Walter Dellinger

  • July 22, 2011

    by Nicole Flatow

    A constitutional amendment to balance the nation’s budget is set to be considered by the House of Representatives next week, and its chances for passage appear low. “But the fact that so many House members support the amendment is alarming," writes former Acting Solicitor General Walter Dellinger in The New York Times. "[I]f it were to become law, it would do grave harm to our constitutional system, because the process for enforcing it would be uncertain and perilous."

    Dellinger, a partner at O’Melveny & Myers and a member of the American Constitution Society’s Board of Advisors, explains in an op-ed that an amendment mandating that “[t]otal outlays for any fiscal year shall not exceed total receipts for that fiscal year” places an “empty promise” in our Constitution and could have a “very corrosive effect.”  

    Because of the many implementation and enforcement questions raised by a balanced budget amendment, the entire budget process is likely to end up in court, Dellinger suggests, particularly given that new versions of the amendment “clearly contemplate judicial involvement and even provide that members of Congress can bring lawsuits to enforce the limits.”

    “Allowing federal judges to make fundamental decisions about spending whenever outlays threatened to exceed receipts would be an extraordinary expansion of judicial authority,” Dellinger writes.

    Even conservative constitutional scholar Robert H. Bork has warned that such an amendment would result in “hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results.”

    On the other hand, if courts declined to get involved in the budget process, "it would render the amendment unenforceable," Dellinger notes.

    It would be wonderful if we could declare that from this day forward the air would be clean, our children well educated and the budget forever in balance. But merely putting such things in the Constitution — as some foreign governments have done — would not make them happen.

  • July 8, 2011

    by Jeremy Leaming

    First it was broccoli, now it's Weight Watchers.

    The right-wing blogosphere is gushing over George Will’s latest attempt to paint the minimum coverage provision of the Affordable Care Act (ACA), as a wild overreach by the Obama administration. If the government can force individuals to carry health care insurance, surely it can enact a law requiring us to eat healthy or force obese Americans to join Weight Watchers.

    During a recent discussion, “Battle for the Constitution,” on ABCNews’s “This Week,” Will claimed that obesity impacts interstate commerce, and therefore does it not follow that Congress has the constitutional power to require overweight people to join Weight Watchers. Time’s Richard Stengel said he did not know, and Georgetown University professor Eric Dyson said the question is open.

    Their responses didn’t satisfy Will, who kept demanding to know whether Congress can force heavy Americans into Weight Watchers. But Will’s spin on the broccoli law argument did excite the right-wing blogosphere. (Breitbart.TV, “George Will Brilliantly Traps Liberal Panelists With Obamacare Constitutional Challenge.”) Will’s spin is not that new by the way – he has been asking the Weight-Watchers question for some time. See his columns here and here.

    But there are plenty of constitutional law experts who have had no problem quickly trashing outlandish slippery slope arguments, such as Will’s. (Will may fancy himself a constitutional law expert, but he is not. A decent pundit, he may be.)

    Earlier this year before a Senate Judiciary Committee hearing on the “Constitutionality of the Affordable Care Act,” Charles Fried, a Harvard law school professor and former solicitor general under President Reagan and Walter Dellinger, partner at O’Melveny & Meyers and former acting solicitor general under President Clinton, both testified that liberty interests protected pursuant to the Constitution would prohibit the government from mandating that people engage in behavior like purchasing gym memberships or more broccoli, or joining Weight Watchers.

    In his written testimony before the Committee, Dellinger states:

    The minimum coverage provision of the Affordable Care Act tests no limits and approaches no slippery slope. Notwithstanding the improbable hypothetical put forth by those bringing these lawsuits, Congress never has and never would require Americans to exercise or eat certain foods. Were Congress to consider laws of that kind infringing on personal autonomy, the judiciary would have ample tools under the liberty clause of the Fifth Amendment to identify and enforce constitutional limits. What the Affordable Care regulates is not personal autonomy, but commercial transactions.

