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Home > Blog > February 2011

February 2011

  • February 7, 2011

    Critics Continue to Thrash Federal Judge’s Opinion Invalidating Landmark Health Care Law

    The criticism continues to mount over U.S. District Judge Roger Vinson's ruling in the Florida Attorney General's legal challenge to the landmark Affordable Care Act (ACA).

    Last week, a group of scholars at the Center for American Progress provided a devastating interactive assessment of the judge's opinion, revealing it to be one riddled with historical inaccuracies and teetering on a wobbly understanding of Supreme Court precedent.

    Now a leading constitutional law expert and Yale Law School professor has penned an op-ed for the Los Angeles Times offering a scathing critique of Vinson's work.

    Professor Akhil Reed Amar says that after reading Vinson's opinion, in which the judge invalidates the entire health care law because he says Congress does not have the constitutional authority to enact the law's individual responsibility provision, he found one thing immediately clear: "My students understand the Constitution better than the judge."

    Amar says the "central issue" in the legal challenges to the health care reform law is "how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland." Chief Justice John Marshall (right), Amar writes, said the Constitution provides Congress implied and expressed powers. There have been only two times, the professor continues, since 1937 that the Supreme Court has found that federal action goes beyond Congress's constitutional powers. Specifically those instances were ones that fell outside Congress's constitutional power to regulate commerce among the states.

    But the landmark health care law, Amar says, as do many other constitutional law experts, clearly regulates an industry that crisscrosses the entire nation. The health care law regulates an industry "that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state."

    He continues that there is nothing "improper in the means" that the Affordable Care Act uses to regulate that industry either. "Laws," he writes, "may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing."

    The opponents looking to tear down the landmark health care reform law should back politicians that support its repeal, Amar says, not "use seats on the lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

    In his conclusion, Amar notes another "judge named Roger," who gave the country a high court decision that ranks among the Supreme Court's most despicable opinions.

    Amar concludes:

    The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

    History has not been kind to that judge. Roger Vinson, meet Roger Taney.

    More
    Tags:
    Supreme Court, Other courts, Constitutional Interpretation and Change, Affordable Care Act, Akhil Reed Amar, Health Care Reform, individual mandate, Judge Roger Vinson
  • February 4, 2011

    The Legal and Logical Fallacies of Judge Vinson’s Severability Analysis

    Guest Post
    By Steve Vladeck and Amanda Frost, professors at American University Washington College of Law.
    One of the most remarkable aspects of Judge Vinson's January 31 decision invalidating the Patient Protection and Affordable Care Act ("PPACA" or "Act") was his conclusion that the individual mandate (which he found to exceed Congress's power) could not be severed from the rest of the Act. As such, Judge Vinson concluded that his only choice was to strike down the Act in its entirety, even though most of the 2,700-page bill has very little to do with the requirement that all Americans carry health insurance.

    And yet, as Judge Vinson acknowledged, and as is black-letter law, Congress's intent is the touchstone of severability analysis, and there is a presumption in favor of severability. As we explain below, Judge Vinson was mistaken both legally and logically in his conclusion that Congress would have wanted the entire statute to fall once the individual mandate was struck down. Congress enacted a statute with hundreds of provisions, many entirely unrelated to the individual mandate, and thus it is at best unclear whether or not Congress would have intended the rest of the Act to fall if the individual mandate were struck down. As such, the presumption in favor of severability should have led him to the opposite conclusion. Instead, Judge Vinson's unnecessary analysis smacks of the very judicial activism that his opinion so often decried.
    More
    Tags:
    Fidelity to the Constitution, Supreme Court, Other courts, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Affordable Care Act, Commerce Clause, Guest Post, health care, Health Care Reform
  • February 4, 2011

    This Week in Judicial Nominations

    In the days following White House Counsel Robert Bauer's announcement Tuesday at an ACS National Press Club event that the administration will aggressively push forward judicial nominations, both the Senate and President Obama have taken actions toward that end.

    Today, the full Senate scheduled votes on three nominees for Monday. According to the Senate Democrats' schedule, the Senate plans to confirm by unanimous consent Marco Hernandez for the U.S. District Court for the District of Oregon, and has scheduled debate and votes for Monday on Paul Holmes for the Western District of Arkansas, and Diana Saldaña for the Southern District of Texas.

    Yesterday, the Senate Judiciary Committee approved 11 nominees by voice vote, clearing the way for consideration of these nominees by the full Senate.

    And Wednesday, President Obama "took a tougher line with Republican senators who object to his choice of federal judges," announcing the nomination of a judge in Oklahoma over the objection of the state's two senators, an "apparent first for Obama," The Blog of Legal Times reports.

    The nominee, Arvo Mikkanen, who would sit on the Western District of Oklahoma if confirmed, would be the only American Indian serving as a federal judge, and the third in U.S. history, according to The BLT.

