February 2011

  • February 17, 2011
    The argument that the Affordable Care Act includes a provision that will greatly increase the power of Congress and trample liberty is intended to "scare" up opposition to the landmark law, said Rep. John Conyers, Jr. during yesterday's House Judiciary Committee hearing on the law's constitutionally.

    Conyers also said that long before they opposed the law's individual responsibility provision, which requires some Americans to maintain health care insurance starting in 2014, many Republican leaders supported it. He noted that Sens. Orrin Hatch and Charles Grassley included a similar provision in legislation they put forward in response to the health care reform measure advanced during the Clinton administration. The House Judiciary Committee's Ranking Member also noted that former Mass. Gov. Mitt Romney supported a provision requiring citizens to carrying health care insurance. That state law, Conyers said, "helped reduce insurance premiums by 40 percent while the national average has increased 14 percent."

    Conyers addressed health care reform opponents' claims that Congress has exceeded its constitutional authority by enacting the individual responsibility provision, saying that its power to regulate commerce and to use "necessary and proper" means to advance legislative priorities buttresses the constitutionality of the provision.

    The representative also took on the claim that the Affordable Care Act endangers liberty.

    He said:

    Finally, we have been hearing that this is all about individual liberty, the right to be let alone. But is it really? For example, states can, and do, require citizens to purchase car insurance. And, in Massachusetts, legislation signed by former Governor Romney obligates the state's residents to purchase health insurance. Many other laws impose affirmative action obligations on our citizenry: we must pay taxes, send our children to schools and vaccinate them, contribute to Medicare and Social Security, to name just a few. Surely some citizens would like to avoid these requirements as well. But, aside from religious objectors, who also are excused here, they have no constitutionally recognized right to do so. The liberty interests at stake do not change simply because it is the federal, rather than the state, government that is imposing the requirement. While we can debate whether the Congress has the power to impose this requirement - something I believe we clearly do - we should not scare Americans into believing that how we resolve that questions says anything about their individual liberty.

    For more discussion about the health care reform law's individual responsibility provision see the following debate between Simon Lazarus of the National Senior Citizens Law Center and George Mason University law school professor Ilya Somin. Also, on March 3, former U.S. Senate Majority Leader Tom Daschle will provide a keynote address at an ACS event featuring a debate on the law's constitutionality.

  • February 17, 2011
    Courage to Dissent
    Atlanta and the Long History of the Civil Rights Movement
    Tomiko Brown-Nagin

    By Tomiko Brown-Nagin, Justice Thurgood Marshall Distinguished Professor of Law and a professor of history at the University of Virginia. See a calendar of Brown-Nagin's upcoming book events here, including a lecture and book-signing March 23 at the National Portrait Gallery in Washington, D.C.
    Len Holt, Donald Hollowell and Howard Moore, Jr. These names, unfamiliar even to many who are avid readers of civil rights history, feature prominently in Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement. All three - Holt, Hollowell, and Moore - were attorneys who litigated in the federal and state courts and worked in the trenches with political activists and community organizers. They made important contributions to the mid-twentieth century struggle for racial equality - contributions overshadowed when we view the legal history of the movement primarily from the perspective of the U.S. Supreme Court, the Justices who decide landmark cases in the nation's capital, and the well-known lawyers who litigated marquee cases. Courage to Dissent - a book that blends the legal and social history of the civil rights movement within the context of a particular community - shines a spotlight on these unsung lawyers and the activists with whom they worked. It explores a largely forgotten history of progressive lawyering in postwar America. Its protagonists are legal professionals and agents of change whom we ought to remember.
  • 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.

  • February 15, 2011

    Following the Senate's confirmation yesterday of two more judicial nominees, some 75 environmental, labor, civil rights and good government groups, including the American Constitution Society, have called on Senate leaders to continue its momentum and promptly confirm nominees as they are approved by the Senate Judiciary Committee.

    In a letter to Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell, the groups caution that continued obstruction of nominations "would further poison the political atmosphere."

    "[W]e strongly urge you to continue to work together in a bipartisan fashion to proceed with prompt confirmation votes on judicial nominees who have been approved by the Committee on the Judiciary," the letter states. "Floor votes should be taken on nominees shortly after they have been reported out of committee, so that the process can work in a regular manner."

    The Senate has now confirmed five nominees this session - three last week and two this week, out of the eleven that have been approved by the Senate Judiciary Committee. There remain, however, 101 vacant seats subject to Senate confirmation on the federal courts. And federal judges are now retiring at a rate of one per week, The Washington Post reported last week in a front-page story noting that federal judicial vacancies have reached a "crisis point."

    "The Senate has started to make some progress, but there's a long way left to go," said Marge Baker of People for the American Way, one of the groups that signed onto the letter.

    To learn more about the judicial vacancy crisis and follow developments, visit JudicialNominations.org.

  • February 15, 2011
    The federal law barring states from recognizing marriages of lesbians and gay men is discriminatory and very likely violates the Constitution's Equal Protection Clause, writes a leading constitutional law scholar for The Huffington Post.

    Geoffrey R. Stone, a distinguished law professor at the University of Chicago law school and chair of the ACS Board of Directors, says the Supreme Court has "concluded that the proper application of the Clause requires the use of heightened scrutiny to test the constitutionality of laws that discriminate against African-Americans or that discriminate against other groups in society that are similar to African Americans for purposes of the Equal Protection Clause."

    The high court, Stone continues, looks at several factors to determine whether the Equal Protection Clause protects a group from discriminatory laws. The high court asks whether the group has been "subjected to a history of discrimination," whether it can "effectively protect itself in the political process," whether the "group is objectively different in some meaningful way that would logically justify treating its members differently than others," and "whether the group's status is immutable," Stone writes.

    Using that criteria, Stone says the high court has found that "laws that discriminate against ethnic minorities and women are sufficiently similar to laws that discriminate against African Americans to justify testing them by heightened scrutiny."

    For gay men and lesbians the only criteria that might be questioned is whether the group's status is immutable. Stone notes that there is a "general consensus today that one's sexual orientation is not a matter of choice."

    He continues:

    Although there are those who dispute this proposition, the great weight of the evidence cuts the other way. If you are a heterosexual, imagine if you suddenly had to lead your life as a homosexual. All of your instincts would cut strongly in the opposite direction. You might be able to force yourself to engage in sex with people of the same sex, but it would seem wholly unnatural and, more importantly, you would continue (secretly) to be attracted to persons of the opposite sex, even if you could no longer legally act on those attractions. This is pretty much what sexual orientation means, and in its deepest sense the orientation seems to be beyond one's own control. One can (perhaps) change one's conduct, but not one's orientation.