billion, while calling for the hiring of an additional 5,100 enforcement agents.  Much of this 5% expansion of the IRS payroll is geared toward auditing tax cheats, but many see it as the first stage of hiring thousands of new IRS agents that will be tasked with enforcing the President’s wildly unpopular health care bill - which, of course, was just declared 100% unconstitutional.

Month after month, court after court, ruling after ruling, Barack Obama has refused to acknowledge the will of the courts.

Conservative pundits argue that if the previous administration had ignored the courts and continued policies that were expressly ruled unconstitutional, the left would have been apoplectic.  Others seem shocked that the Obama administration has been so brazenly defiant.  After all, one would expect such judicial disregard from some third world tin pot dictator, but it’s new territory for a United States President.

Those who find themselves confused would do well to remember: Obama has repeatedly expressed the view that the Constitution is an “imperfect document” filled with “deep flaws.” He’s referred to it dismissively as a “political document” and tried to diminish its power by incorrectly labeling it a “document of negative rights.”

Why should anyone expect him to respect the checks and balances provided by the judicial system, when he is so clearly unimpressed with the document that created them?


Big Government

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Last May, after millions of barrels of oil had been pumped into the ocean, Barack Obama issued an order to halt all U.S. deep sea drilling in the Gulf of Mexico.   Immediately, constitutionalists began to rail against the moratorium, which appeared to be a severe abuse of Presidential authority - a quick grab for powers that the commander in chief simply doesn’t wield.  The courts agreed, and on June 22, an injunction was issued by U.S. District Judge, Martin Feldman, who argued that Obama’s directive was “overly broad.”

A few hours after their defeat, U.S. Interior Secretary Kenneth Salazar issued a statement stating that the Obama administration would be presenting a “new order in the coming days that eliminates any doubt that a moratorium is needed, appropriate, and within our authorities.”

A second drilling ban was enacted last July, only to be rescinded in October - before Judge Feldman could rule on it.  Since then, the government has used a cadre of regulators to deny drilling and enforce a de facto ban.  In fact the government has not issued a single drilling permit in the last 9 months.

Two weeks ago, Judge Feldman found the Obama administration in contempt of court.

“Each step the government took following the court’s imposition of a preliminary injunction showcases its defiance,” Feldman ruled. “Such dismissive conduct, viewed in tandem with the re-imposition of a second blanket and substantively identical moratorium, and in light of the national importance of this case, provides this court with clear and convincing evidence of the government’s contempt.”

The Obama administration has remained silent on the issue but, tellingly, their refusal to grant permits has not wavered.

This pattern is repeating itself in regards to Barack Obama’s landmark healthcare overhaul.  First, in December, U.S District Judge Henry E. Hudson determined that Obamacare’s individual mandate was unconstitutional – though he angered conservatives by refusing to extend his ruling to the entire bill.  A month later, however, Florida U.S. District Judge, Roger Vinson, did exactly that.

According to the Florida ruling, “Because the individual mandate is unconstitutional and not severable, the entire act must be declared void.”  Vinson went on to say that there was no need to issue an injunction against implementing the law since it’s illegal for the government to enforce an unconstitutional law in the first place.

“There is a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court, Vinson wrote in his judgment. “As a result, the declaratory judgment is the functional equivalent of an injunction. There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.”

Apparently, the President simply doesn’t care.

According to his 2012 budget, the Department of Health and Human Services will begin implementing his health care plan, spending over $ 900 billion in 2012 alone.  At that amount it will become the most expensive U.S. cabinet department, easily topping the military’s $ 739 billion price tag.  By 2014, the first year of full Obamacare implementation, it will become the first trillion dollar government entity.

Those worried that the IRS won’t be able to keep up should relax.  Obama’s budget also includes a 9.5% increase in IRS funding.  The bump puts the agency’s budget at $ 13.28 billion, while calling for the hiring of an additional 5,100 enforcement agents.  Much of this 5% expansion of the IRS payroll is geared toward auditing tax cheats, but many see it as the first stage of hiring thousands of new IRS agents that will be tasked with enforcing the President’s wildly unpopular health care bill - which, of course, was just declared 100% unconstitutional.

