January 2011

  • January 31, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, and author of the ACS Issue Brief, "Mandatory Health Insurance: Is it Constitutional?"
    Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century - since the New Deal - and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.

    Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.


  • January 31, 2011

    President Barack Obama has nominated two highly qualified individuals to serve in key executive branch legal positions, and "policy disagreements with the president" are not cause for denying him his selections, The Washington Post editorial board writes.

    The editorial praises the accomplishments of Sidley Austin partner Virginia A. Seitz (pictured), nominated to lead the Office of Legal Counsel, and White House Deputy Counsel Donald B. Verrilli Jr., nominated to become solicitor general.

    "The Senate has an opportunity - and a responsibility - to prove that the confirmation experience of Dawn E. Johnsen was an aberration," the editorial states.

    Johnsen, an ACS Board Member, was the previous nominee to head the Office of Legal Counsel, but she withdrew her nomination after 14 months of Republican obstruction, "in large part because Ms. Johnsen had criticized the Bush administration's detention and interrogation policies," the editorial states. "Now some conservatives are grumbling about President Obama's new OLC nominee - because she apparently has no publicly enunciated views on national security issues. Neat trick."

    The editorial continues:

    Their protestations, in any case, miss the mark. Policy disagreements with the president should not be used to deny him his choice of executive branch personnel. These appointees, who do not enjoy life tenure, are meant to carry out the president's prerogatives. Every nominee should get an up-or-down vote. And except for disqualifying ethical or legal lapses or views so extreme as to be far afield from the mainstream, the president should get his picks.

    Verrilli, a frequent ACS event participant, has argued many cases before the Supreme Court, and is known for "bringing passion to his pro bono work," according to a profile by The National Law Journal.

    Seitz, also a frequent ACS participant, is amassing a "small Republican 'fan club' " of lawyers at her firm and others who admire the quality of her work, The Blog of Legal Times recently reported.

  • January 31, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Daniel JH Greenwood, is a professor at Hofstra University School of Law, where he researches corporate governance and the role of corporations in our economy and democracy. He co-authored an amicus brief in Citizens United on behalf of the American Independent Business Alliance.
    A year later, Citizens United still looks like the modern Lochner v. New York. This case may well come to symbolize the Court's contribution to our modern Gilded Age and its destruction of the foundations of prosperity and democracy.

    Lochner symbolizes the Old Court's turning the Civil War Amendments on their heads. The Fourteenth Amendment promised African-Americans, and indeed all Americans, the rights of citizenship, equal protection and due process of law. The Court, instead, ruled that American citizens had fought the Civil War in order to forfeit our right to use democratic government to protect ourselves against the arbitrary power of "malefactors of great wealth."

    The Gilded Age's concentration of power and wealth in the hands of a few, symbolized and furthered by Lochner's rejection of basic American values, led straight to the Great Depression. Neither democracy nor market capitalism can long survive if entrenched economic power is permitted to set the rules of competition so that it always wins. When ordinary Americans lacked the power to demand wages high enough to buy the products and services they produced, the resulting shortage of demand nearly destroyed the system.

    Today, we are again in a crisis caused by a similarly radical upward shift of power and wealth. In sector after sector, economic incumbents have amassed enough power to be able to shift the rules in their own favor. We have raised CEO and banker pay, at the direct cost of ordinary employee wages, to the point where our major firms increasingly resemble the world's kleptocracies. The wonder is not that so many have collapsed, Enron-style, into complete corruption or, dot.com and housing-style, into utter incompetence and misallocation, but that so many manage to last so long, emulating the Soviet and Third World autocracies in their fantastically wealthy elites and long slow slides into collective failure.

  • January 28, 2011
    Guest Post

    By Sandy Newman. Mr. Newman is the President of Voices for Progress, and was one of the leaders of the Fix the Senate Now Coalition.

    Senators Tom Udall, Jeff Merkley and Tom Harkin have been extraordinary leaders of a hard-fought effort to reform the Senate rules. ACS, while not taking a position on specific proposals, worked to educate Senators about the constitutional history and the extent of current filibuster abuse. More than sixty organizations involved in an informal Fix the Senate Now coalition joined in supporting their proposals. It is therefore unsurprising that, with the defeat of the Udall, Merkley, and Harkin resolutions yesterday, the initial takeaway is that "reformers lost."

    My take: Yesterday was a day of considerable progress in the latest round of a multi-round fight to make the Senate work.

    Reformers won modest changes in the rules themselves by way of a deal negotiated between the leadership of both parties. They showed that they had nearly majority support for more substantial reforms. And they won an assurance that instead of Democrats playing by one rulebook when they are in the majority, only to have the Republicans subjugate them with different rules later, both parties will play by the same rules.

    Reformers did not prevail on a key procedural issue. They knew that, as in past rules reform battles, those opposed to reform would filibuster the proposed changes. Reformers relied on judicial and Senate precedents affirming that, because a previous Senate can't constitutionally limit the powers of today's Senate, a majority is sufficient to break a filibuster - if it does so before the Senate implicitly ratifies the old rules by operating under them. This procedure, the "Constitutional Option," differed from the 2005 "Nuclear Option," in which the Republicans attempted to throw out the rules in the middle of a session, after the new Congress had already ratified them.

    Senators Udall, Merkley and Harkin had put forward a proposal fair to both parties, one that they knew was unlikely to garner unanimous Democratic support. They had hoped to win the support of some Republicans for both the substantive proposals and the Constitutional Option, especially since so many Republicans had supported the far more radical Nuclear Option. In the end, even Republicans who had publicly called for reform refused to back their reform proposals.

  • January 28, 2011
    In spite of modest rules reform, the Senate failed to end the logjam and confirm any judicial nominees this week. At its hearing, the Judiciary Committee held over all business, including a scheduled vote on 11 judicial nominees, a response to Republican senators' request to delay this until all new committee members are appointed. Senate Judiciary Chairman Patrick Leahy expressed his frustration and reiterated the critical need to confirm judicial nominees in an op-ed in The Hill, pointing out that there are again more than 100 vacancies on the federal bench, half of which are considered judicial emergencies. The new federal chief judge for Arizona added his state to this list, declaring a judicial emergency as a result of a heavy criminal caseload, inadequate resources, and the tragic recent death of Chief Judge John Roll. On Thursday, President Obama nominated seven more to the federal bench. To learn more about federal judicial vacancies and follow the latest developments, visit JudicialNominations.org.

    Highlights from "In the News"

    • 1/27/11 - "GOP glitch delays judicial hearing," from The Washington Times
    • 1/27/11 - "Blumenthal, Lee join Senate Judiciary Committee," from The Blog of Legal Times