Erwin Chemerinsky

  • April 28, 2010

    The new Arizona law criminalizing being undocumented and permitting private citizens to sue for lax enforcement is likely to be struck down in court, according to The New York Times.

    The Times reports:

    "The law is clearly pre-empted by federal law under Supreme Court precedents," said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

    Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona's effort to enforce its own laws is destined to fail.

    But even some experts who say they are troubled by the law said it might survive challenges.

    "My view of the constitutional question is that it is unconstitutional," said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. "But it's a far cry from predicting empirically what a judge who actually gets this case will do."


    The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants' rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, "will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant."

  • January 4, 2010

    After extensive dabate, Congress seems on the verge of passing health care legislation. But courts may offer determined opponents their last avenue of attack.

    Last week, Florida Attorney General Bill McCollum suggested that his state may challenge the constitutionality of individual health insurance mandates in court. McCollum, who is running for the Florida governor's mansion this year, announced his concerns about health care reform on the heels of an ACS Issue Brief assessing its constitutionality. 

    The Issue Brief was authored by Simon Lazarus, public policy counsel at the National Senior Citizens Law Center and a former member of President Jimmy Carter's domestic policy team. Lazarus argues that individual insurance mandates are "lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.'" Lazarus writes that arguments against the constitutionality of individual mandates "appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum."

  • December 24, 2009
    The Senate overcame a raft of attempts by conservatives to kill health care reform, passing this morning on a 60-39 vote a "landmark" health care reform bill, as dubbed by The Washington Post.

    Conservative pundits and advocates, including the Heritage Foundation and the Federalist Society loudly argued that aspects of the legislation, including the mandate for individuals without health care coverage to purchase it would prove unconstitutional. But many constitutional law experts and progressive advocates countered that Congress has the constitutional authority to pass such policy. On the eve of the vote, ACS published an Issue Brief by longtime public policy advocate and Washington, D.C. attorney Simon Lazarus refuting arguments that individual health care mandates are constitutionally suspect.

    Lazarus, the public policy counsel at the National Senior Citizens Law Center (NSCLC) and the former Associate Director of President Jimmy Carter's White House Domestic Policy Staff, maintained that the mandate "is lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.' He concluded, in part, that arguments to the contrary "have not basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case-law interpreting these provisions."

    After the vote on health care reform, in which senators rejected arguments over the constitutionality of the mandates, President Obama hailed the Senate bill as "the most important piece of social legislation since the Social Security Act," The New York Times reported.

    See Lazarus' Issue Brief, "Mandatory Health Insurance: Is it Constitutional?" here.

  • December 15, 2009
    Opponents of health care insurance reform continue to hammer away at health coverage mandates that Congress is mulling. But David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, maintains that those opponents are pushing a wobbly argument. In a column for The Huffington Post, Orentlicher, also on the faculty of the Indiana University School of Medicine, concludes that such mandates are "justified by the Constitution's grant to Congress of a taxing power and a commerce clause power."

    Orentlicher writes:

    The taxing power is a well-established basis for enacting an individual mandate. Indeed, this country has had a tax-based mandate to purchase health care insurance for nearly 45 years. The Medicare program imposes a payroll tax on Americans as a way to fund coverage of their hospital costs once they reach age 65. People cannot opt out of Medicare; it is an obligatory system of health care insurance for one's senior years. Similarly, Congress can use a payroll tax to implement a mandate for individuals to purchase health insurance before they reach age 65. Under the House bill, for example, people will pay a 2.5 percent tax on their income unless they have health care coverage.


    Under the commerce clause, Congress has the power to regulate interstate commerce, and the health care insurance industry clearly falls within the Supreme Court's understanding of interstate commerce.

    Orentlicher's entire piece is available here. For more on the debate over individual mandates, see analysis from Professors Erwin Chemerinsky and Robert A. Schapiro

    [Image via ]

  • November 9, 2009
    Guest Post

    By Helen Wong, former president of the ACS student chapter at Georgetown Law

    As the debate over health care reform continues, the question of whether an individual mandate to purchase health insurance is constitutional has been termed "the elephant in the room" by conservative pundits across the country. If so, this is definitely an elephant that has gotten significant attention. Bush administration attorneys, David Rivkin and Lee Casey, wrote not one, but two editorials in The Washington Post and The Wall Street Journal arguing that a health insurance mandate would exceed the power granted to Congress by the Constitution.

    Opponents of the health care reform point to two main arguments for why such a mandate would be unconstitutional. First, they argue that Congress lacks constitutional authority to compel people to purchase health insurance. Second, they maintain that Congress lacks the power to levy a tax against those who do not purchase health insurance or that such a tax would be considered an "arbitrary and capricious taking under the Fifth Amendment."

    But the opponents are wrong on both counts. Congress does have authority to pass a health insurance mandate under the Commerce Clause enumerated under Article 1, Section 8, of the Constitution. Since the 1930s, the Supreme Court has interpreted the Commerce Clause to mean that Congress has the authority to regulate activities that have a substantial effect on interstate commerce. "Substantial effect" can be found on individual decisions that, in the aggregate, would affect interstate commerce. In Wickard v. Filburn, Filburn had violated wheat production quotas because he was growing extra wheat for personal consumption. The Court found that his actions, though minimal, would affect interstate commerce because it would reduce the amount of wheat he would need to purchase on the open market. More recently in Gonzales v. Raich, the Supreme Court found that "Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce."