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April 1, 2013
Constitutional Disability
by E. Sebastian Arduengo

NPR recently aired a sobering account of the state of Social Security Disability Insurance (Disability) a government program that provides 14 million Americans with a sustenance income,while providing them no real means of addressing their physical or mental affliction or economic poverty. In fact, less than one percent of people ever transition from Disability into the world of work with all of its attendant benefits, like raises, meaningfulness, social contact, etc., meager as those may be with some jobs. Most people simply die while on Disability or lurch onto regular Social Security, the government social insurance program that provides benefits to the elderly.

In the severely depressed labor market of the Great Recession, which itself greatly favors information-centric skills, many older workers with little education who have been laid off from manufacturing jobs feel that going on to disability is a better choice for making it to retirement than spending their last few years in a menial job where they have to stand all day. But, it’s not just former blue collar workers in the Mississippi valley and Pacific Northwest that are going on disability. In cities across the country, entire families subsist off of the disability check they receive because they have a child with a learning disability.

It’s a system that is riddled with perverse incentives. If a child on disability starts to succeed in school that actually threatens the family’s livelihood. So, it’s actually in the best interests of the family financially if a child continues to struggle in school. Unlike Temporary Assistance for Needy Families (welfare), if a beneficiary starts to work, they aren’t eased off of the program – they face a real risk of immediately losing all of their benefits.

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Tags:
Disability rights, Economic inequality, Constitutional Interpretation and Change, Social Security Disability Insurance, TANF, Temporary Assistance for Needy Families, William E. Forbath
April 1, 2013
The Tough Luck Constitution
BookTalk

The Tough Luck Constitution and the Assault on Healthcare Reform

By:
Andrew Koppelman

Available here

by Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University Law School

Last spring, the Supreme Court came within one vote of taking health insurance away from over 30 million people, exposing a dangerous intellectual trend that, simply put, threatens to hurt you and your family. The near-success of the constitutional arguments against the Affordable Care Act is scary news, because those arguments silently rely on a philosophy at war with the most fundamental purpose of the Constitution: to empower the American people to solve their most pressing problems.

The ACA included an individual mandate to have insurance, because no other path to universal insurance was workable. Even Republicans had supported such a mandate for years. Universal health insurance logically means that everyone must have insurance.

The litigation depended on a different ideal, which we can call Tough Luck Libertarianism: any obligation of healthy people to contribute to care for the sick is an intolerable imposition on liberty; if you get sick and can’t pay for care, that’s your tough luck.

The constitutional challenge was devised by conservative lawyers who had, for a long time, been eager to impose limits on Congressional power. They proposed a new and previously unheard-of constitutional rule: the state can’t make you do things or buy things. It may regulate only those who engage in some self-initiated action.

This action/inaction distinction came advertised as a great bulwark of liberty. Actually, it was a crude bit of political opportunism. No one can live in the world without engaging in self-initiated actions all the time. This rule is not a serious constraint on government power. It allows Congress to act in every case in which the citizen has voluntarily taken some action. Most of us can’t realistically avoid having jobs and buying things, and it’s not much consolation to be told that I can avoid oppression if I live in the woods and eat berries. This limitation is unlikely to have any application after the ACA litigation, and is patently tailored to bring about a desired result in a single case.

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Tags:
Commerce clause, Supreme Court, Constitutional Interpretation and Change, ACA, Affordable Care Act, Andrew Koppelman, BookTalk, individual mandate, The Tough Luck Constitution
March 29, 2013
Pushing the ‘Boundaries of Roe’ is Really about Shredding Rights of Women
by Jeremy Leaming

Tea Party activists and many of today’s Republican politicians claim to loathe big government. They say they want a limited government role in our lives. But when it comes to the autonomy of women or privacy rights of gay couples, many of those same activists and politicians clamor for government interference.

A few weeks after Arkansas lawmakers adopted one of the nation’s most restrictive measures on abortions, banning them at 12 weeks of pregnancy; North Dakota Gov. Jack Dalrymple signed into law an even more outlandish attack on abortion. The law forbids abortions once a fetal heartbeat is detectable, as The New York Times reported earlier this week. Fetal heartbeats, the newspaper noted can be detected “as early as six weeks” by using an invasive procedure, a transvaginal ultrasound.

