Walter Dellinger

  • July 29, 2011
    Video Interview

    by Jeremy Leaming

    Right-wing policy makers have spent more than a year bemoaning, as a serious affront to liberty, the Affordable Care Act’s (ACA) provision that requires people to carry, starting in 2014, a minimum amount of health care insurance or pay a penalty. Supporters of the health care law point out, however, that without the minimum coverage provision, the landmark health care reform law would be ineffective, allowing insurance companies to discriminate against people with pre-existing conditions, thereby undercutting a main impetus of the law, which is to make sure that the vast majority of Americans are able to carry health care insurance.

    Despite the hue and cry from the Right over the ACA’s minimum coverage provision, government mandates on abortion continue to proliferate in the states, especially those states with legislative bodies controlled by right-wing policy makers.

    Yesterday, the North Carolina Senate successfully enacted a law that will require women seeking abortions to wait 24 hours, receive state-mandated “counseling,” and a state-mandated ultrasound before receiving the medical procedure. Both chambers of the North Carolina General Assembly overrode Gov. Bev Perdue’s veto of the measure. Twenty-five states now require government-mandated “counseling” and waiting periods before women can receive abortions.

    Following the Assembly’s action, Gov. Perdue issued a brief statement saying, “The Republican’s social agenda has, with this bill, invaded a woman’s life as never before – by marching straight into her doctor’s office and dictating the medical advice and treatment she receives.”

    The Center for Reproductive Rights President and CEO Nancy Northup ripped the new law as politically motivated and constitutionally suspect.

    “It is extremely disheartening that the North Carolina legislature would go out of its way to enact a law that uses the doctor-patient relationship to advance a political agenda,” Northup said in a press statement. “When women go to the doctor, they don’t expect to be held hostage in an attempt to change their minds. They rightfully expect to be treated as an adult capable of making their own personal decisions. This law is an affront to a woman’s dignity and a violation of her constitutional rights.”

    At the ACS 10th Anniversary National Convention, former Acting Solicitor General Walter Dellinger, a partner at O’Melveny & Meyers, blasted the Right’s rhetorical and legal attacks on the health care law’s minimum coverage provision, saying he’s had enough of the lectures about government encroachment on liberty.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” Dellinger (pictured) said during a panel discussion on the constitutionality of the ACA. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Louise Melling, director of the ACLU’s Center for Liberty, in an interview with ACSblog, said this year has been an especially bad one for reproductive rights. (And this interview came before the action in N.C. She talked with ACSblog following a panel at its national convention on reproductive rights.)

    The bills passed are making it more and more difficult for women to find physicians who can perform abortions, and having a stigmatizing effect as well, Melling said.

    “It is also a way of stigmatizing to say ‘women can’t make these decisions,’ we’re not … trusted decision-makers, and we need assistance as we make this decision,” she said.

    And what is awfully “scary,” Melling said was that politicians are not paying a price for supporting the draconian laws.

    “Nobody is really standing up to say this is not ok, these laws are just rolling right through,” she said.

    Watch her entire interview below or download a video podcast of it here. The video is also available at this site.

  • July 22, 2011

    by Nicole Flatow

    A constitutional amendment to balance the nation’s budget is set to be considered by the House of Representatives next week, and its chances for passage appear low. “But the fact that so many House members support the amendment is alarming," writes former Acting Solicitor General Walter Dellinger in The New York Times. "[I]f it were to become law, it would do grave harm to our constitutional system, because the process for enforcing it would be uncertain and perilous."

    Dellinger, a partner at O’Melveny & Myers and a member of the American Constitution Society’s Board of Advisors, explains in an op-ed that an amendment mandating that “[t]otal outlays for any fiscal year shall not exceed total receipts for that fiscal year” places an “empty promise” in our Constitution and could have a “very corrosive effect.”  

    Because of the many implementation and enforcement questions raised by a balanced budget amendment, the entire budget process is likely to end up in court, Dellinger suggests, particularly given that new versions of the amendment “clearly contemplate judicial involvement and even provide that members of Congress can bring lawsuits to enforce the limits.”