    Suggestions that sustaining the minimum coverage provision would mean that Congress could mandate the purchase of cars or comparable items are also disingenuous. The provision requiring minimum health insurance cannot be viewed in isolation. It is an integral part of regulating a health care market in which virtually everyone participates. No one can be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one’s ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.

    Dellinger also took a shot at slippery slope arguments, noting they too are often “slippery.”

    “Where the issue is simply whether something falls within the scope of a subject matter over which Congress is given jurisdiction to legislate, the parade of horribles marches all too easily,” he wrote. “If it is within the scope of regulating commerce to set a minimum wage, one might argue, then Congress could set the minimum wage at $500 an hour. Would that force us to conclude that Congress therefore cannot set any minimum wage at all? Were Congress to legislate the extreme hypotheticals envisioned by those bringing these challenges, there will be ample constitutional doctrines available for the judiciary to use for the imposition of limits.”

    David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, also dispatched the slippery slope argument in a recent op-ed for The Indianapolis Star.

    “Today Congress requires us to buy insurance for the good of our health. Tomorrow, Congress might require us to buy broccoli for the good of our health or a General Motors car for the good of our economy,” Orentlicher wrote. “We would begin to slide down the slippery slope of officious government and hit bottom at the ultimate nanny state.

    “Nothing could be further from the truth,” he continued. “It has been seven decades since the Supreme Court recognized the power of Congress to regulate the way we spend our dollars.”

    In those decades, Orentlicher noted, Congress has never adopted such far-fetched mandates, like the one Will says could be coming if the high court upholds the constitutionality of the ACA’s minimum coverage provision. The liberty interests protected by the Constitution have prevented such mandates, and so has the political process. Orentlicher provides a lengthier defense of the minimum coverage provision for the University of Southern California law Review.

    During a panel discussion on the ability of the federal government to address national problems at the 2011 ACS National Convention, Dellinger also blasted right-wingers for bemoaning the minimum coverage provision, especially since they are typically the same bunch that celebrates government efforts to force women to wait lengthy periods for abortions or to listen to tired lectures about alternatives to abortion.

    Dellinger said, “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scriptured lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

  • June 23, 2011

    Despite claims about unprecedented intrusion on liberty, the litigation over the landmark health care reform law is really an “effort to change existing doctrine to have courts create and impose a new limitation on Congress’s ability to deal with major national economic problems,” said Indiana University law professor Dawn Johnsen during a plenary panel discussion at the ACS 10th Anniversary National Convention. She added that ultimately this effort to fundamentally change law surrounding commerce clause authority should remind us of the importance of judicial nominations.

    Since 1937, Johnsen, a member of the ACS Board, noted that the Supreme Court has almost always upheld Congress’s authority to enact laws regulating economic concerns. There have been only a few cases in recent time where the high court has invalidated laws as falling beyond Congress’s power to regulate commerce, she said. But the narrow majority in those cases expressed concern that the acts in question were too far afield from regulation of economic concerns. The Affordable Care Act (ACA), however, certainly deals with regulation of a major part of our economy, Johnsen concluded.  

    Randy E. Barnett, professor of law at Georgetown University Law Center, and a critic of the minimum coverage provision, told the audience, to laughter and applause, that the bill it got was one it really didn’t want and was actually a payoff to the insurance companies so they would not oppose the bill. Under current court doctrine, Barnett said, extending Medicare to everyone or having a single-payer plan would be constitutional.

    Walther E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, said without the minimum coverage provision, the ACA could not guarantee that health insurance coverage would be available to those with pre-existing conditions. He maintained that even if the minimum coverage provision were not supported by Congress’s powers to regulate commerce or to tax and spend, it is within Congress’s authority to create laws necessary and proper in carrying out its constitutional powers.

    Dellinger also took on the Right’s frequent argument that the ACA represents an unprecedented government intrusion into health care.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” he said. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods [for abortions], government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Video of the full panel discussion is available here or by clicking on image below.

  • March 22, 2011

    This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.