In his statement announcing signing of the bill, HB 1456, into law, Gov. Dalrymple said “the likelihood of this measure surviving a court challenge remains in question,” but it is nevertheless “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

Discovering the boundaries of Roe is a euphemism for lawmakers’ efforts to topple the landmark Supreme Court opinion. State lawmakers have been on a tear over the last few years passing measures aimed at making it incredibly difficult for women to obtain abortions, especially for women with little means to travel long distances to find a physician willing and able to perform abortions. It is not enough that lawmakers have crafted laws that force women to listen to government propaganda about the alleged dangers of abortions or undergo invasive medical procedures; they want the ability to bar women from receiving abortions.

In Roe, the high court held that the Constitution’s protections of privacy include the decision to have an abortion. The Roe Court only said that states could regulate that right at the point of viability, about 24 weeks.

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Tags:
Supreme Court, Privacy rights, Reproductive freedom, Constitutional Interpretation and Change, Women's rights, Equality and Liberty, Arkansas, Gov. Jack Dalrymple, Ilyse Hogue, NARAL, North Dakota, Roe v. Wade, ultrasound
March 29, 2013
Scalia’s ‘Concrete’ Claim about Same-Sex Adoption
by Jeremy Leaming

During oral argument in the case raising constitutional challenges to California’s anti-gay law, Proposition 8, Justice Antonin Scalia sought to help out the attorney defending the law, by providing him “some concrete things.”

One of the supposed concrete things Scalia pushed, as The Washington Post’s Ezra Klein notes, was anything but. Scalia claimed that there is “considerable disagreement among” sociologists over the effects on children raised by same-sex couples. But as Klein reports that is simply not true and Scalia should have known that.

In a friend-of-the-court brief before the high court, the American Sociological Association said, “The clear and consistent consensus in the social science profession is that across a wide range of indicators, children fare just as well when they are raised by same-sex parents when compared to children raised by opposite-sex parents.”

Klein blasts Scalia for pushing a supposedly “concrete” example of the harm that could occur if states were to stop excluding same-sex couples from marriage. “Scalia offered no details or evidence of this considerable disagreement among sociologists, and it’s hard to believe he’s a better judge of the profession than the ASA, whose brief he notably declined to mention,” Klein wrote.

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Tags:
Supreme Court, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, American Sociological Association, gay adoption, Hollingsworth v. Perry, marriage equality, Proposition 8, Same-sex marriage
March 29, 2013
We Should Not be Satisfied Until Full Marriage Equality is Realized
by Caroline Fredrickson, ACS President. This piece is cross-posted on The Huffington Post.

It has to do with "our dignity," being able to be who we are openly. That's what Edith S. Windsor the woman challenging the cramped definition of marriage embedded in the so-called Defense of Marriage Act (DOMA) said in a documentary about her longtime relationship with Thea Spyer. The two were married in Canada, a country that does not exclude lesbians and gay men from marriage, after more than 40 years together and not long before Spyer died of complications related to multiple sclerosis.

The U.S. Supreme Court heard oral argument in the case lodged by Windsor and in another case challenging California's ant-gay law, Proposition 8, which stripped lesbians and gay men of the right to wed in that state. It's difficult to predict how the Court will rule based solely on oral argument. But a consensus is building among many court-watchers that the justices appeared likely to move only incrementally on marriage equality.

In the Prop 8 case, Hollingsworth v. Perry, the justices dwelled heavily on a threshold question - is a handful of Prop 8 proponents the right group to defend the law before the Court. If the justices toss the case on procedural grounds, it likely means that lesbians and gay men can resume obtaining marriage licenses in that state, but would have no effect elsewhere. In the DOMA case, U.S. v. Windsor, the justices also focused heavily on standing, but when they turned to the substance of the case - a constitutional challenge to the federal government's narrow definition of marriage - several of the justices seemed far more concerned about the law's impact on federalism than on equal protection. Thus a majority of justices may be ready to invalidate DOMA's central provision, but on very narrow grounds. So in both cases the Court could provide very little progress on a core question - should laws that classify lesbians and gay men for unequal treatment be subjected to a much tougher constitutional test?

Supporters of marriage equality in both cases urged the justices to find that laws targeting gay men and lesbians should be subjected to a heightened scrutiny when challenged in court. In other words, the government would have to show a compelling interest in enforcing a discriminatory law - a very difficult test to meet. The high court, however, can avoid that declaration and questioning during oral argument in both cases suggested that may be what occurs. On marriage alone, however, it is unlikely - regardless of how the Court rules -- that the robust movement for marriage equality will stall. These cases have made the question over marriage an easier one for many Americans to answer.

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Tags:
Supreme Court, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor, Caroline Fredrickson, Defense of Marriage Act, DOMA, Edith Windsor, marriage equality, Propositon 8, Thea Spyer