Month after month, court after court, ruling after ruling, Barack Obama has refused to acknowledge the will of the courts.

Conservative pundits argue that if the previous administration had ignored the courts and continued policies that were expressly ruled unconstitutional, the left would have been apoplectic.  Others seem shocked that the Obama administration has been so brazenly defiant.  After all, one would expect such judicial disregard from some third world tin pot dictator, but it’s new territory for a United States President.

Those who find themselves confused would do well to remember: Obama has repeatedly expressed the view that the Constitution is an “imperfect document” filled with “deep flaws.” He’s referred to it dismissively as a “political document” and tried to diminish its power by incorrectly labeling it a “document of negative rights.”

Why should anyone expect him to respect the checks and balances provided by the judicial system, when he is so clearly unimpressed with the document that created them?


Big Government

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(Randy Barnett)

Because I have been on the road, I did not have chance to comment on Thursday’s editorial in the New York Times entitled, “A Debate Bigger Than Reform” (registration required). It strikes me as significant that the editorial board of the Times now feels the need to address the constitutional objections to the individual mandate, just as the Senate Judiciary Committee decided to hold its first hearing on the constitutionality of the individual mandate more than a year after the Senate passed the bill. Unfortunately, like Akhil Amar and Laurence Tribe, the Times failed to address the actual objections being made by the plaintiffs and the actual reasoning of Judge Roger Vinson, preferring to focus on my testimony last week before the Senate Judiciary Committee. This could cause one to suspect that, if Judge Vinson’s actual legal analysis was as weak as alleged, it could be accurately reported and answered forthrightly. Instead we get this:

While the federal courts consider whether the health care reform law is constitutional, there is an intense and even wider debate playing out in political and legal circles about the Constitution and Congress’s power to solve national problems.

At a Senate Judiciary Committee hearing last week on the reform law, two witnesses argued fiercely opposing views. Walter Dellinger, a former acting solicitor general under President Bill Clinton, made a compelling case for the law’s constitutionality. He said that the commerce clause was the main source of Congress’s power for regulating the nation’s economy, an argument going back to Chief Justice John Marshall.

Randy Barnett, a Georgetown law professor, made a countercase based on what he calls “the lost Constitution,” an interpretation that would limit much of that basic law, including the commerce clause.

The hearing lasted over two hours, and I have not read the transcript, but I do not believe I mentioned “the lost Constitution.” Regardless, none of the challenges to the individual mandate are based on restoring any of the “lost clauses” of the Constitution, and neither was my testimony. All the challenges are based on existing Supreme Court doctrine defining the scope of the Commerce and Necessary & Proper clauses. None are based on the original meaning of the Constitution. Nor was Judge Vinson’s decision, though you would never know it from reading these three sources.

The constitutional challenge is based on the simple and undeniable fact that the “substantial effects” doctrine is currently limited to regulating “economic activity.” This is why Congress and the government have offered shifting explanations of how the mandated does regulate economic activity. Congress is regulating economic “decisions” (says the statute) or the activity of obtaining health care or the activity of paying for health care (says the government in its briefs), or economic “matters” (said Professor Dellinger). If the argument that the government is regulating economic activity is so straightforward, one might imagine that the government could by now have settled on a single theory of what activity is being regulating. And academics would not continue to shift the discussion to the tax power. But no.

In addition to groping for some way to describe inactivity as activity so as to bring the mandate under existing doctrine, the government has also relied upon a concurring opinion of Justice Scalia that Congress may reach noneconomic activity that is essential to the regulation of interstate commerce — and opinion in which Justice Scalia uses the terms “activity” or “activities” forty-two times. Perhaps Justice Scalia will someday extend this theory to include the power to regulating inactivity (or to mandate that persons engage in economic activity) when doing so is essential to a broader regulatory scheme, and it will be adopted by five justices. But that is not yet current doctrine, so we will just have to wait and see. Certainly a lower court judge is under no obligation to adhere to an extrapolation from Justice Scalia’s concurring opinion.

