• August 6, 2010
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Professor Schwinn is also co-editor of the Constitutional Law Prof Blog.
    There's a lot to criticize in Federal District Court Judge Henry Hudson's ruling earlier this week allowing Virginia's case challenging the individual health insurance mandate to move forward. For example, the ruling gave credence to the recently enacted Virginia Health Care Freedom Act, the state's effort to nullify the federal mandate through legislation that purports to exempt Virginians. The Act was a thinly disguised attempt to legislate standing for the state-to give Virginia an interest in defending its own state laws. But Virginia has no real interest other than making a political statement. Its manufactured standing mocks Article III's case-and-controversy requirement and risks inspiring other states to fabricate standing simply by enacting legislation anytime a majority in a state legislature objects to a federal law.

    Then there's the ruling's apparent conflation of Congress's Commerce Clause authority and its taxing authority under the General Welfare Clause. The ruling runs uncomfortably close to saying that congressional authority to tax is cabined by its authority to regulate interstate commerce - a position flatly rejected by the Supreme Court since 1936. In fact the ruling says almost nothing about Congress's taxing power; instead, it falls back on the Commerce Clause, suggesting, with little analysis, that the mandate looks more like a "penalty" (enacted under the Commerce Clause) than a "tax" (enacted under the General Welfare Clause).

    These and other similar concerns with the ruling are troubling, but they come at only a preliminary stage of the litigation. The court will have another opportunity to consider the substance of the constitutional arguments, and not merely whether Virginia adequately pleaded its constitutional case. And as Judge Hudson wrote, this court will almost certainly not have the final say in the matter.

    Aside from these immediate and serious, but perhaps fleeting, doctrinal concerns, there is another problem with the ruling: The court embraced and legitimized Virginia's theory that the mandate amounts to "regulating non-action," and in so doing transformed a mere political argument into a budding constitutional doctrine.

  • 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."