Commerce clause

by Jeremy Leaming

Turning aside a Religious Right group’s challenge to the Obama administration’s signature law, a “conservative-leaning” federal appeals court today upheld the constitutionality of an integral provision of the health care reform law.

In a 103-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit supported a lower district court’s opinion that found constitutional the law’s minimum coverage provision, which requires individuals, starting in 2014, to maintain health care coverage, or pay a penalty, called a “shared responsibility payment.” Specifically the district court held that the minimum coverage provision was a legitimate regulation of economic activity pursuant to the Commerce Clause and the Necessary and Proper Clause.

ACS Board Chair Geoffrey R. Stone lauded today’s opinion, saying it represented yet another rejection of opponents’ cramped vision of the Constitution:

“If those who challenge the constitutionality of the Affordable Care Act had their way, our federal government would be unable to tackle serious national problems,” Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, said. “It is particularly noteworthy that today's opinion was written by Judge Laurence H. Silberman, one of the most respected conservative jurists in the nation. Judge Silberman, who was appointed to the bench by President Ronald Reagan and was awarded the national Medal of Freedom by President George W. Bush, flatly rejected the constitutional challenge, explaining that 'the right to be free from federal regulation . . . yields to the imperative that Congress be free to forge national solutions to national problems.'"

Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, told ACSblog, “There is no judge more respected in conservative legal and political circles than Laurence Silberman, and it is hard to imagine anything that could take more of the wind from the sails of ACA opponents than this terse, unequivocal ruling that their case against the ACA individual mandate has no ‘real support in either the text of the Constitution or Supreme Court precedent.’”

Lazarus continued, “Especially coming in the wake of the Sixth Circuit Jeffrey Sutton’s similarly sweeping rejection of the opponents’ case, and in particular, coming virtually on the eve of the Supreme Court’s November 10 conference on whether to accept review of the pending ACA cases, the Court’s conservative bloc is facing strong recommendations to handle this case as judicial conservatives, not libertarian radicals or political activists.”

Lazarus is author of two ACS Issue Briefs, one on the constitutionality of ACA’s minimum coverage provision, and the other addressing opponents’ arguments against the scope of the federal government’s power to regulate commerce.

by Nicole Flatow

In response to escalating political rhetoric by some conservatives about the U.S. Constitution, some of the country’s most esteemed scholars are “setting the record straight” during Constitution Week.

Yesterday, ACS released an Issue Brief by constitutional law professors Geoffrey Stone and Bill Marshall, rejecting the “conservative constitutional narrative” as “deeply unprincipled and patently wrong.”

And tomorrow, ACS will kick off a series of short and accessible webcasts about constitutional understanding and interpretation featuring Stone, Marshall and a number of other preeminent scholars. Each 30-minute session will mirror a chapter in the book first published by ACS, Keeping Faith with the Constitution, by Pamela Karlan, Goodwin Liu and Christopher H. Schroeder.

Karlan, a constitutional law professor at Stanford University and co-director of the law school’s Supreme Court Litigation Clinic, will lead the first discussion tomorrow, on the Constitution’s structure, history, and the fundamental values it contains. Other webcasts in the nine-part series will focus on equality, democracy, criminal justice and liberty.

Both lawyers/law students and non-lawyers are encouraged to participate and interact with questions, tweets and Facebook comments. Prof. Karlan will speak for the first 15 minutes, and take questions for the second 15 minutes. If you are on Twitter, please join ACS both during and after tomorrow’s session at the hashtag #ACSclass.

The first webcast is tomorrow at 3 p.m. eastern time. To see the full schedule and accompanying readings, visit the web page for “What the Constitution Means and How to Interpret It.” And read the ACS Issue Brief, The Framers’ Constitution: Toward a Theory of Principled Constitutionalism, here.