Erwin Chemerinsky

  • June 25, 2015

    by Jeremy Leaming

    Following today’s Supreme Court opinion in King v. Burwell, ACS President Caroline Fredrickson moderated a briefing about the outcome in the healthcare case featuring Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, and Elizabeth G. Taylor, executive director of the National Health Law Program.

    Chief Justice John Roberts writing for the 6-3 majority concluded in part that the intent of Congress mattered a lot and that the Affordable Care Act did not include a provision to destroy the law’s aim to expand health care coverage. “Congress passed the Affordable Care Act to improve health insurance markets, not destroy them,” Roberts wrote for the majority, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

    In the call Chemerinsky noted that while the chief justice’s opinion relied on some of the plain language of the ACA, the majority also relied on context and the intent of Congress.  Beyond noting Justice Antonin Scalia’s “sarcastic” dissent in King v. Burwell, Chemerinsky said Scalia failed to advance his long-held view that only the plain language of the law should rule the day.

    “It is Justice Scalia who has been so outspoken in saying, ‘We only look at plain language, we don’t look at things like legislative history.’ But a majority of the Court has never taken that position,” Chemerinsky said. “Just because Justice Scalia says it loudly and often still does not make it a majority approach from the Supreme Court.”

    Overall the high court interprets statutes in context. Rarely has the court interpreted statutes on text alone, Chemerinsky said.

    Taylor agreed, saying that the scheme of the health care reform law was to provide health insurance across the board.

    “I think this is a great day, it’s a relief to have this challenge over with,” Taylor said.

    Taylor, however, added that more work lies ahead to expand healthcare coverage, noting that many states have not expanded Medicaid under the ACA, leaving millions without the ability to receive quality healthcare coverage. 

    Chemerinsky also lauded Roberts and Kennedy for rising above the partisanship that has surrounded the Affordable Care Act since its consideration in Congress and after its enactment in 2010. Chemerinsky, author of The Case Against The Supreme Court, was pleased the chief justice and Kennedy were able today to transcend the partisanship and uphold a law intended to better the lives of millions of Americans.

    Though Chemerinsky cautioned against reading too much into Roberts’ votes to uphold the Affordable Care Act against two major challenges.

    Instead, Chemerinsky said there is something else underlying the chief justice’s work, which could help explain his votes in the cases challenging major provisions of the ACA.

    “I think Chief Justice John Roberts’ inclinations are much more pro-business than pro-states’ rights,” Chemerinsky said. “Both decisions benefit business, the insurance business. I just think he’s less inclined to accept the states’ rights arguments than other conservatives.”

    Audio of the call is available here.

  • June 19, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    I do not like the idea of confederate flags on license plates issued by the State of Texas, but I found the Court’s reasoning very troubling in allowing the Texas Department of Motor Vehicles to prohibit this. In Walker v. Texas Division, Sons of Confederate Veterans, the Court in a 5-4 decision, held that the Texas Department of Motor Vehicles did not violate the First Amendment in refusing to issue a license plate with the confederate battle flag.

    Texas, like all states, requires license plates on cars. In Texas, people can have either the general type of plates issued by the state or they may have specialty plates. One type of specialty plates are those where a non-profit organization asks the Texas Department of Motor Vehicles Board to approve a design and then issue plates with it. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a confederate battle flag, but the Board rejected the proposal.

    The Supreme Court held that the Board did not violate the First Amendment because license plates are government speech and when the government is the speaker it cannot violate the speech clause of the First Amendment. Justice Breyer, writing for the majority said, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The Court explained, “Were the Free Speech Clause interpreted otherwise, government would not work.” The government must be able to express messages such as to encourage recycling or energy conservation or vaccination of children.

    The Court said that the license plate is government speech and therefore the choice of the Board to not allow the confederate flag does not violate the First Amendment. The Court stressed that license plates have long communicated messages from the state and that license plate designs are perceived by the public as coming from the state. The Court said that Texas license plates are essentially government IDs. The Court stressed that Texas retains control over the content of its license plates. The Court said that Texas was not creating a forum for private speech, where the First Amendment would apply, but it was Texas speaking itself.

    It is easy to like the result in this case because confederate battle flags convey a message of racism that is inherently hurtful and divisive.   Indeed, it may be for exactly this reason that Justice Clarence Thomas was the fifth vote in the majority – joining Justices Breyer, Ginsburg, Sotomayor and Kagan – in an alignment that is rare on the Court.  In Virginia v. Black (2003), Justice Thomas was the sole dissenter arguing that the government should be able to ban cross burning because of its vile history and hateful message.

  • April 29, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Nothing in the almost two and a half hours of oral arguments altered my prediction that at the end of June 2015 the Supreme Court will hold that state laws prohibiting same-sex marriage deny equal protection to gays and lesbians. The only question is whether it will be 5-4 or 6-3 to declare unconstitutional laws prohibiting marriage equality and whether the opinion will be written by Chief Justice John Roberts or Justice Anthony Kennedy.

