May 2010

  • May 28, 2010

    In an op-ed for the Boston Globe, Charles Fried, Harvard Law School Professor and former Solicitor General under President Ronald Reagan, writes why the new health care law’s individual mandate, which requires citizens to obtain health insurance to avoid a $700 penalty, is constitutional.

    Fried suggests that constitutional objections to the new law are “far-fetched,” drawing comparisons between the new law and the Supreme Court’s recent ruling in United States v. Comstock, which affirmed Congress’ power to allow the indefinite detention of child pornographers under the authority of the Constitution’s commerce clause. That same clause, Fried explains, reaffirms the constitutional integrity of the individual mandate:

    For the health regulation to work…it is “necessary and proper’’ — the clause explicitly in play in Comstock — to nudge (with the $700 penalty) the young and healthy to enter the insurance pool, and not to wait until they are old and infirm. Insurance just won’t work if you could wait until your house is on fire to buy it. But, say the objectors, this is not penalizing someone for doing something harmful; it’s penalizing him for not doing something, and that’s somehow different.

    It is not. Congress has the power to enact the regulatory scheme and to design it in a way that is “necessary and proper’’ to its good functioning, and that means sweeping in the unwilling.

    Fried also dismisses the objection that the new law “unconstitutionally imposes financial and administrative burdens on unwilling states,” noting that the statute provides an exemption to “unwilling states.”

    Ilya Somin at The Volokh Conspiracy countered Fried’s op-ed, charging that Fried is “mistaken both in his interpretation of Comstock and in his broader argument.” Somin argues that the individual mandate is not narrow in scope, as the ruling in Comstock stated, and dismisses health insurance as not falling under the designation of “interstate commerce.”

    In an ACS Issue Brief, Simon Lazarus examines the constitutionality of the individual mandate, explaining why there is a strong constitutional basis for it. To download that Brief, click here.

  • May 27, 2010

    Following a recent ACS event about the National Labor Relations Act, Professor Anne M. Lofaso talked with ACSblog about the limits of the federal law, which was enacted to encourage collective bargaining and protect the rights of workers. Lofaso, a law professor at the West Virginia University College of Law, said the act has been interpreted by the National Labor Relations Board (NLRB) in way that protects far fewer workers, and that remedies for workers have been curtailed.

    Lofaso, who moderated the ACS event, "The Legacy and Future of the National Labor Relations Act," is author of an ACS Issue Brief about some of the NLRB's decisions that have undermined the spirit of the federal law. That Issue Brief is available here. Watch Lofaso's entire interview below or download it as a podcast here. The entire event, which included a keynote address by Deputy Secretary of the Department of Labor Seth Harris, is available here.

  • May 27, 2010
    Guest Post

    By Neena Chaudhry, Senior Counsel, National Women's Law Center
    The New York Times' recently featured an article about the rise of flag football as a varsity sport among girls in Florida. I was quoted in the article as questioning whether the sport provides girls with equal educational opportunities when compared to boys' sports. Unfortunately, some have characterized such comments as unsupportive of girls who are playing the sport. While I understand the appeal of such a critique (after all, controversy sells), nothing could be farther from the truth, or the point. Flag football is an exciting sport (I was an avid football fan in high school so I understand the appeal), and I think girls should be able to play whatever they want.

    My questions are directed towards the educational institutions who decide what sports to offer-namely, the Florida High School Athletic Association (FHSAA) and its member schools. The real focus should be on whether their decisions provide equal educational opportunities to male and female students, as required by Title IX of the Education Amendments of 1972. (While athletic associations may claim that they are not subject to the civil rights laws, several courts have held otherwise and noted that these associations, not their individual member schools, have the power to set up state championships, decide the seasons for sports, and much more.)

    Looking at the issue from this perspective, some key questions emerge. When these educational institutions were deciding to add flag football as opposed to many other sports that girls still want to play, did they consider the educational opportunities provided by each sport, such as the availability of athletic scholarships or advanced participation opportunities? Of course sports are valuable regardless of the opportunity to play at a higher level or to get a college scholarship, and only a fraction of those who play in secondary school will want or be able to play competitively in college or beyond. But shouldn't we ensure that those limited opportunities are equally available to boys and girls? After all, college athletic scholarships are of the utmost importance to girls who could not attend college without them, and girls who have dreams of becoming Olympic or professional athletes need further opportunities to develop their skills. Would anyone argue that college scholarships and advanced opportunities are not relevant if we were talking about a boys' sport? Significantly, every single boys' sport sponsored by the FHSAA provides them with higher-level participation opportunities and/or the chance to receive an athletic scholarship, whereas more than one girls' sport does not. (The FHSAA also sponsors competitive cheerleading for girls and counts it as a sport for Title IX purposes, which may be legally problematic and is a subject for another day.) And this is against the backdrop of the larger picture where the playing field is still not level for young women. While they represent half of the students in our schools, girls receive only a little over 40% of the athletic participation opportunities and are not often not treated equally in terms of benefits and services when they do play.