He made plain that his attack on the health care statute is a means to severely limit the power of Congress, urging senators to reach their “own judgment about the scope of Congressional powers,” regardless of “how the Supreme Court” has ruled.

The second part of this sentence is true. I did tell the Senators that, even if the Supreme Court would uphold the mandate, they each take an oath to obey the Constitution and they each had a duty to reach their own judgment about whether the mandate was truly necessary and proper. If they concluded it was either unnecessary or improper, then they should also conclude it was unconstitutional and vote to repeal it. There is nothing particularly controversial about this. Senate rules include a procedure by which any Senator can make a point of constitutional order if he or she thinks a bill is unconstitutional. On this matter, Charles Fried backed me up. (For some reason, the Times failed to mention Professor Fried’s testimony, which also supported the constitutionality of the mandate.)

But the first part of this sentence is entirely false. Declaring that Congress lacks the power to impose economic mandates on the people under the Commerce Clause would affect one, and only one, law ever enacted in the history of this country: The Affordable Care Act of 2010. This is because Congress has never done this before, which is conceded even by the federal judges who upheld the mandate’s constitutionality. So absolutely nothing in my arguments, or those of the plaintiffs, or those of Judge Vinson’s opinion, would limit Congress from doing anything it ever has before done. And this fact makes it much more likely that the Supreme Court would find it unconstitutional, as such a ruling would affect just one law.

To Prof. Dellinger, the Constitution’s commerce clause gives Congress broad authority to regulate economic activity crossing state lines if the regulation is necessary and proper.

Well, Professor Dellinger and I agree that existing Supreme Court doctrine certainly gives Congress this authority, which is all that matters for this litigation, and explains why no one is challenging this proposition.

The statute’s linked provisions prohibiting companies from denying coverage to people with pre-existing conditions and requiring most Americans to have minimum coverage fit that understanding.

The first half of this sentence is not being contested by me or anyone else. I was asked this point blank at the hearing and answered the question unequivocally. The second part of this sentence is a conclusion, not an argument. It restates the government’s claim rather than providing a reason for believing the claim is valid under existing doctrine.

Prof. Barnett contends that the mandate goes beyond regulating health insurance by regulating “inactivity” and penalizing people who refuse to buy insurance. He said that giving government that power would allow it to compel virtually anything.

I may well have said this as a short hand, but the real argument is that it is the rationale(s) being offered on behalf of the mandate which would give Congress the power to mandate anything (but see below).

We disagree, and so do years of judicial precedent. The Constitution contains limits on improper mandates by preserving a wide range of personal choices.

If the Times is referring to the Due Process Clause, then this actually is a concession that the Times believe that the only constraints on the Commerce Power is to be found in the Bill of Rights. And this means that, by its reading, the powers identified in Article I, Section 8 are unlimited (except as qualified by the Bill of Rights), just like the plenary police power of the states. But this proposition has been rejected by “years of judicial precedent” that reaffirmed that the powers enumerated in Article I, Section 8 are few and limited, and do not have the same scope as the police powers of states, which are numerous and broad. And Professors Dellinger and Fried know, even if the editors of the Times do not, that the current constitutional protections of “personal choices” are extremely narrow thanks, among other things, to the “lost” Ninth Amendment and Privileges or Immunities Clause of the Fourteenth Amendment.

And while the idea of penalizing people for not acting sounds ominous, it inaccurately describes the problem. When people don’t buy health insurance — because they can’t afford it or think they don’t need it — the cost of treating them falls on the national economy.

