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Archive
Home > Blog > March 2010

March 2010

  • March 24, 2010

    Ongoing Debate Over Constitutionality of Health Care Reform

    With a string of state attorneys general filing lawsuits challenging the constitutionality of health care reform, the Cato Institute's Roger Pilon tried to defend their actions in an MSNBC debate. Pilon maintained that the Constitution does not allow for health care reform that was just enacted. Ian Millhiser, policy analyst at the Center for American Progress and a former ACS law clerk, noting recent Supreme Court jurisprudence, said that Congress can regulate "broad and sweeping economic activity," and that "there is a huge market for health care insurances"

    In response to Pilon's broad claim that health care reform is not permissible under the Constitution, Millhiser noted that such an interpretation would mean that Medicare and Medicaid would also be unconstitutional. Pilon said, "Absolutely right, Ian, I'm not going to disagree with you." Watch the entire debate below.

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    Tags:
    Executive power, Supreme Court, Constitutional Interpretation and Change, Health Care Reform, Ian Millhiser, Roger Pilon
  • March 24, 2010

    “Kiyemba II” – Cruel and Unusual Punishment Determined Constitutional

    Guest Post
    By Maj. (Ret.) Eric Montalvo, Esq., Partner at Puckett & Faraj, PC, in Washington, D.C. and former Marine Corps Judge Advocate General (JAG). Eric currently specializes in national security law, military criminal law, and military administrative law. He has handled several Military Commission cases including U.S. v. Al Bahlul, U.S. v. Hawsawi (the alleged 9/11 co-conspirator), and the case of the U.S. v. Jawad, fighting for and securing the release of one of the youngest Guantanamo Bay detainees in 2009.

    The Supreme Court on Monday declined to review the D.C. Circuit Court's ruling in Kiyemba V. Obama (Supreme Court docket 09-581). The D.C. Circuit Court held that the judiciary may not review executive branch decisions regarding when or where to transfer detainees that it is prepared to release from Guantanamo Bay. This case is now informally referred to as "Kiyemba II." Ten current Guantanamo detainees who have been cleared for release object to being returned to their country of national origin out of fear or concern for their safety and well-being.

    In Kiyemba I, the Court granted certiorari on the question of "whether a federal court exercising habeas jurisdiction has the power to order the release of prisoners held at Guantanamo Bay "where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy." In the vacation and remand to the D.C. Circuit Court the Supreme Court held that "no court has yet ruled in this case in light of the new facts, and we decline to be the first to do so."

    The Court's ruling creates uncertainty in the system which is already wrought with indecision and indefinite consternation. The Supreme Court has created an exception to the general rule that a court loses jurisdiction where there is no case or controversy and a court's decision will no longer have an impact on plaintiff. The Court has recognized that some questions may involve proceedings that are frequently repetitive, but come to a conclusion prior to the normal life cycle of litigation effectively depriving the Court of jurisdiction. The Court may assume jurisdiction where there was injury that was "capable of repetition, yet evading review." The classic example of the Court utilizing this exception is in the abortion line cases. These cases present such a circumstance and allow the government to alter the justiciability issue simply by changing the facts in the 9th inning.

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    Tags:
    Access to Justice, Executive power, Supreme Court, Other courts, Rights of detainees, Separation of powers, Separation of Powers and Federalism, D.C. Circuit, Eighth Amendment, Eric Montalvo, Guest Post, Kiyemba v. Obama
  • March 23, 2010

    Supreme Court Hears Argument Today on Whether NLRB Actually Still Exists

    Guest Post
    By Paul M. Secunda, Associate Professor of Law, Marquette University Law School

    This morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions.

    First, some labor law background: the NLRB is an independent federal agency, established to prevent and remedy violations of the National Labor Relations Act, 29 U.S.C. §§ 151-169, called "unfair labor practices," by both employers and unions, and also to hold union representation elections. The Board is supposed to be a five-member panel that primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent. The terms of the Board members are staggered such that the term of one Member expires each year. Because of the political nature of Board appointments (with the President's party controlling three positions), the last couple decades have seen many vacancies on the Board. In the last few years, political partisanship has reached an all-time high and President Obama's recent nomination of Craig Becker to serve as a Member on the Board was filibustered by Senate Republicans this past February.

