December 2010

Epps, also a correspondent for the Atlantic, notes that Jude Henry Hudson's recent decision striking the landmark health care reform law's individual coverage provision as a violation of the Constitution's Commerce Clause, is "about as significant as an early NBA playoff game," but if it were advanced and eventually embraced by the Supreme Court's conservative justices, who might not be able to "resist the temptation to deliver a knockout blow to a president they despise, it would seriously hamper a Congress' ability to run a "modern economy."

Epps writes:

Imagine for a moment a sudden outbreak of smallpox (weaponized smallpox, if your taste runs to Jack Bauer-style scenarios). Airborne, highly contagious, deadly, it has the capability of spreading across the country and beyond in weeks, if not contained with a program of vaccination - vaccination not for a few, but for everybody, as soon as possible.

If Congress passed emergency authorization for the program, would you want a judge to block it? What if some citizens preferred not to be vaccinated? What if they promised Scout's honor not to get smallpox, or if they did, not to give it to anyone else?

Would you want the judge to halt the program on the grounds that not getting vaccinated was ‘inactivity,' and thus beyond Congress's power over ‘to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes?' Those who refused vaccination might act as reservoirs of the disease, and thus affect commerce. What if the judge conceded that point, but said Congress still couldn't reach them because they weren't voluntarily in the stream of commerce?

...

While the disease spread, and hundreds or even thousands died, would you thank the judge for his fidelity to the pre-1937 vision of the Commerce Clause? Or would you think that, no matter what was written in the judge's order, the irretrievable spread of the epidemic really had affected commerce and should have been stopped?

Judge Hudson in Virginia v. Sebelius advanced a pre-1937 vision of the commerce clause in striking the Affordable Care Act's individual coverage provision and produced an opinion that is "grievously wrong," Epps writes. "Threat-to-the-nation-from-rampaging-smallpox wrong."

Epps, a professor of law at the University of Baltimore School of Law, says that his critics will charge that he believes that Congress "can regulate all human activity."

But not surprisingly those critics, employing simplicity, miss the mark. Congress cannot regulate everything, Epps continues, but it can regulate "everything that needs to be reached as part of a comprehensive scheme required by a necessity that affects the nation."

And, Professor Epps asks, "Who could seriously claim that the 50.7 million people who currently have no health care do not constitute an emergency?"

The vacancy rate on our federal courts has reached crisis level, and it's time to "shift from low gear into overdrive in order to turn this situation around and provide the judges that we need to serve the American people," American Bar Association President-Elect Wm. T. (Bill) Robinson III told ACSblog during a video interview.

"We have a growing concern that politics is overtaking the process and results are not being achieved," Robinson said. "And the public is just not being served."

Robinson, who recently participated in an ACS panel discussion on the judicial selection and confirmation process, said the ABA is ramping up its efforts to make the public aware of the severity and consequences of a continuing vacancy crisis.

This week, The Huffington Post reported that Obama's judges are now being blocked at a "historic rate ... what began as a slow process of confirmation has ballooned into a full-blown judicial crisis." And The New York Times added its voice to the long list of editorial boards and commentators calling on the Senate to take a vote on all judicial nominees during the lame duck session.

Watch the interview with Robinson below.