    During his remarks Tuesday, Bauer addressed the issue of senators' objections to Obama nominations, saying:

    More
    Tags:
    Access to Justice, Other courts, Judicial Nominations, Robert Bauer, William P. Marshall
  • February 4, 2011

    Leading Ariz. State Lawmaker Pushes ‘Nullification’ Bill

    Arizona has joined a growing number of states that are considering laws that would allow them to "nullify" federal law or action. The bills, fueled by far right-wing politicos, are constitutionally suspect, as attorney Katherine Jack notes in this ACSblog guest post.

    The Arizona Republic columnist E.J. Montini, notes that the measure, if constitutional, would allow the state to secede "without officially doing so."

    Montini writes:

    In every legislative session in every state throughout the land there are proposals like this, usually made by a few fringe members who know their proposal has no chance but file it anyway to serve some personal or political agenda.

    In this instance, legislators here -- who claim to be strict constitutionalists -- seem fairly willing to ignore what is commonly called the "supremacy clause" of the U.S. Constitution (as well as the Fourteenth Amendment), and which more or less say that federal law supersedes state law.

    A state or a person can challenge such laws in court. But a state can't on its own simply declare a federal law to be unconstitutional.

    The "wacky" measure, however, is being pushed by the state Senate President Russell Pearce, "the most powerful person in state government," Montini notes. That makes the matter, he writes, "much less of a laughing matter."

    More
    Tags:
    Separation of powers, Separation of Powers and Federalism, Arizona, E.J. Montini, nullification, Sen. Russell Pearce
  • February 4, 2011

    Argument, History on Side of Health Care Law Supporters, Prof. David Cole Says

    The federal court decisions striking an integral provision of the landmark health care reform law may be causing consternation among supporters of the law, but Georgetown University law school professor David Cole writes that defenders of the law "have both the better argument and the force of history on their side."

    In an essay for The New York Review of Books, Cole takes an extensive and accessible look at Congress's constitutional authority to regulate health care and concludes that the opponents are pinning their hopes on jurisprudence that the "Supreme Court has long since abandoned, and abandoned for good reason. To uphold Judge Hudson's [federal judge in Virginia who ruled against the health care law] decision would require the rewriting of several major and well-established tenets of constitutional law. Even the Supreme Court, as conservative a court as we have had in living memory, is unlikely to do that," Cole writes.

    The opponents of the health care reform law, the Patient Protection and Affordable Care Act, argue that they are concerned with "state's rights," and unlimited federal power. But Cole counters that opponents really carry a libertarian-based objection to "compelling individuals to act for the collective good, no matter who imposes the obligation."

    The Constitution, however, does not support the libertarian argument. Instead the nation's founding document provides Congress the power to regulate commerce, and to create laws "necessary and proper" to exercise congressional power.

    Regarding the commerce clause, Cole writes that around 1937 the Supreme Court recognized that "Congress's power to regulate ‘interstate commerce' became, in effect, the power to regulate ‘commerce' generally. (As Cole notes, the high court finally realized what many had long argued "and what the Depression had driven home - that in a modern-day, interdependent national economy, local production necessarily affects interstate commerce, and there is no meaningful distinction between ‘direct' and ‘indirect' effects.")

    Since then Supreme Court precedent has supported a broad view of Congress's power to regulate commerce. Cole writes:

    Under these precedents, a citizen's decision to forgo insurance, like the farmer's decision to forgo the wheat market and grow wheat at home, easily falls within Congress's Commerce Clause power. When aggregated, those decisions will shift billions of dollars of costs each year from the uninsured to taxpayers and the insured. As a practical matter, there is no opting out of the health care market, since everyone eventually needs medical treatment, and very few can afford to pay their way when the time comes.

    ...

    That one might affix the label ‘inactivity' to a decision to shift one's own costs to others does not negate the fact that such economic decisions have substantial effects on the insurance market, and that their regulation is ‘an essential part of a larger regulation of economic activity.'"

    Cole's entire essay is available here.

    In a separate piece for The New York Review of Books' "NYRblog," Cole notes the recent opinion from the federal judge in Florida invalidating the health care reform law, because of the individual coverage provision. Vinson, like Hudson, also relied on outdated precedent, to forge his opinion. But, as Cole writes, only days after Vinson's decision, Charles Fried, a Harvard law school professor and former Solicitor General during the Reagan administration, told the Senate Judiciary Committee that Vinson's "rational was clearly wrong, and that the health care law is plainly constitutional."

    Also on the health care litigation front, The Huffington Post reports that a federal judge in Missouri has dismissed a legal challenge to the individual coverage provision of the health care law. U.S. District Court Judge Keith Starret tossed aside the lawsuit saying the plaintiffs did not have standing to bring the case.

    More
    Tags:
    Constitutional Interpretation and Change, Affordable Care Act, Health Care Reform, Professor David Cole
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