March 2012

  • March 30, 2012

    by Jeremy Leaming

    Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

    Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

    But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

    Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

    “Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

    Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

    But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

    “If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

  • March 30, 2012
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.

    At one point in our history, about a hundred years ago, the Supreme Court measured congressional authority and its limits based on formal categories.  For example, the Court said that Congress had authority to regulate “commerce,” but not “manufacturing.”  It said that Congress had authority to regulate matters with a “direct” effect on commerce, but not those that had an “indirect” effect.  And it ruled that Congress could regulate matters of “national” concern, but not those of “local” concern.
     
    These formal categories had no support in the text, history, practice, or precedent of the Constitution.  Yet an activist Court created and used them to flex its muscle to sharply curtail congressional authority based only on its own ideological views about government power and state sovereignty.  This cramped, formalistic, and ideologically-driven jurisprudence predictably failed, and we happily put it to rest in 1937. 
     
    But the ACA litigation now threatens to resurrect it.
     
    The states’ case against the minimum coverage provision depends on a formalistic approach that takes us right back to the rejected jurisprudence of the early twentieth century.  For example, the states argued that the minimum coverage provision exceeds congressional authority because it is a “requirement,” not a “regulation.”  They said that provision goes beyond congressional Commerce Clause authority because it regulates “inactivity,” not economic “activity.”  And they argued that it exceeds the commerce authority because it regulates before an individual enters the market, not “at the point of” market entry.  Justice Kagan highlighted this problem in Tuesday’s argument, but the states’ claims seemed to gain at least some traction with as many as five of the Justices, presaging a potential move back to the discredited jurisprudence of the past.
     
  • March 30, 2012

    The Senate this week confirmed two district court nominees to fill emergency vacancies: Miranda Du to the District of Nevada, and Susie Morgan to the Eastern District of Louisiana. These two nominees are part of the 14 whom Senate leaders agreed to vote on as part of their deal last month. As Judiciary Committee Chairman Patrick Leahy (D-Vt.) notes, “Both nominations have the bipartisan support of their home state Senators, and were reported by the Judiciary Committee over four months ago. The Senate is still only considering judicial nominations that could and should have been confirmed last year. The judicial vacancy rate remains nearly twice what it was at this point in the first term of President George W. Bush.”

    In addition, the Senate Judiciary Committee approved three judicial nominees, including one circuit and two district court nominees, and held over the nominations of another circuit and four additional district court nominees.

    The committee also held a hearing on three district court nominees. Sen. Mike Lee (R-Utah) signaled his support for home-state nominee Robert Shelby, even though he has voted against every judicial and executive nominee so far this year in retaliation against President Obama’s recess appointments.

    Furthering the obstruction of judicial nominees, Sen. Mitch McConnell (R-Ky.) objected to the request to consider Donna Mary Murphy to be an Associate Judge for the Superior Court of the District of Columbia. The president nominates many D.C. judges because the District of Columbia is not a state.

  • March 30, 2012
    Guest Post

    By John Knight, Senior Staff Attorney, ACLU LGBT & AIDS Project


    Earlier this week, we got the good news – the six-year battle was over. Wisconsin’s anti-transgender Inmate Sex Change Prevention Act was a thing of the past. The act was a one-of-a kind law banning prison medical care for a medical condition that is unique to transgender persons. The law prevented prison doctors from ever prescribing transition-related medical treatment, including hormone therapy and sex reassignment surgery, to transgender prisoners.  In May 2010, a federal district court struck the law down as unconstitutional and in August 2011, the U.S. Court of Appeals for the 7th Circuit affirmed. The third and final act of this legal drama was the U.S. Supreme Court’s denial of certiorari this week.  

    I had the privilege of participating in the entire six-year struggle, from the time we filed our complaint in January 2006, through trial in November 2007, and oral argument on appeal in February 2011. The highlights for me were the courage and determination of our clients, who were willing to undertake the burden of speaking out about this terrible law, and the talents of the experts who informed the court about what it means to be transgender and the crucial importance of transition-related medical care. Six years of interviews with our clients and other transgender inmates in Wisconsin confirmed what I already suspected about how challenging it can be to grow up as transgender in a world with so little understanding of transgender people and so much distrust of persons they don’t understand.

    But the ultimate success of this case, jointly litigated with attorneys from the ACLU of Wisconsin and Lambda Legal, illustrates the power of knowledge to win out over even the most entrenched biases regarding transgender people. Before this law was passed, the Wisconsin Department of Corrections had deferred to the medical knowledge of their medical staff regarding the treatment needs of transgender persons. But when the Wisconsin legislature ignored the advice they got from DOC’s medical and mental health directors and instead denigrated the treatment as “bizarre taxpayer-funded sex change procedures” and “prison extreme makeovers,” the law easily passed. Expert testimony led to early relief to keep our clients from being cut off of their hormone therapy treatment and ultimately persuaded the district judge that the law could no longer be enforced.

  • March 30, 2012

    by John Schachter

    Who would have thought a 220-year-old law would be relevant in the health care reform debate that dominated the Supreme Court this week? Yet there it is – the Militia Act of 1792 – standing firmly as an answer to an oft-asked question in this debate. Is there an example of anything that Congress has mandated that people buy?

    Let’s put aside for the moment that the requirement that we pay our taxes “mandates” that we all “buy” Social Security and Medicare, highways, medical and scientific research, tanks and weapons, and anything else the government pays for through its revenues. How about the narrower question of Congress specifically mandating that citizens actually purchase a good or service?

    When ACS President Caroline Fredrickson appeared on Fox News’ “The O’Reilly Factor” on March 27, the show’s eponymous host appeared genuinely miffed when Caroline mentioned the Militia Act. “What act was that?” he asked. O’Reilly had insisted on hearing an example of Congress requiring citizens to purchase something – or as he so politely put it, “[Name] one thing that the federal government compels you to buy, one thing. One thing.”

    And when given the oldest and most relevant answer, he balked. It’s pretty clear he didn’t expect there to be an answer. While it’s often difficult to divine what our Founders may have intended with various constitutional prerogatives, in this case we have actual hard evidence.

    The following day (presumably after firing the intern who failed to brief him properly), O’Reilly had to justify his erroneous skepticism. Easy for him – he changed the question.