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    Tags:
    Administrative law, Supreme Court, Labor law, Economic, Workplace and Environment Regulation, Craig Becker, Filibusters, Guest Post, New Process Steel v. NLRB, NLRB, Paul Secunda
  • March 23, 2010

    "Due Process and Consumer Debt"

    Guest Post
    David Tipson, Director, New York Appleseed. For more information on this initiative, please contact Mr. Tipson at 212.848.5468 or dtipson@appleseednetwork.org.

    Burdened by pervasive unemployment and other pressures of an ailing economy, a staggering number of New Yorkers now find themselves as defendants in consumer-debt lawsuits. The sheer number of cases filed in New York City Civil Court - about 300,000 in each of the past three years - has thrown into sharp relief several barriers to due process that seriously challenge the Court's ability to adjudicate consumer-debt cases fairly and effectively.

    At the root of this challenge is a gross disparity in power and information: While plaintiff debt collectors always have attorneys, the vast majority of defendants lack legal representation of any kind. Unaware of their rights and confused by the litigation process, these defendants are handicapped well before they appear in the courtroom (if they know to do so at all), and all too often the result is an unfair settlement or judgment.

    A new report by New York Appleseed, a nonprofit organization dedicated to social and economic justice, identifies these problems and presents a number of simple, inexpensive reforms.

    "Due Process and Consumer Debt: Eliminating Barriers to Justice in Consumer Credit Cases," available here, was produced in collaboration with volunteer attorneys from the New York office of Jones Day who reviewed nearly 700 court filings and interviewed over 40 judges, court staff members, and civil court advocates. Among the reforms proposed are increased procedural protections (including expanded notice requirements); greater compensation for process servers to remove incentives for "sewer service" (i.e. intentional failure to serve defendants); and improved access to the courts for litigants.

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    Tags:
    Access to Justice, Legal services, Appleseed, David Tipson, Due Process and Consumer Debt, Guest Post, Sewer Service
  • March 22, 2010

    Conservatives Look to Courts to Overturn Health Care Reform. Experts Say Think Again

    Several months ago as the Senate was debating the health care reform legislation, ACS released an influential Issue Brief countering arguments that the legislation was on wobbly constitutional grounds. Now, with passage of the historic reform legislation by the House and the promised signature of President Obama (pictured with Vice President Biden, celebrating House passage of health care reform) opponents are renewing their efforts to challenge the legislation as unconstitutional. Indeed several state attorneys general are threatening lawsuits, and The Atlantic's Andrew Cohen blasts some opponents for dredging up a widely discredited doctrine used by opponents of the Civil Rights Movement in their attempts to scuttle health care reform.

    Cohen writes:

    The largely discredited doctrine posits that the effect of Supreme Court decisions or other "encroachment" by the federal government may validly be blocked by the "interposition" of a viable state right (say, under the 10th Amendment) between the feds and the subject of the constitutional pronouncement. It's the theoretical equivalent, in other words, of a state official standing in front of a schoolhouse door blocking a lawfully-registered student from entering. It garners a lot of heat, and even a little bit of historical light, but has no tangible support in modern American law.

    In light of the renewed attacks, ACS is re-releasing the Issue Brief, "Mandatory Health Insurance: Is It Constitutional?" by Simon Lazarus, public policy counsel to the National Senior Citizens Law Center. The brief, which was cited in Senate floor debate and media, concludes that the mandate for individuals to purchase health care insurance is "lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or its authority to ‘lay and collect taxes to provide for the General Welfare.'"

    Lazarus continues:

    Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals.

    ...

    No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justice across the Court's ideological spectrum.

    Returning to the disquieting employment of "interposition" to attack health care reform, Cohen adds:

    When modern-day reactionaries cry "interposition" now, on the other hand, it is largely to protect from federal tinkering an unworkable, expensive status quo on health care. Sure, interpositionists today talk about sinister federal intrusion, and the expense of it all, and of saving themselves from the tyranny of government-issued health care bureaucrats. But the effect of their work would be to protect insurance companies and Big Pharma. It would be to keep millions of Americans without better access to health insurance.

    Other constitutional law experts have rebuffed opponents' claims that the individual mandate to purchase health care insurance is unconstitutional. See their articles here, here, and here.

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    Tags:
    Executive power, Federalism, Constitutional Interpretation and Change, Health Care Reform, individual mandates, Simon Lazarus
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