    “Allowing federal judges to make fundamental decisions about spending whenever outlays threatened to exceed receipts would be an extraordinary expansion of judicial authority,” Dellinger writes.

    Even conservative constitutional scholar Robert H. Bork has warned that such an amendment would result in “hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results.”

    On the other hand, if courts declined to get involved in the budget process, "it would render the amendment unenforceable," Dellinger notes.

    It would be wonderful if we could declare that from this day forward the air would be clean, our children well educated and the budget forever in balance. But merely putting such things in the Constitution — as some foreign governments have done — would not make them happen.

  • July 8, 2011

    by Jeremy Leaming

    First it was broccoli, now it's Weight Watchers.

    The right-wing blogosphere is gushing over George Will’s latest attempt to paint the minimum coverage provision of the Affordable Care Act (ACA), as a wild overreach by the Obama administration. If the government can force individuals to carry health care insurance, surely it can enact a law requiring us to eat healthy or force obese Americans to join Weight Watchers.

    During a recent discussion, “Battle for the Constitution,” on ABCNews’s “This Week,” Will claimed that obesity impacts interstate commerce, and therefore does it not follow that Congress has the constitutional power to require overweight people to join Weight Watchers. Time’s Richard Stengel said he did not know, and Georgetown University professor Eric Dyson said the question is open.

    Their responses didn’t satisfy Will, who kept demanding to know whether Congress can force heavy Americans into Weight Watchers. But Will’s spin on the broccoli law argument did excite the right-wing blogosphere. (Breitbart.TV, “George Will Brilliantly Traps Liberal Panelists With Obamacare Constitutional Challenge.”) Will’s spin is not that new by the way – he has been asking the Weight-Watchers question for some time. See his columns here and here.

    But there are plenty of constitutional law experts who have had no problem quickly trashing outlandish slippery slope arguments, such as Will’s. (Will may fancy himself a constitutional law expert, but he is not. A decent pundit, he may be.)

    Earlier this year before a Senate Judiciary Committee hearing on the “Constitutionality of the Affordable Care Act,” Charles Fried, a Harvard law school professor and former solicitor general under President Reagan and Walter Dellinger, partner at O’Melveny & Meyers and former acting solicitor general under President Clinton, both testified that liberty interests protected pursuant to the Constitution would prohibit the government from mandating that people engage in behavior like purchasing gym memberships or more broccoli, or joining Weight Watchers.

    In his written testimony before the Committee, Dellinger states:

    The minimum coverage provision of the Affordable Care Act tests no limits and approaches no slippery slope. Notwithstanding the improbable hypothetical put forth by those bringing these lawsuits, Congress never has and never would require Americans to exercise or eat certain foods. Were Congress to consider laws of that kind infringing on personal autonomy, the judiciary would have ample tools under the liberty clause of the Fifth Amendment to identify and enforce constitutional limits. What the Affordable Care regulates is not personal autonomy, but commercial transactions.

    Suggestions that sustaining the minimum coverage provision would mean that Congress could mandate the purchase of cars or comparable items are also disingenuous. The provision requiring minimum health insurance cannot be viewed in isolation. It is an integral part of regulating a health care market in which virtually everyone participates. No one can be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one’s ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.

    Dellinger also took a shot at slippery slope arguments, noting they too are often “slippery.”

    “Where the issue is simply whether something falls within the scope of a subject matter over which Congress is given jurisdiction to legislate, the parade of horribles marches all too easily,” he wrote. “If it is within the scope of regulating commerce to set a minimum wage, one might argue, then Congress could set the minimum wage at $500 an hour. Would that force us to conclude that Congress therefore cannot set any minimum wage at all? Were Congress to legislate the extreme hypotheticals envisioned by those bringing these challenges, there will be ample constitutional doctrines available for the judiciary to use for the imposition of limits.”

    David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, also dispatched the slippery slope argument in a recent op-ed for The Indianapolis Star.

    “Today Congress requires us to buy insurance for the good of our health. Tomorrow, Congress might require us to buy broccoli for the good of our health or a General Motors car for the good of our economy,” Orentlicher wrote. “We would begin to slide down the slippery slope of officious government and hit bottom at the ultimate nanny state.

