Preemption

  • August 6, 2010
    Missouri voters in a primary with Republican contests grabbing the majority of statewide attention approved a measure, called Proposition C, which asserts that the state will flaunt a major provision of the landmark health care reform law once it takes effect in 2014. The proposition supported in an election with low voter turnout says the federal government's mandate that individuals purchase health care insurance or pay a fine would not apply to folks in Missouri. AOL News's Andrea Stone wonders whether such a "populist backlash," will survive court scrutiny.

    Regardless of whether a so-called populist backlash exists, Simon Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC) and author of an ACS Issue Brief on the constitutionality of the health care provision, told Stone the vote on Proposition C was likely to be quickly forgotten.

    A string of lawsuits are already lodged against the health care reform law. A a federal judge, earlier this week, allowed the one out of Virginia to proceed. The federal courts are likely to determine the constitutionality of the health care reform law before 2014.

    Lazarus said, "If federal courts decide it is unconstitutional, then laws like this one will be superfluous. It has no legal consequences. It's symbolic."

    Lazarus, noting that the vote occurred during a Republican-dominated election, added that the vote was akin to a "straw poll of Republicans."

    For more on the constitutionality of the health care reform law and the state lawsuits against it, watch an ACSblog interview with Lazarus. Also see a recent guest post from Lazarus and NSCLC Staff Attorney Sergio Munoz on the ruling by the federal judge in the Virginia lawsuit.

  • May 13, 2010

    In its first filing defending the Affordable Care Act, the Justice Department questions the plaintiffs' standing to bring suit. The response also argues that the law is within Congress' powers to tax and spend and clearly within congressional prerogative under the Commerce Clause.

    The suit, filed in a Michigan federal court by the conservative Thomas Moore Law Center, seeks to enjoin the provision mandating health insurance coverage for individuals from being enforced. The DOJ, noting that the individual mandate does not go into effect until 2014, says that the plaintiffs "demonstrate no current injury, and merely speculate whether the law will harm them once it is in force."

    Even if the plaintiffs were found to have standing, the DOJ writes, the suit's likelihood of success is minimal. Echoing points that have been made by constitutional law experts on the legality of the individual health care mandate, Justice Department attorneys cite congressional authority to tax and spend, and under the Commerce Clause, arguing that the Affordable Care Act falls well within Congress' powers under Article I of the Constitution. Arguments to the contrary "are flatly wrong," the DOJ's brief states.

    A copy of the Justice Department's filing is below.

  • April 30, 2010
    Guest Post

    By Alex Kreit, Assistant Professor of Law & Director of the Center for Law and Social Justice, Thomas Jefferson School of Law. Kreit is also Chair of the City of San Diego's Medical Marijuana Task Force & President of the San Diego Lawyer Chapter of ACS.

    Judging by the early election season news coverage a California ballot initiative to tax and control cannabis -- for recreational, not just medicinal, uses -- is poised to be one of the most closely watched races of the cycle. So, just what would this ballot initiative do and how likely is it to pass? This post will provide a primer on the law and politics of California's marijuana legalization initiative.

    The aspect of the ballot initiative that I've found catches most folks by surprise is what it won't do: make the sale of marijuana legal in the state of California. That's right, despite being billed in media reports as a vote on marijuana legalization, the proposal would not directly legalize the commercial sale, cultivation, or distribution of marijuana. Instead, it would allow local governments to enact ordinances to tax and regulate the commercial sale of marijuana.

    In other words, Amsterdam-style marijuana coffee shops would be legal only in cities or counties that wanted to permit them. And, in the cities and counties that did not take up the ballot measure's invitation, buying and selling marijuana would remain illegal. In the near term, it is likely only a relatively small percentage of localities would decide to opt-in and so marijuana would remain illegal to buy and sell in most of the state even if the initiative were to pass.

  • April 28, 2010

    The new Arizona law criminalizing being undocumented and permitting private citizens to sue for lax enforcement is likely to be struck down in court, according to The New York Times.

    The Times reports:

    "The law is clearly pre-empted by federal law under Supreme Court precedents," said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

    Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona's effort to enforce its own laws is destined to fail.

    But even some experts who say they are troubled by the law said it might survive challenges.

    "My view of the constitutional question is that it is unconstitutional," said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. "But it's a far cry from predicting empirically what a judge who actually gets this case will do."

    ...

    The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants' rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, "will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant."

  • January 25, 2010
    Guest Post

    By Thomas O. McGarity, Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas at Austin & Member Scholar, Center for Progressive Reform

    The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

    When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

    The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

    During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

    Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.