June 2011

  • June 10, 2011

    President Obama made four new district court nominations. Federal prosecutor Margo Kitsy Brodie was nominated to the U.S. District Court for the Eastern District of New York, federal prosecutor Jesse M. Furman to the Southern District of New York, commercial litigation lawyer Susie Morgan to the Eastern District of Louisiana, and U.S.

  • June 9, 2011
    Guest Post

    By Rick Hasen, Visiting Professor, University of California, Irvine School of Law and the author of Election Law Blog.


    When President Obama in his 2010 State of the Union speech criticized the Supreme Court’s decision in Citizens United, he got a lot of conservative flak. The President had said, among other things, that the 5-4 decision recognizing that corporations have a First Amendment right to spend money in federal elections overturned a 100-year-old campaign finance law.

    Thus, Bill Maurer, writing in the Weekly Standard, said:

    President Obama has been the most notable proponent of this myth. In the State of the Union he said that Citizens United “reversed a century of law that I believe will open the floodgates for special interests .  .  . to spend without limit in our elections.” In response, Justice Alito was seen shaking his head and mouthing the words “not true.” Alito was right. 

    While federal law has indeed prohibited corporations from directly contributing to federal candidates since 1907, that portion of the law was not at issue in Citizens United. It remains the law of the land. Direct corporate contributions to candidates are still banned. 

    It was a fair point, though there is some uncertainty as to how the 1907 law was interpreted before the 1940s, when it expressly banned not just corporate contributions to candidates but corporate and labor union independent spending as well. But now a federal district judge has overturned the direct contribution ban too, and done so against controlling Supreme Court precedent to the contrary.

  • June 9, 2011

    ACS Executive Director Caroline Fredrickson and the Cato Institute’s Michael F. Cannon took to NPR’s “Tell Me More,” to debate the constitutionality of a provision of the landmark health care reform law that requires individuals, starting in 2014, to maintain health care insurance.

    The call focused on some of the legal arguments aimed at scuttling the Patient Protection and Affordable Care Act, and followed yesterday’s oral argument in one of the primary lawsuits lodged against the Act.

    Citing some of the questioning from yesterday’s oral argument in the U.S. Court of Appeals for the Eleventh Circuit, NPR host Michel Martin asked Fredrickson about the opponents’ oft-repeated claim that Congress has overreached by requiring individuals to purchase health care insurance.

    Fredrickson said the opponents’ argument and framing of the questions avoid the central point, which involves the breadth of the Constitution’s commerce clause.

    “The commerce clause, which is the authority under which Congress passed the health care law, says nothing about activity or inactivity,” she said. “The touchstone really, as it has been under Supreme Court precedent for decades and decades -- is that does this affect interstate commerce? And when you are talking about an industry that affects 17 percent of our economy, it clearly does affect commerce; it’s clearly within the scope of the commerce clause."

    Fredrickson continued, “The real issue is, does Congress have the power under the commerce clause to regulate the health care industry, one of the biggest industries of our economy.”

    And “absolutely,” Congress has exercised its power in a constitutional manner, Fredrickson said.

    Cannon offered the Right’s claims that Congress has taken an expansive view of the commerce clause, and that if the Affordable Care Act’s individual responsibility provision were upheld by the courts, Congress will have “virtually unlimited control over the economy.” 

    Cannon, however, suggested that Congress would not have run afoul of constitutional strictures, if it had simply expanded Medicare.

    Fredrickson, responded, “The ironic moment here is that Michael admits that Medicare is fully founded in the Constitution – so we can have a government-run, universal program that Congress passed, but you can’t have a privately run system that Congress can help regulate.”

    The entire segment is below or available here. Also for more information on the various legal challenges to the health care law, visit ACS’s Affordable Care Act Resources page.

  • June 9, 2011
    BookTalk
    One Nation Under Surveillance
    A New Social Contract to Defend Freedom Without Sacrificing Liberty
    By: 
    Simon Chesterman

    By Simon Chesterman, Global Professor and Director of the New York University School of Law Singapore Program, and Vice Dean and Professor of Law at the National University of Singapore. His book, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty, is available now from Oxford University Press.


    The death of Osama bin Laden has started a debate about whether and how the United States can extricate itself from its military commitments in Afghanistan and Iraq. It is only a matter of time before public attention turns to whether the expansion in government surveillance powers over the past decade should also be rolled back.