    One year after the passage of the Affordable Care Act, opponents who question the law's constitutionality are still sounding unwarranted alarm bells that regulatory floodgates will open if this law is upheld in court, much as they have when other landmark laws were passed, former acting Solicitor General Walter Dellinger said during an ACS phone briefing today on legal challenges to the health care law.

    "The attacks on [the law] are exactly like the attacks on Social Security and the minimum wage law, where it was said that if the retirement age could be set by congress at 65 it could be set at 25. It was said that if Congress could set the minimum wage at $5 it could set min wage at $5,000," said Dellinger, chair of the appellate practice at O'Melveny & Myers. "The court in upholding the Social Security Act and the minimum wage laws made light of those arguments and so should they here."

    Dellinger, echoing comments he made during a recent panel discussion on the Affordable Care Act, said whether the landmark health care law is constitutional "is not a close question."

    "I don't think that people are going to be sitting around on the court wringing their hands waiting to see what Justice Kennedy thinks. I believe that Chief Justice Roberts will be in the majority and that he will decide the opinion himself," Dellinger said.

    During the 30-minute national call, Dellinger explained how the conversation about the legal challenges has been shaped by "really a few libertarians" and took questions from others on the call.

    Listen to the call here.

  • February 16, 2011
    National Senior Citizens Law Center Public Policy Counsel Simon Lazarus and George Mason University law school professor Ilya Somin debate the constitutionality of the Affordable Care Act's individual responsibility provision for ACSblog. Their debate coincides with continued hearings in Congress over the constitutionality of the provision that requires some Americans to maintain health care insurance starting in 2014.

    Professor Somin, who opens the debate, says the provision is unconstitutional on a number of fronts. Specifically Somin says Congress's power to regulate interstate commerce does mean it has the power to require people to purchase health care insurance. The professor said not purchasing health care insurance is "not commerce and it's not interstate, and therefore it violates both the requirements that the Constitution imposes for an exercise of power under that clause."

    Lazarus, author of the recent ACS Issue Brief "The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government," said the provision was well within Congress's power to enact, and that if the Supreme Court were to rule otherwise it would mean the Constitution "gives unelected judges the authority to impose a straightjacket on Congress's" ability to tackle national economic concerns. Watch their entire debate below or here.

    Congress also heard more debate this morning over the Affordable Care Act's provision, with a House Judiciary Committee hearing that featured two opponents of the provision and one supporter. Virginia Attorney General Ken Cuccinelli who lodged one of the first lawsuits against the health care reform law and Georgetown University Law Center professor Randy Barnett testified against the provision. Walter Dellinger, former Acting U.S. Solicitor General, and chair of Appellate Practice at O'Melveny & Myers LLP, testified in favor of the provision. Earlier this month, the Senate Judiciary Committee conducted a similar hearing.

    In written testimony submitted to the Committee, Dellinger said the "assertion that the national Congress lacks the constitutional authority to adopt these regulations is a truly astonishing proposition. When these lawsuits reach their final conclusion, that novel claim will be rejected." Dellinger continued that there "are so many ways that the minimum coverage requirement is an appropriate exercise of Congress's power to regulate the national economy that it is difficult to know where to begin. Let me start with the undoubted proposition that Congress can regulate the terms and conditions upon which health insurance is bought and sold, making it indisputable that Congress can prohibit insurance companies from denying coverage to those with pre-existing conditions."

    Barnett, as he did before the Senate Judiciary Committee, warned that if the individual responsibility provision were upheld by the courts it would create a tyrannical federal government. "If this proposition is upheld," Barnett told the House panel, "I submit, the relationship of the people to the federal government would fundamentally change: no longer would they fairly be called ‘citizens;' instead they would more accurately be described as ‘subjects.'"

    On March 3, ACS will host an event discussing the legal challenges to the health care law featuring a keynote address by former Senate Majority Leader Thomas Daschle and a panel discussion including Dellinger, Lazarus and Somin.