    Why the certainty of this prediction? To begin with, the states that are defending their bans on same-sex marriage – Kentucky, Michigan, Ohio, and Tennessee –failed to articulate any legitimate justification for their laws. In reality, the laws prohibiting same-sex marriage stem from a moral condemnation of homosexuality, but the Supreme Court has been explicit that it will not accept such a justification for laws discriminating against gays and lesbians.

    So the states are trying to defend their laws by stressing tradition and the historic definition of marriage as being between a man and a woman. But a tradition of discrimination is not an acceptable reason in the courts for continuing to discriminate. In 1967, in Loving v. Virginia, the Supreme Court declared unconstitutional a state law that prohibited interracial marriage. Such laws had existed throughout American history, even in California until the 1940s. But the Court rightly gave no deference to this tradition and rejected the argument that the definition of marriage should be left to the political process.

    The primary argument made by the states is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, declares in its brief:   “Separating marriage from procreation dramatically changes the state’s interest in the institution. . . .  It is the state’s interest to encourage opposite-sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”

  • February 27, 2015

    by Jeremy Leaming

    Yes, King v. Burwell is fundamentally a case dealing with a statutory matter, not a lofty constitutional claim, but at the end of the day one must not forget that this statutory-based case, if handled improperly by the Supreme Court, will harm millions of Americans, making economic inequalities worse in this country and sending the nation’s health care system into chaos. That’s according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars, who along with Yale Law School Professor Abbe Gluck were featured in a February 26 ACS briefing on King, which the Supreme Court will hear oral argument in on March 4.

    “I think it’s important for us to focus on who is going to suffer from a result of this [a ruling by the Supreme Court that would buy the Obamacare challengers’ argument],” Chemerinsky said toward the end of the discussion. “There are millions of individuals who will no longer have health insurance because they won’t be able to afford it without” the tax credits. Such an outcome would bring down the Affordable Care Act, leaving millions without health care coverage and millions more with higher costs to keep it, he said.

    Gluck noted the highly politicized nature of King, but focused on the statutory challenge and the role of the Supreme Court.

    “The case at bottom is about how the Supreme Court is going to do textual interpretation of four words in a two-thousand page law that is very complex. The challengers want the Court to look at these four words – the words are ‘established by the state,’ … in a vacuum, and the government is saying just as the court has done time and time again … that you have to look at statutory language in context and against the backdrop of all of the other legal principles, including federalism and agency deference that the Court has traditionally used to interpret statutes.”

    Gluck said there is a lot of extra textual narrative and history being invoked in the case, but not by the government. “There is a whole blogosphere set of activity, that is aimed to construct a narrative to convince the Court that what the challengers are arguing is true – that it is actually possible that Congress could have written a statute into which it sowed the seeds of its own destruction,” Gluck continued.

    Without that narrative, Gluck said, “it is impossible to think that any court would buy that story because it is so destructive to the statute as a whole and it is implausible to think Congress would have ever intended it.”

    Listen to the entire discussion here. For more on King v. Burwell, see Chemerinsky’s recent ABA Journal piece and Gluck’s Feb. 27 article for Politico Magazine.

  • November 21, 2014
    Guest Post

    by Erwin Chemerinsky and Samuel Kleiner. Chemerinsky is Dean of the University of California, Irvine School of Law; Kleiner is a fellow at the Yale Law Information Society Project.

    In the face of an ongoing humanitarian crisis as families are broken up by deportations, President Obama’s bold executive action is legally permissible and morally necessary. The angry Republican rhetoric is misguided both as a matter of constitutional law and as a matter of desirable social policy.

    In terms of the Constitution, President Obama drew a careful distinction based on what he can and can't do without congressional action. The President cannot bestow citizenship on individuals except as authorized by law. President Obama’s executive order does not attempt to do this. 

    But what a president may do is set enforcement priorities, choosing who to prosecute or who to deport. No government brings prosecutions against all who violate the law. Resources make that impossible and there are laws on the books that should not be enforced. Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States.   For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to focus deportations along certain criteria.

    In fact, as recently as two years ago, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the President to choose whether or not to bring deportation proceedings. On numerous other occasions, the Supreme Court and lower federal courts have recognized prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.

    The overblown Republican rhetoric fails to recognize that what President Obama announced was enforcement priorities. He has instructed the executive branch, which is under his control, to prioritize deportation proceedings against felons and those who pose a public danger, but not to deport parents of young children who are United States citizens and who present no threat.   Such discretion is clearly and unquestionably part of the president’s power.     

    Nor is there any realistic chance that any court will find otherwise. No one is likely to have standing to challenge President Obama’s policy. And even if a court were to address the issue, the law is well established that presidents have discretion to decide whether to prosecute or bring deportation actions. Contrary to the Republican rhetoric, President Obama is violating no law and is acting within his constitutional authority.