October 2010

U.S. District Court Judge Roger Vinson rejected the federal government's motion to dismiss the lawsuit, but said his order did not reach the constitutional questions involved. "In this order," Vinson wrote, "I have not attempted to determine whether the line between constitutional and extra-constitutional government has been crossed. I am only saying that ... the plaintiffs have at least stated a plausible claim that the line has been crossed."

McCollum's legal challenge was joined by nineteen other states and the National Federation of Independent Business (NFIB). In a press release lauding the court's action, McCollum reiterated his belief that the health care reform law's provision that requires individuals to purchase health care insurance or pay a penalty exceeds Congress's power to regulate interstate commerce.

Last week a federal judge in Michigan did rule on the constitutionality of the health care reform law's individual mandate. U.S. District Court Judge George Steeh rejected the conservative Thomas More Law Center's charge that the reform law's individual mandate exceeds Congress's constitutional power. "Far from ‘inactivity,' by choosing to forgo insurance plaintiffs 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 2008, onto other market participants," Steeh wrote.

ACS and the Center for American Progress (CAP) hosted a press call today with constitutional and health care law experts on the numerous legal challenges to the health care reform law.

Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, noted at the start of the call that there have already been three decisions from federal district courts on constitutional challenges to the reform law, all of which have been brought by conservative advocacy groups. In all three, Lazarus said that the challenges were rejected.

Lazarus said Judge Steeh's ruling was especially important because "it completely accepts and validates the core theory underlying the individual mandate that is the focus of most of the challenges." Lazarus said Steeh "clearly grasped the link between having such a mandatory requirement" and the ability to offer the patients' bill of rights that President Obama began implementing a couple of weeks ago. See recent commentary from Lazarus on the conservative efforts to topple the health care reform law and his ACS Issue Brief on the constitutionality of the individual mandate.

Timothy S. Jost, a health care law expert and law professor at the Washington and Lee University School of Law, and Neera Tanden, chief operating officer at CAP, and former Obama administration senior adviser on health care reform, also participated in the call. Audio of the press call is available here.

A report surveying justice systems in 35 nations shows that America's system is woefully serving large segments of the society, especially the poor and middle class, as The Huffington Post's Dan Froomkin notes.

"The Rule of Law Index," released yesterday by the World Justice Project shows that "when it comes to access to and affordability of legal counsel in civil disputes, the U.S. ranks 20 out of the 35 nations surveyed, below not only developed nations but also such countries as Mexico, Croatia and the Dominican Republic," Froomkin writes. He notes that the survey reveals that "when it comes to providing access to justice to its citizens," the U.S. ranks lowest "among 11 developed nations when it comes to providing access to justice to its citizens - and lower than some third-world nations in some categories."

Froomkin continues:

As part of its fact-finding, the organization polled 1,000 people in New York, Chicago and Los Angeles, and found a significant gap between the rich and the poor in terms of their use and satisfaction with the civil courts system.

More information about the Index and the project in general is available here.

Froomkin also noted that the Obama administration has worked to address gaping disparities among legal services that exist in various communities in part by creating the Access to Justice Initiative and selecting renowned constitutional scholar Laurence H. Tribe to lead it. At the 2010 ACS National Convention Tribe participated in a panel discussion regarding the government's role in improving legal services for the poor. Video of that panel discussion is available here. 

ACS has published several recent Issue Briefs studying the troubles besetting the nation's indigent defense system. Some of those reports include: "Restoring Access to Justice: The Impact of the Iqbal and Twombly on Federal Civil Rights Litigation," "Assessing the Indigent Defense System," "A Legislative Approach to Indigent Defense Reform," "Litigation Strategies for Dealing with the Indigent Defense Crisis," and "Overcoming Defiance of the Constitution: The Need for a Federal Role in Protecting the Right to Counsel in Georgia."