This does not describe a constitutional principle. The courts have long refrained from assessing the factual “necessity” of a measure. What is needed is a judicially administrable constitutional principle, like the distinction between “economic” and “noneconomic” activity, or the distinction between “activity” and “inactivity.“

Prof. Dellinger explained how one of the biggest controversies in American law can be resolved by applying mainstream understanding of the Constitution. Of the mandate, he concluded, “Will it lead to some extraordinary expanse of congressional power? It will not.”

To be sure, this was Professor Dellinger’s prediction, but he offered no constitutional principle explaining what constitutional limits might exist on the power of Congress to impose economic mandates. The only constraint to which he alluded was political. Indeed, Professor Fried forthrightly denied there were any constitutional limits on the power of Congress to mandate economic activity. In his testimony, he said Congress could mandate that everyone to buy gym memberships, or broccoli. He merely denied it could not make you go to the gym or eat the broccoli it made you buy, presumably because it would violate what he called the “Liberty Clause” of the Constitution. Again, this was to assert rather than deny that the Commerce and Necessary and Proper Clauses are, in and of themselves, unlimited. That was both his and Professor Dellinger’s position. When coupled with the Necessary and Proper Clause, on their reading the power of Congress “to regulate commerce . . . among the several states” in itself is without any limit.

Prof. Barnett left no doubt that he was promoting a broader agenda. If the mandate is upheld, he warned sensationally, “Congress would have all the discretionary power of a king and the American people would be reduced to its subjects.”

My views on the Constitution and how it should be interpreted are a matter of public record. My only agenda with regard to the mandate, however, is to stop the courts from recognizing an entirely new and dangerous extension of Congress’s prerogative powers to provide for the good of the realm. About that I have also been completely candid.

His re-reading of the Constitution would remove that made-up peril. Based on no good reason, it would also fundamentally weaken government’s ability to address many of the nation’s most serious problems.

In my testimony, I offered no interpretations or “reading” of the Constitution itself. I confined myself entirely to existing doctrines of the Supreme Court defining the scope of the Commerce and Necessary and Proper clauses. I do not see how denying Congress a power that it has never before seen any need to exercise, could possibly “fundamentally weaken its ability to address many of the nation’s most serious problems.” There are other ways to address this particular problem. Does the Times expect the government to use mandates in the future to address others? Which ones? Inquiring minds want to know.

PS: After my testimony, Senator Durbin followed up with some additional questions. One of which was this one:

Orin Kerr is a professor at the George Washington University Law School and a former Republican staff member of this committee. Professor Kerr wrote that Judge Vinson in his decision “is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way.” Do you believe it is preferable for a district court judge to base decisions on the way the judge thinks existing law should be as a matter of first principles, or for a judge to base decisions on relevant Supreme Court doctrine?

I cannot say I completely understand what Orin is claiming here, but it seems similar to his previous claim that I was interpreting the Constitution “as it ought to be” rather than “as it is.” Only now a federal judge is describing “existing law” as it ought to be rather than as it “is.” I do not believe that Judge Vinson has misstated existing doctrine in any way. Instead, he is relying on an accurate account of “relevant Supreme Court doctrine” (as am I). Orin obviously disagrees, but I don’t see how it advances our understanding to accuse Judge Vinson of “reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles.” This strikes me as an ad hominum argument, but perhaps I am mistaken about this. Still, since the government is seeking judicial authorization for a new power to impose economic mandates, I suppose first principles may well be implicated in assessing its proposal to go beyond existing doctrine — or whether a reading of Supreme Court doctrine that leads to the effective demise of the enumerated powers scheme is a “proper” interpretation of the commerce power.




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(Ilya Somin)

For those who may be interested, I will be debating the constitutionality of the Obama health care plan individual mandate with Simon Lazarus of the National Senior Citizens’ Law Center on Tuesday night at 7 PM. The debate will be held at George Mason University on in Founders Hall, Room 134. The debate is sponsored by the American Constitution Society (the liberal counterpart to the Federalist Society), and is open to the public as well as George Mason students.




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