November 2010

  • November 30, 2010
    As opponents of the landmark health care reform law are arguing that the entire law can be scuttled if the law's highly contested individual coverage provision is invalidated, a second federal judge has ruled that the provision is constitutional.

    U.S. District Court Judge Norman K. Moon, for the Western District of Virginia, rejected a lawsuit brought by the late televangelist Jerry Falwell's Liberty University arguing that several provisions of the law are unconstitutional. (Liberty University lodged a host of arguments against the constitutionality of the Affordable Care Act - which are outlined in the judge's 54-page opinion, available here.) The individual coverage provision requires that starting in 2014, persons must maintain health care insurance or pay a tax.

    Regarding the individual coverage provision, Judge Moon swept aside the university's arguments that not purchasing health care insurance is inaction that cannot be regulated under the Commerce Clause.

    Judge Moon wrote in Liberty University v. Geithner:

    Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care. The ‘fundamental need for health care and the necessity of paying for such services' creates the market in health care and the necessity of paying for such services received' creates the market in health care services, of which nearly everyone is a participant. Far from ‘inactivity,' by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.

    U.S. District Court Judge Henry E. Hudson, who is hearing another legal challenge launched in Virginia, has said he would rule before the end of the year on the challenge to the law's individual coverage provision. The litigation brought by Virginia Attorney General Ken Cuccinelli, and joined by more than a dozen other state attorneys general, argues the provision exceeds congressional power. As reported by TPM, opponents of the law say it lacks a so-called "severability clause," which they claim would save the remainder of the law, if a provision of it were found unconstitutional. Cuccinelli, The New York Times reports, claims that if Judge Hudson strikes the provision requiring the purchase of health care insurance that he should "instantly invalidate the entire act on a nationwide basis."

    But Timothy Jost, a law professor at Washington and Lee University and a "leading expert" on the law, told TPM that because the law contains no severability clause, "it does not necessarily mean that if the court strikes down a particular provision the rest of the law collapses ... the normal rule is that partial invalidation is the required course." The professor also noted that recent Supreme Court precedent suggests it is "exceptionally unlikely that any of the lower courts will attempt to strike the entire law."

    The individual coverage provision, however, as constitutional law experts have pointed out is central to providing health care to millions of Americans who are currently uninsured, and is well within Congress' constitutional powers.

    Earlier this year, U.S. District Court Judge George Steeh, who Judge Moon quoted in his opinion today, also found that the provision to purchase health care insurance is essential to making the health care law work. In Thomas More Law Center v. Obama, Steeh wrote, "The government explains that as a part of a comprehensive reform to reduce the ranks of the uninsured, the Act regulates economic decisions regarding the way in which health care services are paid for. The government contends that the Individual Mandate falls within Congress' authority under the Commerce Clause for principal reasons. First, the economic decisions that the Act regulates as to how to pay for health care services have direct and substantial impact on the interstate health care market. Second, the minimum coverage provision is essential to the Act's larger regulation of the interstate business of health insurance." Steeh continued, "Far from ‘inactivity,' by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants."

    For more on the constitutionality of the individual coverage provision, see an ACS Issue Brief by the National Senior Citizens Law Center's Simon Lazarus here.

  • November 30, 2010

    As controversy continues over the Supreme Court's decision last term in Citizens United v. FEC, the high court agreed this week to hear another potentially high-impact campaign-finance case.

    Two challenges to an Arizona law that provides matching funds to publicly funded candidates will go before the court this term, The National Law Journal reports.

    "The Arizona law allows candidates to receive an initial outlay of taxpayer dollars, as well as additional public matching funds if they face a privately financed opponent or independent political group that out-raises or outspends them," the newspaper reports. "Opponents say the additional matching funds provide publicly financed candidates with an unfair advantage and interfere with the ability of privately backed candidates and groups to deliver their messages."

    Loyola Law School, Los Angeles, Professor Rick Hasen, who maintains Election Law Blog, blogged about the impact the case would have just a day before the Supreme Court announced it would take the case. He predicts that the court will strike down the Arizona public financing system, taking away "one of the only tools available to drafters of public financing measures to make such financing attractive to candidates."

    He continues:

    Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish [v. Bennett] would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

    The full piece, posted on the Loyola Law School, Los Angeles, faculty blog, Summary Judgments, is available here.

  • November 30, 2010
    Court-watchers have noted the lack of diversity on the federal bench, and a new graph produced by the federal government confirms that gender diversity is seriously lagging.

    According to the graph from the United States Courts' website, which is maintained by the Administrative Office of the U.S. Courts on behalf of the federal judiciary, since 1998 the number of female judges has risen, but is still significantly lower than male judges. The number of women judges, since 1998, has increased to 496 from 302. In 2009 male judges exceeded 1,500.

    Glenn Sugameli, founder and head of the environmental community's Judging the Environment project and website on federal judicial nominations, told ACSblog, "The U.S. Courts' Federal Bench Gender Snapshot shows a disappointing lack of major progress in the percentage of female federal judges in recent years."

    Sugameli continued, "President Obama's 43 confirmed judicial nominees include 22 women and 17 men and women of color. Senate Republican obstruction of every pending judicial nominee, however, is blocking votes that would increase the diversity of the federal bench. Ten of the 23 nominees awaiting Floor votes are women and 13 are men and women of color."

    In an interview with ACSblog, Maryland law school professor Sherrilyn Ifill talks about the need to diversify the federal bench, noting that the decision-making process would be enhanced by judges "who represent and are reflective of the larger society." Ifill's interview followed an ACS panel discussion focusing on diversity on the federal bench.

  • November 30, 2010
    It appears not enough, for some proponents of a weak federal government, that a raft of lawmakers was just elected to Congress on calls for severely limiting the reach of the federal government.

    During a panel discussion at the Federalist Society's recently concluded 2010 National Lawyers Convention, Michael Stokes Paulsen, a law professor at University of St. Thomas Law School, slammed Washington, D.C. as remaining "in substantial part enemy-occupied territory for those who favor any serious meaningful, permanent reforms that would effectively limit national government," The Washington Post reports.

    Paulsen, participating in a panel discussion called, "Enumerated Powers, the 10th Amendment and Limited Government," said the only way to limit the work of the federal government was to hold a constitutional convention. He acknowledged that the idea of a constitutional convention has caused a "split between the buttoned-down, starched-shirt real, true conservative conservatives who fear a constitutional convention and the rabble-rousing, redneck tea party types who say, ‘Yeah, bring it on.'"

    The Post's Robert Barnes called the discussion, with several progressive constitutional scholars urging "caution and, judicial modesty," a bit "jarring." That was because the panel discussion followed remarks from the Senate Republican Minority Leader Mitch McConnell who told the gathering that a seriously limited federal government was on its way. McConnell said his colleagues in the forthcoming Congress would work to scuttle funding for the Obama administration's landmark health care law, while working in the courts to diminish it.

    Harvard Law School professor Mark Tushnet, a participant on the Federalist Society panel, pushed back against calls for amending the Constitution, saying, "It's very hard to defend amending the Constitution on the grounds of today's current viewpoint," especially the idea of limiting the ability of federal lawmakers. Tushnet said, "Amending the Constitution to preclude future democratic decision-making, that one's a little puzzling to me."

    George Washington University law school professor Jeffrey Rosen, in an article titled "Radical Constitutionalism" for The New York Times, notes that senator-elect Mike Lee of Utah has said the Constitution already allows for the shuttering the Departments of Education, and Housing and Urban Development. As Rosen notes, during his senate campaign, Lee said the Constitution "doesn't give Congress the power to redistribute our wealth." Lee, Rosen continues, also "proposed repealing the 16th Amendment, which authorizes the progressive federal income tax, and called the 17th Amendment, which allows senators to be elected by popular vote rather by state legislatures, a ‘mistake.'

  • November 29, 2010
    Education Policy
    Guest Post

    By Senator Tom Harkin (D-IA). Sen. Harkin is Chairman of the Senate Health, Education, Labor and Pensions Committee.
    For-profit colleges have seen explosive growth in recent years. Top executives have made fabulous fortunes, and shareholders have profited richly. But for many students at for-profit colleges, it has been a very different story. Despite glowing promises of a diploma followed by a good job, most students leave without graduating, many with few employment prospects, and nearly all with massive debts that could follow them the rest of their lives.

    This is a shame, because many for-profit colleges offer innovative options for students juggling work and family obligations. With more focus on students and less on shareholders, they could be a more valuable part of our higher education system. Regrettably, an ongoing investigation by my Committee has exposed an industry stained by widespread fraudulent and deceptive recruiting practices, overpriced programs, and staggering dropout rates.

    Just as subprime lenders used the promise of homeownership to lure Americans into loans they couldn't afford, some for-profit schools are using the promise of higher education to lure students into taking on large amounts of student loan debt without delivering the promised increase in earning power.

    An undercover General Accountability Office investigation found that all 15 schools they visited in May/June 2010 were using deceptive recruiting practices to convince students to enroll and take out loans. Witnesses at HELP Committee hearings have told horrifying stories of taking on massive debt only to find that the programs they enrolled in weren't accredited or that the clinical programs they had been promised did not exist.