Erin Ryan’s analysis of potential constitutional challenges to environmental laws in the wake of the NFIB v. Sebelius decision makes a strong case that even under the Supreme Court’s new Spending Clause jurisprudence, these laws are constitutionally sound. (I came to a similar conclusion last year when I asked whether Sebelius casts constitutional doubt on Title IX.) Ryan’s analysis also makes clear, however, that the fundamental incoherence of the Supreme Court’s coercion analysis in Sebelius means that it is difficult to predict how it will be applied going forward. While the Court claimed to reason from contract law in finding the terms of the Medicaid expansion so coercive as to render a state’s implementation of the expansion involuntary, it is difficult to imagine the Court finding such a bargain coercive in other contexts. Consider, for example, another Medicaid case, Harris v. McRae.
In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment initially passed in 1976, federal Medicaid funds cannot pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her constitutionally-protected right to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.”
In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices, according to the Court, because in the end it was her poverty that constrained her choices, rather than any barriers the federal government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held.
ACS asked me to write a piece on Guantanamo for the twelfth anniversary of the attacks on the Twin Towers and the Pentagon on September 11, 2001. I am the founder and director of the Witness to Guantanamo project. The project films interviews with former detainees and others who lived or worked in Guantanamo Bay, Cuba.
However, as I try to write about the men still held in Guantanamo after nearly 12 years, President Obama’s threat to bomb Syria for its alleged use of chemical weapons continues to tug at my thoughts. There is an intersection between America’s threatening events in Syria and our treatment of the men in Guantanamo. In both scenarios, the rule of law is ignored and abandoned.
Of the 164 men still imprisoned in the detention center, 84 have never been charged with a crime and are cleared for release. Yet, Obama has done nothing to release them except to express the belief that Guantanamo should be closed. He signed an executive order that the prison be shuttered on his second day of office, more than four years ago. The prison is still open.
It was an encouraging development for the rule of law when President Obama decided to ask Congress for legislative authorization to take military action in Syria. When Obama took office in 2009, it was reasonable to expect that his administration would move away from the Bush-Cheney-Yoo unitary executive model, which was essentially an argument for unchecked presidential power. However, while the Obama administration has certainly not embraced the outlandish unitary executive theory, it has, at times, found ways to skirt limits on presidential power. The most prominent examples are probably the targeted killing, without judicial hearing, of U.S. citizens believed to be terrorist leaders and the administration’s decision to order military action in Libya in 2011. As I have argued elsewhere, in each case, executive branch lawyers in the Obama administration found ways to justify unilateral presidential action unchecked by the other branches of government.
Obama’s decision to involve Congress in the debate over the use of military force in Syria suggests a meaningful acknowledgment that presidential power is accountable to checks and balances. As I have written for the Los Angeles Times, Obama’s decision to seek congressional approval was required by the Constitution since the United States has not been attacked by Syria. However, it was far from clear that Obama would turn to Congress. Advocates of presidential power point out that past practice -- including Obama’s own action in Libya -- supports the conclusion that presidents can more broadly use military force when it is in the national interest, and not only when the U.S. is attacked. The fact that Obama did not act on his own is a positive sign and may help prevent future presidents from unilaterally using military force (picture a hypothetical President Ted Cruz deciding the national interest justified an attack against Canada).
There is reason to contain one’s optimism, though, when it comes to setting new limits on the use of presidential power. Obama has stated that he reserves the right to use military force even if Congress declines to pass authorizing legislation. That is disconcerting, and simply does not make a great deal of sense. What is the point of Congress making a decision if it is merely an advisory opinion? If Congress decides not to authorize the use of military force in Libya, Obama should respect that decision and should not act on his own. Unilateral action under these circumstances would be a dangerous decision for the Constitution, and could also be a bad political move. Some Republican members of Congress have made clear that they are eager to find a reason, any reason, to impeach President Obama and remove him from office. To date, there is no legitimate reason to support such an idea. However, if Obama ordered military action in defiance of Congress, that could provide his political opponents with a legitimate argument for impeachment.
A United States intelligence employee sends classified government documents to the news media and ignites a national debate. Some hail him as a hero and whistleblower, others denounce him as a traitor. You might think we are talking about Edward Snowden, the National Security Agency contractor who disclosed details of PRISM, the NSA’s massive surveillance program in June. But we are also talking about Daniel Ellsberg, the Department of Defense consultant who provided the Pentagon Papers to The New York Times 40 years ago to reveal the truth, which help end the Vietnam War.
Edward Snowden’s revelations about the Foreign Intelligence Surveillance Court’s (FISC) secret rulings have heightened scrutiny on the court and the work it does. The court, which meets in the same building as the U.S. Court of Appeals for the D.C. Circuit, is unique among federal courts in that its judges are not appointed by the president and then confirmed by the Senate. Instead, the court is made up exclusively of sitting judges who are appointed by the Chief Justice of the United States for seven-year terms with no legislative or executive oversight. Professor Theodore Ruger at the University of Pennsylvania said that the way the court is set up, the Chief has unchecked authority to appoint people to the court who share his views.