June 2011

  • June 30, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, author of two ACS issue briefs on the constitutionality of the Affordable Care Act’s individual responsibility provision, or “individual mandate,” and a frequent contributor to this blog and other blogs and periodicals. Lazarus’s ACS Issue Briefs are available here and here.


    As the various health reform legal challenges have proceeded through lower federal courts respectively hospitable and hostile, all parties, participants, and observers have agreed that in the end, the Supreme Court will resolve the fate of the Affordable Care Act’s (ACA) individual mandate to carry health insurance, paying little heed to the conflicting opinions of lower court judges.  But that assumption may need to be revisited, in light of Sixth Circuit Judge Jeffrey Sutton’s decision to join Carter appointee Boyce Martin in yesterday’s 2-1 ruling upholding the constitutionality of the ACA mandate.  It is just possible that Sutton’s 27-page opinion could be one to which members of the high court’s conservative bloc will give serious attention. 

    In part, that’s because of who Sutton (pictured) is.  Not only is he the conservative justices’ philosophical kin.  More important, he is their intellectual peer.  As noted on the conservative Volokh Conspiracy blog by Orin Kerr, “Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular ‘feeder’ judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate.”

    But more important than the pedigree of the author of this opinion is its content.  Of the – so far – four opinions upholding the mandate (by three district judges and by Judge Martin in the same case) Sutton’s methodical and bombast-free analysis is the most comprehensive in dissecting the issues raised by all the arguments devised by ACA opponents.

    Strategically, Sutton frames his argument as a right-leaning legal and policy wonk speaking to a Federalist Society conference, or a meeting with like-minded jurists.  In addition, Sutton acknowledges throughout that he is but a “middle-management judge,” respectfully mindful that his superiors on the Supreme Court will have the last word.  The argument clearly recognizes that, at bottom, this litigation is the latest phase of a fierce three decade-old war between two schools of conservative constitutionalism: on the one hand, the long dominant mainstream conservative vision celebrating judicial restraint, respect for precedent, and deference to elected decision-makers; on the other, libertarian anti-government activism, which had been confined to a small cadre of fervent but marginalized enthusiasts until 2010, when the tea party mobilized and opposition to ACA became Republican Party orthodoxy.  In light of his own history as a fervent promoter of a states’ rights-oriented concept of “federalism,” Sutton would have surprised no one had he gone with the new flow and come down hard against the mandate.  Instead, his opinion is an unambiguous recommendation to traditional conservatives, specifically, Justices Scalia, Kennedy, and Roberts, to stick to their knitting and leave this explosive policy debate to legislators and voters. 

    Sutton’s bottom-line holding that the Commerce and Necessary and Proper clauses authorize the mandate closely resembles his Democratic colleague Judge Martin’s opinion; indeed, prominent libertarian ACA opponent  Ilya Somin (who has twice appeared on ACS panels) termed theirs  the "Martin-Sutton approach" with “extremely radical implications” more “sweeping” than the three previous district court decisions favorable to the Obama administration.  But unlike Martin, who held it unnecessary to reach the question whether the mandate could be justified as an exercise of Congress’ tax-and-spend authority, Sutton began his opinion by elaborately rejecting the administration’s arguments in support of that claim.   Perhaps that introduction could remind readers, especially conservative readers, that the opinion’s author is no knee-jerk defender of Congressional prerogatives or the hated ACA in particular.

  • June 30, 2011
    Guest Post

    By Mary Kelly Persyn, Associate, Ramsey & Ehrlich


    Countless urban neighborhoods are drowning in a miserable mix of poverty, bad schools, food-deserts lacking grocery stores and food-swamps providing an overabundance of fast food (I’ve written previously in this space about health care reform and the power of real food), and a dearth of jobs. Every year, countless non-profit community agencies provide a stunning number of hours of service to these communities. Yet intergenerational poverty maintains its stubborn, iron grip. Time and again, children drop out of school and face pathless futures.

    It’s easier to design solutions to discrete problems than to back up and look at an entire social system. And so we try to improve the educational lot of poor children by spending more money per child, by lowering the teacher-to-student ratio, by going “back to basics,” or some other idea intended to leave no child behind.  But think of all that these approaches leave to the side: healthy, fresh food, without which children cannot retain facts and learn how to think; physical education opportunities, without which children are at a much higher risk of obesity; public safety, without which children live amidst the kind of stress and fear that fractures their ability to learn; and child care, without which children lack the kind of consistent adult guidance necessary to sustained learning. And we haven’t even touched health care.

    The scenario is similar if an agency tries to move the needle on unemployment by improving only an individual’s job-seeking skills.  We’ve left aside job development (are there even jobs to apply for?); public transit (where is the job, and can the person get there?); child care (who takes care of the children while Mom and Dad are working?); job skills; and -- critically important but often overlooked -- financial management skills like budgeting, saving, and improving credit scores.

    We face a situation where nothing seems to work -- the best-executed and best-intended interventions fail to move the needle, year after year after painful year.

    But where nothing works, everything might.

    Think about it.  What if we tried to solve an entire set of interconnected problems at once?

    Sounds a little crazy, doesn’t it?

  • June 29, 2011

    by Jeremy Leaming

    The Senate Judiciary Committee heard testimony today on how several recent Supreme Court decisions are undermining corporate accountability and limiting individuals’ abiilty to seek justice through the courts.

    The hearing focused on three cases: Wal-Mart v. Dukes, which blocked some 1.6 million women alleging discrimination by Wal-Mart from asserting their claims as a class, AT&T v. Concepcion, which upheld an arbitration clause banning consumers from disputing an AT&T charge as a class, and Janus Capital Group v. First Derivative Traders, which halted a lawsuit by investors alleging that Janus Capital knowingly made misleading statements.

    “In my view, each of these decisions gives corporations additional power to act in their own self-interest and limits the ability of Americans to have their day in court,” said Senate Judiciary Chairman Patrick Leahy at the start of the hearing.

    University of Colorado law professor Melissa Hart, who authored an ACS Issue Brief on state elimination of equal opportunity programs, echoed these concerns in her testimony about Wal-Mart and Conception, lamenting the court’s “hostility” toward the class action device.

  • June 29, 2011

    The Supreme Court in a decision issued earlier this month may have blocked one route for stockholders to challenge corporate fraud, but in doing so, may have “inadvertently left open a far more dangerous path for the plaintiffs’ bar: claims under the Racketeer Influenced and Corrupt Organizations Act, or RICO,” writes Howard A. Fischer for Thomson Reuters Accelus.

    Fischer, a senior trial counsel in the New York Regional Office of the Securities and Exchange Commission, analyzes the 5-4 decision in Janus Capital Group, Inc. v. First Derivative Traders, and concludes that the high court majority led by Justice Clarence Thomas may have unwittingly provided “the plaintiffs’ bar with a potential weapon far more powerful than the one it takes away. The Supreme Court appears to have ignored the warning of George Santayana that those who cannot learn from history are doomed to repeat it.”

  • June 29, 2011

    The U.S. Court of Appeals for the Sixth Circuit upheld as constitutional the individual minimum coverage provision of the landmark health care reform law, The Wall Street Journal reports.

    The three-judge panel in Thomas More Law Center v. Obama voted 2-1 in upholding the provision, which requires some individuals to start carrying health care insurance in 2014. Judge Jeffrey Sutton, appointed to the Sixth Circuit by President George W. Bush, concurred in the judgement upholding the health care law.

    “Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance,” Judge Boyce F. Martin Jr., wrote. The panel upheld a lower court opinion that found the minimum coverage provision did not run afoul of Congress’s power to regulate commerce.

    The Sixth Circuit also dismissed the argument that the minimum coverage provision of the Affordable Care Act (ACA) does not regulate economic activity, writing, “The minimum coverage provision regulates activity that is decidedly economic.”

    “The Act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader health care market,” Martin wrote. “Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring. Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs.

    “Thus, set aside the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation of the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services,” Martin continued.

    Read the decision here.

    Recently at the ACS 10th Anniversary National Convention, a panel of constitutional law experts and litigators explored the constitutionality of the minimum coverage provision. Indiana University law school professor Dawn Johnsen said the constitutionality of the provision, which is integral to other provisions of the law, especially the one that bars insurance companies from denying health coverage to people with pre-existing conditions, is an easy call. Johnsen said longstanding precedent regarding Congress’s commerce clause power allows for this type of regulation.

    Walter E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, also defended the constitutionality of the minimum coverage provision. Dellinger took umbrage with claims from right-wing advocates that the ACA, and in particular, its minimum coverage provision, is an overreach by the federal government that greatly erodes liberty.

    Dellinger said, “We hear talks about government intrusions into health care – this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Video of the panel discussion is available here.  

    For more information about the numerous legal challenges to the health care reform law, see ACS’s “The Affordable Care Act Resources Page.”