• June 22, 2011

    Several of the nation’s top constitutional experts engaged in a robust discussion on what the U.S. Constitution means and how to interpret it, during the opening plenary discussion at the American Constitution Society’s Tenth Anniversary National Convention.

    ACS Board Chair Geoffrey R. Stone, a law professor at the University of Chicago, kicked off the discussion by offering a new way of framing constitutional interpretation, as articulated in a recent article in Democracy: A Journal of Ideas he coauthored with University of North Carolina law professor William Marshall, entitled “The Framers’ Constitution.”

    In the article, Stone and Marshall lay out their vision for interpreting the Constitution as the Framers intended, recognizing that the Framers were “visionaries” and not “timid men” who would have viewed originalists’ vision that “any particular moment’s understanding of the meaning of the Constitution’s open-ended provisions should be locked into place” as wrongheaded.

    “As men of the Enlightenment, [the Framers] believed that just as reason, observation and experience would enable us to gain greater understanding over time into questions of biology, physics, economics and human nature, so, too, would they enable us to learn more over time about the content and meaning of the broad principles they had enshrined in our Constitution,” Stone explained in his remarks.

  • May 11, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

    What good is Medicaid insurance if doctors won’t provide preventive care and pharmacists won’t dispense medications?  When reimbursement rates are too low, doctors and pharmacies can decline to provide care.  Then without meaningful access to medical care and services, individuals are likely to experience dire health consequences that are much more expensive to treat in emergency rooms. 

    To lower their short term Medicaid costs, some states are slashing rates reimbursement for medical providers.  But lowering rates only for low-income Medicaid beneficiaries does not drive down the cost of health care.  Instead, providers just stop serving Medicaid patients and keep getting paid higher rates by everyone else.  And without preventive care, beneficiaries are prone to end up seeking emergency treatment, eliminating in the long term any short term fiscal savings.

    To address the issue of rates so low that treatment is refused, the Centers for Medicare and Medicaid Services (CMS) issued proposed regulations last week that explain the requirements of federal law when states seek to lower Medicaid rates.  The regulations “clarify that beneficiary access must be considered in setting and adjusting payment methodologies for Medicaid services.” 

  • April 14, 2011
    Guest Post

    By University of Arizona College of Law professors Gabriel “Jack” Chin and Marc L. Miller, coauthors with law professor Toni M. Massaro of the ACS Issue Brief, “The Constitutionality of Arizona SB 1070 and Other State Immigration Laws.”

    State efforts to regulate immigration have run into a rough stretch lately.

    In the 2010 and 2011 legislative sessions, legislators around the country introduced copycat versions of Arizona’s SB1070, designed to drive undocumented immigrants out of the state through a policy of “attrition through enforcement.” (The ACS Issue Brief on the topic is here). Only one of the dozens introduced has actually become law, in Utah. The Utah law’s radical difference from the Arizona statute is exemplified by inclusion of a state level guest worker program designed to allow some undocumented people to stay. 

    In September, 2010, the Third Circuit invalidated a local anti-immigrant ordinance. The Town of Hazelton imposed local restrictions on employment and housing designed to make it impossible for undocumented people and their families to live in the city.

    The latest bad news came on Monday, when a Ninth Circuit panel affirmed all aspects of a July, 2010 injunction against many provisions of SB 1070. The panel decision and partial dissent framed the issues with clarity and precision, making it easy for the Supreme Court to take the case and, in a way, perhaps inviting them to do so.  

  • March 7, 2011

    Those interested in monitoring how the Supreme Court will rule on challenges to the Affordable Care Act should mark their calendars now for the last week in June of 2012, former acting solicitor general Walter Dellinger, chair of the appellate practice at O'Melveny & Myers, said during an ACS discussion about challenges to implementation of the health care law.

    And on that June  day when the Supreme Court does issue a decision, Chief Justice John Roberts will join the majority to uphold the law, Dellinger predicted.

    "I think at the end of the day Chief Justice Roberts will be in the majority to uphold this," Dellinger said. "He is thinking of a very long philosophical position as a chief justice and he would not want to adopt a principle that said that 25 or 30 or 40 years from now, the only way Congress could deal with a social problem is by providing a monolithic, single, governmental bureaucratic approach, rather than creating incentives for people to utilize choices within the free market. Why would someone who has grown up with conservative principles want to adopt that?"

    The panel discussion featured a keynote address by former Senator Tom Daschle, who predicted that, even if all goes well in implementing the Affordable Care Act, it will take at least a generation before the law fulfills its potential. But, he continued, it's potential worth fighting for.

    "This is a fight for the equality and the liberty of all Americans and their moral right to health security at long last," he said.

    As the debate that followed his remarks got under way, news broke that U.S. District Court Roger Vinson had issued a seven-day stay of his decision in Florida federal court striking down the health care law, allowing the Department of Justice time to appeal.

    "I think what's most important is that we have the news that we've just had, which is that the Vinson decision has actually been stayed," Center for American Progress Chief Operating Officer Neera Tanden said in response to the news. She continued:

  • February 24, 2011
    The Perils of Federalism
    Race, Poverty and the Politics of Crime Control
    Lisa L. Miller

    By Lisa L. Miller, an associate professor of political science at Rutgers University.
    Conventional wisdom holds that federalism is one of the greatest contributions that the United States has made to modern democratic politics. Americans generally laud federalism for its limitations on government power, its facilitation of policy innovation at regional levels, and the multiple opportunities it provides for political engagement of the citizenry. This view is vividly on display in the recent state lawsuits filed against the federal government claiming that the health care bill, passed by Congress and signed by President Obama, is unconstitutional. The primary legal claim in these suits is that, in passing the bill, Congress violated the principles of American federalism by exceeding its power under the commerce clause (Article I, Section 8) and by infringing on the 10th Amendment through policymaking traditionally reserved to the states.

    My concern here is not with the legal technicalities of the lawsuits but, rather, with the implicit assumptions about American federalism upon which they rely, particularly with respect to federalism's origins, purpose and functions. Traditional claims about the importance of limiting the scope of congressional authority and the benefits of decentralized decision-making are complicated by empirical investigations into the origins and impact of American federalism on actual politics.

    A key claim about federalism is that it serves to promote citizen engagement and democratic representation by facilitating political activity at the periphery of the polity, not just the center. This is implicit in the health care lawsuits' claim that congressional action threatens the democratic practices reserved to states. But this claim is undermined by my research on actual patterns of political participation across different legislative venues. As I demonstrate in my book, The Perils of Federalism: Race, Poverty and the Politics of Crime Control, political participation and policy innovation by broad segments of the population can be hindered by federalism. This is because the fragmented and multi-layered American political landscape exacerbates classic collective action problems that plague groups concerned with broad social problems. Indeed, American-style federalism facilitates political activity by the exceptionally highly organized and those with the most robust resources, even when those groups represent only a fraction of political viewpoints on a given issue. Furthermore, it exacerbates existing race and class stratifications because citizens in greatest need of broad and deep political mobilization are those with the least capacity to sustain it across the fractured political terrain of American politics.

    An example of this that emerges from the book is the success of the National Rifle Association, which manages to appear at legislative hearings in local city councils, multiple state legislatures and Congress whenever there is even the appearance of gun control legislation on the horizon in one of these venues. By contrast, people actually suffering from gun violence, accidents and suicides in the high-risk communities where guns are readily available are more diffuse and have far fewer resources to help them migrate across these many venues. In large urban areas there is intense political pressure to restrict gun access but cities are notoriously weak under our federal system and the interests of these groups are largely out-maneuvered in venues farther up the vertical federalism hierarchy.