October 2010

  • October 29, 2010
    Guest Post

    By Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School
    Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California's same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief's lead counsel is Virginia attorney general Ken Cuccinelli (pictured), a darling of social conservatives and the Tea Party movement.

    The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I'll explain, these attorneys general -- call them the Cuccinelli 13 -- don't really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

    As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it's a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

    What's interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

    Taking aim at the judge who invalidated California's Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court's "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13's real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas - what the AGs call "the acquired cultural wisdom of citizens" - about marriage.

  • October 29, 2010

    President Barack Obama twice called for reform of the filibuster-one of the procedural tactics that has been used to block confirmation of judicial nominees-this week: first during a meeting with liberal bloggers and again during an appearance on "The Daily Show." "What we've been seeing is unprecedented, and that makes it very difficult for us to move forward," Obama told host Jon Stewart. During his earlier meeting with progressive bloggers, the president said the filibuster is not in the Constitution and "may have arisen purely by accident because somebody didn't properly apply Robert's Rules of Procedure and forgot to get a provision in there about what was required to close debate. And folks figured out very early, this could be a powerful tool. It was used as a limited tool throughout its history. Sadly, the primary way it was used was to prevent African Americans from achieving civil rights."


    The filibuster and other procedural measures have allowed a minority in the Senate to impede the confirmation of qualified nominees, leading to a critical number of vacancies on the federal bench. Matthew Yglesias, a fellow with the Center for American Progress Action Fund, touches on this connection in a video podcast interview with ACSblog here.

  • October 29, 2010

    President Barack Obama is not the only one calling for reform of the filibuster this week. Progressive blogger Matthew Yglesias talked with ACSblog about the filibuster's impact on the judicial confirmations process, following a lunchtime discussion with members of ACS's Washington, D.C. Chapter on unprecedented abuse of the filibuster and prospects for change.

    Yglesias, a fellow with the Center for American Progress Action Fund, explained that use of the filibuster used to be rare, but that in recent years, "it's become the case that absolutely everything is put up for a 60-vote threshold. We've seen a huge increase in the use of somewhat obscure procedural tactics purely to delay things, so that even when the votes exist to pass a measure or confirm somebody, it can take many many days' worth of Senate floor time to actually get that vote scheduled."

    This delay takes a particular toll on the confirmation process, because no one nomination seems worth the time it would take to get to a vote, even when the nominee easily has the votes to be confirmed, Yglesias explained.

    "We have a huge number of vacancies and no real prospect for getting them filled unless there's some kind of change in the procedures," Yglesias said.

    Watch the interview below, or click here to download it as a podcast:

    Visit JudicialNominations.org to learn more about the judicial vacancies crisis and track developments.

  • October 29, 2010
    Guest Post

    By Jessica Jackson, a third-year law student at Santa Clara Law and an ACS Student Board Member. The following is Jackson's experience with Constitution in the Classroom, an ACS program intended to raise awareness of fundamental constitutional principles by placing our members in primary and secondary school classrooms. More information about volunteering for the program is available here.

    As I walked into the brightly decorated 7th grade classroom at Burbank Middle School, I felt a pang of nerves hit me. Although I am a third-year law student whose interest in the Constitution began in college, I worried about being able to adequately convey our lesson plan to these children. My first task was to write the words of the Fourth Amendment on the classroom white board. The kids looked on with interest as I wrote, and several of them began whispering.

    To break the ice, our group had decided to kick off our lesson with a skit to define what might constitute a search under the Fourth Amendment. One of the group members walked in wearing a backpack and pretended to be a student. Wearing aviators, another group member played the police officer first standing in the "student" group member's way and then later actually telling him to "Stop." We then asked the students which of these they thought might be a seizure. As they all began calling out, my nervousness melted and the fun began!

    Throughout the presentation we took turns defining the various portions of the amendment, acting in skits to illustrate the concepts, and calling on the students who were eager to chime in. In one of the skits, I pretended to be a police officer looking for a stolen car. Operating on an anonymous tip, I attempted to look for the stolen car in a shoe box, but the students, realizing that a shoe box is not a reasonable place to search because it is too small to hold a car, roared in laughter and called out "illegal search" when I pulled out a Hannah Montana microphone and began to sing.

    As the hour flew by, the students became even more involved, wanting to participate in the skits and competing to answer our questions. Before we said goodbye, we gave each student an ACS pocket Constitution and requested that they go home and share what they learned with their parents, siblings, and friends. They smiled and posed for pictures with their Constitutions held high in the air.

    Santa Clara's ACS chapter was lucky to have enough volunteers to bring the Constitution to over 350 middle school and elementary school students on Constitution Day. Our hard work was rewarded when chapter volunteers requested that we organize another visit this spring and other teachers at the middle school emailed to request that we come to their classrooms as well. All in all, Constitution in the Classroom was an amazing experience that allowed us to not only take a break from the normal law school curriculum and chapter activities but to introduce a group of students to the Constitution and the legal profession.

  • October 28, 2010
    The New York Times provides a robust defense of the Affordable Care Act's so-called individual mandate, which is the target of many of the lawsuits aimed at scuttling the Obama administration's landmark health care reform law.

    The Times' editorial follows one from the Los Angeles Times, which called the mandate the most divisive, but "crucial" component of the law. The health care reform law's provision requires persons to obtain health care insurance starting in 2014 or pay a tax.

    The Times states:

    A mandate is key for reducing the ranks of the uninsured, who often turn to emergency rooms for care, driving up everyone's costs. Spreading the costs - among healthy and sick - is also the only way to make many of the most popular reforms work, including those that bar insurers from denying coverage to people with pre-existing conditions or from setting annual limits on benefits.

    Lawsuits lodged in Virginia and Florida by state attorneys general, and similar ones filed by conservative groups, argue that Congress exceeded its constitutional powers on several fronts. The individual mandate, however, is a major target of the opponents, who argue that Congress cannot force people to buy health care insurance, or that so-called inactivity, not purchasing insurance, cannot be regulated by Congress.

    As noted on this blog, numerous times, constitutional law experts have repeatedly said the opponents' arguments are wobbly, and as maintained by the National Senior Citizens Law Center's Simon Lazarus, the rhetoric used to advance those arguments is misleading. As Lazarus wrote in a piece for the Newsweek, the proper question is whether Congress can "ensure that all persons have access to affordable health care insurance, even if they have preexisting conditions?" Instead, opponents repeatedly ask whether Congress can require individuals to enter the health care insurance market or purchase a commercial product. It's the wrong question advancing a weak legal argument, Lazarus, author of an ACS Issue Brief on the constitutionality of the mandate, says.

    As noted by The Times editorial, the only federal judge to rule on the constitutionality of the health care reform law's mandate is U.S. District Judge George Steeh, who dismissed the opponents arguments. Instead Steeh wrote that the uninsured actively add to the nation's high cost of health care for everyone. The judge concluded in Thomas More Law Center v. Obama that individuals who put off buying health care insurance are "making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2003, onto other market participants."

    The Times editorial concludes:

    We agree. Most uninsured people who are badly injured or come seriously ill cannot afford to pay their medical bills. Their tab is picked up - some $43 billion in 2008 - by others, including federal, state and local governments and their taxpayers, health care providers, and people who are insured.