Simon Lazarus

  • July 18, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on the Constitutional Accountability Center's Text & History Blog.

    Republicans in the U.S. House of Representatives – undaunted despite having come up short for six years with ceaseless efforts to kill or maim the Affordable Care Act – struck again, on Thursday, July 7, and Friday, July 8, with back-to-back hearings in two separate committees. As touted in the headline of their joint press release, the two committees – Ways & Means and Energy & Commerce – sought to “Highlight Obama Admin’s Unprecedented Obstruction to Withhold Facts On Billions In Illegal Obamacare Payments.” 

    The purported occasion for the redundant hearings was the release of a 158 page “investigative report” amplifying House Republicans’ claim that the Administration has funded the ACA “Cost-Sharing Reduction” program without a “constitutionally required appropriation from Congress.”  The cost-sharing reduction (CSR) program currently helps 6.4 million lower income individuals to afford deductibles, co-pays, and co-insurance prerequisites for purchasing health care services and products. Many of these individuals could not afford health care, and therefore might forego buying buy health insurance without it, antithetical to the outcome the ACA was designed to produce.

    The CSR subsidies work in tandem with the ACA tax credit program subsidizing insurance premiums, which the Supreme Court held applicable nationwide one year ago in King v. Burwell, rejecting a high-profile lawsuit by anti-ACA activists. If successful, that lawsuit would have barred the premium assistance tax credits in the 30+ states with exchange marketplaces managed by the federal government, rather than by the state on its own.  

    Much like that failed legal challenge, the committees’ attack on the complementary CSR program, itself the subject of an unprecedented lawsuit by the House Republican majority now pending in the D.C. Circuit Court of Appeals, promotes two persistent partisan objectives: to render the ACA dysfunctional, and to reiterate Republicans’ chestnut that President Obama constantly breaches his legal authority, violating his constitutional obligation to “take care that the laws be faithfully executed.” 

  • May 16, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center. Simon Lazarus helped draft an amici curiae brief in House of Representatives v. Burwell, filed by CAC on behalf of House Minority Leader Nancy Pelosi and other members of the Democratic Caucus, in support of the Administration.

    On Thursday afternoon, May 12, District of Columbia District Judge Rosemary Collyer ruled unconstitutional the Obama administration’s funding of “cost-sharing reduction” subsidies (CSRs) prescribed by Section 1402 of the Affordable Care Act (ACA), to complement the “premium assistance tax credits” prescribed by Section 1401, by assisting lower-income exchange subscribers to pay for medical services and products. According to an Avelere health study, at least 65 percent of all Obama enrollees are eligible for the subsidies, and 5.9 million people currently use them. The decision upheld a lawsuit filed in November 2014 by the House of Representatives, alleging that Congress had not enacted an appropriation covering the COS subsidies, and hence, the administration’s funding of them violated the constitutional command that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

    When then-Speaker John Boehner first proposed the lawsuit in July 2014, a broad consensus of experts warned, in the words of former House legal counsel (for Congresses controlled by both parties) Charles Tiefer, that “it is a bad idea for a Speaker to file such an embarrassing loser.” Nonpartisan experts like Tiefer knew, as he wrote in testimony submitted to the House Rules Committee considering Boehner’s resolution to file the case, that applicable Supreme Court precedents dictated “no standing . . . for anything remotely like” the House’s lawsuit.

    No good would be served here by restating the precedents that Judge Collyer chose to disregard or, as she put it, distinguish and limit. Briefs filed by the Department of Justice and allied amici have done that job, and will surely repeat when the case is appealed to the D.C. Circuit. But it is worth briefly spelling out the real-world consequences of Judge Collyer’s arguments purporting to distinguish pertinent standing doctrine, in light of the separation of powers policy considerations undergirding established congressional standing limitations.

    In sum, given the political dynamics of inter- and, especially with respect to Congress, intra-branch behavior patterns and incentives, displacing those precedents in accord with Judge Collyer’s decision will provide irresistible incentives – for one house of Congress or, more realistically, internal factions with political leverage – to trigger lawsuits over a virtually limitless array of inter-branch or partisan disputes previously resolved through political processes, formal and informal.

  • May 29, 2014
    Guest Post

    By Simon Lazarus, Senior Counsel at Constitutional Accountability Centerfrequent contributor to ACSblog, participant in ACS programs, and author of two ACS Issue Briefs on the legal challenges to the Affordable Care Act. Those Issue Briefs are available here and here.

    *This piece is cross-posted on Constitutional Accountability Center's blog

    Media battalions daily eye-ball every spike and dip in the Affordable Care Act’s implementation odyssey. On May 14, however, nearly to a person, they passed up a noteworthy event: a Fourth Circuit Court of Appeals hearing in Richmond, Virginia, involving one of a phalanx of Koch-backed lawsuits, that could, if successful, in the exuberant vernacular of columnist George Will, “blow [the ACA] to smithereens.” Much has been written about these cases, by ourselves and others, since conservative uber-litigator Michael Carvin filed in the District Court for the District of Columbia a complaint identical to the (subsequent) one at issue in the recent Fourth Circuit appeal. (Two other similar challenges are percolating in Federal district (trial) courts in Oklahoma and Indiana.) But, unnoticed by the press, in this recent hearing, high-voltage verbal duels broke new ground.