    Assuming that the Florida educational institutions did not consider the above questions when they chose to add flag football to try to increase their female participation numbers after the state legislature required schools to report them, what is their plan to help girls now that it is one of the fastest-growing varsity sports in Florida? What are they going to say to girls who want to continue playing the sport beyond high school? One could argue that the FHSAA should have chosen another sport to sponsor first-one that already had these opportunities available for girls. But at the very least, the association and its member schools now have an obligation to help create a future path for those young women who are invested in playing this sport.

  • May 27, 2010
    The Ideological Origins of American Federalism
    Alison L. LaCroix

    By Alison L. LaCroix, Assistant Professor of Law, The University of Chicago Law School.
    Federalism is frequently regarded as one of the signal American contributions to the modern science of politics. Today, however, it is at once everywhere and nowhere in American constitutional and political discussions. Current debates over issues as diverse as the healthcare bill, the economic stimulus package, abortion, and medical marijuana - not to mention the emergence of the Tea Party, with its cry of "states' rights" - confirm this suspicion. Most Americans routinely employ the word "federal" to refer to a federal case, federal law, the actions of a federal prosecutor, or to the federal government itself. But what exactly does the term "federal" mean, and how did it come to have that meaning?

    For decades, historians and constitutional scholars have been engaged in a quest to understand the legal and political worldview on which the United States was founded. Liberalism, republicanism, popular sovereignty, commonwealth - each of these notions has contributed valuable insights into the conceptual and practical framework that underpinned the nation's founding and that continues to inform American political philosophy and public life.

    Federalism must be added to this list as a foundational idea of American law and politics. The rise of American federalism in the second half of the eighteenth century should be understood as an ideological development - and, indeed, as one of the most important ideological developments of the period. Thus, it was not simply a matter of political expedience or an institutional cover for economic interests. The core of this new federal ideology was a belief that multiple independent levels of government could legitimately exist within a single polity, and that such an arrangement was not a defect to be lamented but a virtue to be celebrated. By the early national period, federalism had become a theory of multiplicity - overlapping layers of government in which the goal was the overlap itself.

    Like judicial review - another "meta-constitutional" value - federalism's origins are typically traced to the drafting of the Constitution, despite the lack of any explicit reference to either concept in the document itself. To be sure, a set of ideas about government that would later be called "federalism" began to coalesce at the Constitutional Convention, conjured into action by the exigencies of a fraying confederation and the combined force of fifty-five creative minds. The product of these imperatives was not only a constitutional doctrine but rather an entire philosophy of government.

    Indeed, in the late eighteenth century, the new federal ideology rapidly became identified with the fledgling nation itself. More than a mere doctrine, the belief in multiplicity, overlap, and concurrence became a foundational principle of the American political enterprise. "Federal" and "republic" were the nation's twin attributes, terms so resonant that they were obvious choices for the names of the country's first political parties. From its origins in a disconnected set of pre-Revolutionary arguments about the relative powers of Parliament and the colonial legislatures to regulate colonial affairs, the federal conception of divided authority became necessary to the republic itself.

  • May 26, 2010
    Guest Post

    By Jody Kent and Beth Colgan. Kent is director and national coordinator of the Campaign for the Fair Sentencing of Youth, and Colgan is the managing attorney of the Institutions Project at Columbia Legal Services. Kent and Colgan are authors of an Issue Brief recently published by ACS called "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole."
    The U.S. Supreme Court's recent decision in Graham v. Florida, has conclusively established that for the purposes of the Eighth Amendment, youth are different-and therefore are afforded greater protections-than adults. In establishing a categorical ban on sentencing youth who have committed non-homicide offenses to life in prison without the possibility of parole (whether the constitution prohibits the sentence in homicide cases was not in front of the Court), the Court relied on longstanding precedent related to the Cruel and Unusual Punishments Clause, which "underscore the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes." (7)

    The human attributes at issue in Graham, were the unique characteristics of youth. As in its 2005 opinion in Roper v. Simmons, which outlawed the imposition of the death penalty against minors, the Court looked to psychosocial and scientific research that show "fundamental differences between juvenile and adult minds" linked to decision making, moral reasoning, and culpability. (17) As Amici including the American Psychological Association, American Psychiatric Association, American Medical Association and American Academy of Child and Adolescent Psychiatry explained in detail, as a result of anatomical differences between juvenile and adult brains and differing degrees of psychosocial development, youth do not have adult levels of judgment, impulse control, or the ability to assess risks. These same differences mean that youth are more amenable than adults to positive character development and rehabilitation.

    That those unique qualities of youth make it impossible for a judge to know at sentencing whether a youth is truly incorrigible, or whether he or she may someday be rehabilitated and redeemed, resonated throughout the Court's opinion. (22) That principle led the majority to conclude that a categorical ban on the sentence was required. While Chief Justice John Roberts joined the majority in concluding that youth must be afforded greater protections under the Eighth Amendment than adults, in his concurring opinion, he argued that a case-by-case proportionality analysis where age is considered at sentencing was a sufficient remedy. In the majority opinion, however, Justice Anthony Kennedy rejected such an approach, writing that the courts could not "with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change." (27)