    Don’t hold your breath.

  • June 9, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, which is counsel to respondent Independent Living Center in the case discussed in this post, supporting beneficiaries’ right to challenge state violations of spending clause statutes.


    On May 26 – seven business days before President Obama’s nominee for Solicitor General, Associate White House Counsel Donald Verrilli, was confirmed by the Senate – Acting Solicitor General Neal Katyal filed an amicus curiae brief in a Supreme Court case, Douglas v. Independent Living Center, asserting that beneficiaries of Medicaid and other safety net laws should no longer be permitted to request federal courts to “preempt” – i.e., invalidate – state laws that violate conflicting federal legal requirements.  That such a position could be taken in the name of this administration “bitterly disappointed” the administration’s most committed friends and supporters, in the words of Representative Henry Waxman.   The brief was filed over sustained opposition from Health & Human Services Secretary Kathleen Sebelius and, according to a “Capitol Hill” source quoted in a Politico story, "California Medicaid Cuts Pit HHS v. DOJ," “every health policy person and lawyer in the administration.”   There are several reasons for the widespread distress about this brief:

    First, the Acting Solicitor General’s argument contradicts the law as applied for decades, in scores of cases, by the Supreme Court and the lower federal courts.

    Contrary to the DOJ brief, all federal courts of appeal have held that the Supremacy Clause – which mandates that federal law is “the supreme law of the land” – protects safety net beneficiaries from unlawful state action to the same extent and for the same reasons that the clause has been held, over and over, to empower business litigants to seek overturn of state consumer protection and other laws. 

    The rule endorsed by the DOJ brief, carving safety net laws and beneficiaries out from the protection of Supremacy Clause preemption, was proposed in concurring opinions in a 2003 case, PHRMA v. Walsh, by Justices Antonin Scalia and Clarence Thomas.  But that is as far as this arbitrary doctrine has gone till now.  It has never been accepted by any other member of either the Rehnquist or the Roberts Supreme Court. 

    Hence, in 2005 the Fifth Circuit asserted “little difficulty in holding that [Medicaid beneficiaries] have an implied right of action to assert a preemption claim seeking injunctive and declaratory relief.”   Both the Fifth and DC Circuits ( in 2004) expressly held that the Scalia-Thomas line, embraced in the Acting Solicitor General’s brief,  had been “tacitly reject[ed]” by the other “seven justices,” all of whom reached the merits in PHRMA v. Walsh.  In 2006, the Eighth Circuit – like the Fifth and DC Circuits not known as a bastion of judicial liberalism – concurred that, contrary to the Scalia-Thomas-DOJ line, federal spending clause laws are no less “supreme” than federal regulatory laws:  “While Medicaid is a system of cooperative federalism, the same analysis applies [as under alleged conflicts between federal and state regulatory laws”]; once the state voluntarily accepts the conditions imposed by Congress, the Supremacy Clause obliges it to comply with federal requirements.”  The Ninth Circuit decision currently under Supreme Court challenge was authored by Judge Milan Smith, a George W. Bush appointee and brother of former Republican Senator Gordon Bush of Oregon. 

    The DOJ brief asserts that the Supreme Court has never “squarely held” that the Supremacy Clause establishes, in addition to federal jurisdiction to entertain suits, a cause of action as well.  But this is lawyers’ weasel-talk.  The Court has upheld literally scores of suits to invalidate state laws in conflict with federal laws.  The sole doctrinal basis for many, perhaps all of these decisions is Supremacy Clause-based preemption.  The readily apparent reason why the Supreme Court has never “squarely held” that such authority exists, while exercising it repeatedly, is that, to date, the justices have considered the point too self-evident to require explanation.   As stated by Justice Anthony Kennedy in a 1986 opinion, “[P]laintiffs may vindicate .  .  . pre-emption claims by seeking declaratory and equitable relief in the federal district courts through their powers under federal jurisdictional statutes.”  

    The Court’s repertoire of preemption decisions include situations materially indistinguishable from the pending case alleging unlawful state rate cuts for Medicaid providers, for example,  a unanimous 2006 decision, Arkansas Dept. of Health & Human Services v. Ahlborn, to invalidate an Arkansas statute that imposed a lien to recoup Medicaid payments from a beneficiary’s estate in violation of Medicaid statutory requirements.