    Visibly animated, two of the three judges on the Fourth Circuit panel not only skewered the legal basis for the lawsuit—as had the two federal trial judges who earlier this year dismissed the claim (in the case now before the Fourth Circuit appeals court and the earlier-filed D.C. case). They questioned, as a matter of political and social injustice, Carvin and his backers’ desperation attempt to upend the ACA. In particular, Judge Andre Davis fired off one of the most telling sound-bites yet articulated by the law’s defenders over the course of this litigation. “You are asking us,” Judge Davis capped off an especially testy exchange near the end of the session, “to kick millions of Americans off health insurance, just to save four people [Carvin’s four individual plaintiffs] a few dollars.”  Davis had earlier foreshadowed that zinger, interrupting Carvin soon after he launched his argument, to chide him for bringing his case on behalf of four lone individuals instead of as a class action on behalf of all similarly reluctant premium assistance beneficiaries; the judge suggested that in fact Carvin could never assemble such a broad class: “No one wants what you want,” he scolded.

  • February 15, 2013

    by Jeremy Leaming

    Alabama officials will take to the U.S. Supreme Court on Feb. 27 to try to gut the Voting Rights Act’s integral enforcement provision, Section 5. And their argument, what the Constitutional Accountability Center’s Simon Lazarus calls the “goofy gripe,” rests largely on the claims that racial discrimination in voting happens everywhere and so why pick on certain states.

    Lazarus notes, however, that just last year the Voting Rights prime enforcement provision was employed by the Justice Department to scuttle “vote suppression techniques familiar to all who followed the 2012 campaign: stringent voter ID laws, curtailed early voting opportunities, and discriminatorily rigged redistricting plans.”

    But the Alabama officials’ arguments are more than goofy, they’re ludicrous. There’s a reason why Section 5 remains relevant, because tawdry, bigoted attempts to deny minorities the right to vote remain the most intense in specific states and localities.

    First let’s start with some basics. The Constitution’s Fourteenth and Fifteenth Amendments bar the states from depriving citizens of liberty and from denying the right to vote to minorities. Moreover, both amendments include sections granting Congress, not the courts, the power to craft appropriate legislation to enforce the promise of both Amendments.

    When Congress enacted the Voting Rights Act it determined that some states and localities, mostly in the South, had much deeper and more intense histories of oppressing African Americans, including keeping them away from the polls. So Congress included a rather strong enforcement mechanism, Section 5, which would require those covered jurisdictions to obtain “preclearance” for any changes to their voting procedures from the Department of Justice or a federal court in Washington, D.C. In 2006 Congress in bipartisan fashion overwhelmingly reauthorized Section 5 for another 25 years, after amassing a voluminous record showing that the covered jurisdictions by far remained the most fertile ground for racial discrimination in voting. The evidence was that although progress had been made in the South, there remained a stubborn bigotry resulting in ongoing efforts to suppress the minority vote.

    During an ACS panel discussion this week on the case challenging Section 5, Shelby County v. Holder, several panelists noted stories from Texas, Alabama and other covered jurisdictions of “serial” efforts to suppress or dilute the vote of minorities. For example in 2008 Alabama officials, as NAACP LDF’s Ryan P. Haygood recounted, sought to implement a discriminatory redistricting plan to drastically reduce the sole majority black district in the state by creating hundreds of annexations, without obtaining preclearance. When the Justice Department did review the redistricting plan, it was rejected as discriminatory. Nonetheless the officials held the election with the discriminatory redistricting scheme and the DOJ lodged a Section 5 enforcement action undoing the election and requiring another election to be held. (LDF is representing voters in Alabama in the Shelby County case; for more on Section 5 and Shelby County see ACS’s Voting Rights Resources page.) Video of panel discussion is below or here.


  • February 11, 2013

    by Jeremy Leaming

    Despite attorneys in the Department of Justice’s Office of Legal Counsel who appear to have produced a lengthy justification for targeted killings that skewers the English language to wend its around constitutional principles such as due process before the government can deprive a person of liberty, President Obama has nonetheless taken solid action to counter the right’s take on the Constitution as a document that limits government’s ability to take collective action to protect and advance the nation’s welfare.

    In a piece for The New Republic, Simon Lazarus, senior counsel to the Constitutional Accountability Center, says it’s about time – likely long overdue -- that progressives provide a compelling alternative to the right’s simplistic, but effective rhetoric of a Constitution that is all about individual rights and a weak central government.

    Quickly after the president provided some staunchly liberal rhetoric in his Second Inaugural address, Republican lawmakers, such as Sens. Mitch McConnell (R-K.Y.) and Chuck Grassley (R-Iowa) brayed that the president was ushering in or attempting to an age of radical liberalism. Grassley, as noted here, also groused that the president had turned the Second Amendment on its head by arguing that new measures aimed at curbing gun violence were no threat to the individual right to bear arms.

    The president’s rhetoric on the Constitution, Lazarus writes, “echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to ‘enforce’ that responsibility.”