    “Nothing could be further from the truth,” he continued. “It has been seven decades since the Supreme Court recognized the power of Congress to regulate the way we spend our dollars.”

    In those decades, Orentlicher noted, Congress has never adopted such far-fetched mandates, like the one Will says could be coming if the high court upholds the constitutionality of the ACA’s minimum coverage provision. The liberty interests protected by the Constitution have prevented such mandates, and so has the political process. Orentlicher provides a lengthier defense of the minimum coverage provision for the University of Southern California law Review.

    During a panel discussion on the ability of the federal government to address national problems at the 2011 ACS National Convention, Dellinger also blasted right-wingers for bemoaning the minimum coverage provision, especially since they are typically the same bunch that celebrates government efforts to force women to wait lengthy periods for abortions or to listen to tired lectures about alternatives to abortion.

    Dellinger said, “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scriptured lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

  • June 23, 2011

    Despite claims about unprecedented intrusion on liberty, the litigation over the landmark health care reform law is really an “effort to change existing doctrine to have courts create and impose a new limitation on Congress’s ability to deal with major national economic problems,” said Indiana University law professor Dawn Johnsen during a plenary panel discussion at the ACS 10th Anniversary National Convention. She added that ultimately this effort to fundamentally change law surrounding commerce clause authority should remind us of the importance of judicial nominations.

    Since 1937, Johnsen, a member of the ACS Board, noted that the Supreme Court has almost always upheld Congress’s authority to enact laws regulating economic concerns. There have been only a few cases in recent time where the high court has invalidated laws as falling beyond Congress’s power to regulate commerce, she said. But the narrow majority in those cases expressed concern that the acts in question were too far afield from regulation of economic concerns. The Affordable Care Act (ACA), however, certainly deals with regulation of a major part of our economy, Johnsen concluded.  

    Randy E. Barnett, professor of law at Georgetown University Law Center, and a critic of the minimum coverage provision, told the audience, to laughter and applause, that the bill it got was one it really didn’t want and was actually a payoff to the insurance companies so they would not oppose the bill. Under current court doctrine, Barnett said, extending Medicare to everyone or having a single-payer plan would be constitutional.

    Walther E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, said without the minimum coverage provision, the ACA could not guarantee that health insurance coverage would be available to those with pre-existing conditions. He maintained that even if the minimum coverage provision were not supported by Congress’s powers to regulate commerce or to tax and spend, it is within Congress’s authority to create laws necessary and proper in carrying out its constitutional powers.

    Dellinger also took on the Right’s frequent argument that the ACA represents an unprecedented government intrusion into health care.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” he said. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods [for abortions], government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Video of the full panel discussion is available here or by clicking on image below.

  • March 22, 2011

    This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.


    One year after the passage of the Affordable Care Act, opponents who question the law's constitutionality are still sounding unwarranted alarm bells that regulatory floodgates will open if this law is upheld in court, much as they have when other landmark laws were passed, former acting Solicitor General Walter Dellinger said during an ACS phone briefing today on legal challenges to the health care law.

    "The attacks on [the law] are exactly like the attacks on Social Security and the minimum wage law, where it was said that if the retirement age could be set by congress at 65 it could be set at 25. It was said that if Congress could set the minimum wage at $5 it could set min wage at $5,000," said Dellinger, chair of the appellate practice at O'Melveny & Myers. "The court in upholding the Social Security Act and the minimum wage laws made light of those arguments and so should they here."

    Dellinger, echoing comments he made during a recent panel discussion on the Affordable Care Act, said whether the landmark health care law is constitutional "is not a close question."

    "I don't think that people are going to be sitting around on the court wringing their hands waiting to see what Justice Kennedy thinks. I believe that Chief Justice Roberts will be in the majority and that he will decide the opinion himself," Dellinger said.

    During the 30-minute national call, Dellinger explained how the conversation about the legal challenges has been shaped by "really a few libertarians" and took questions from others on the call.

    Listen to the call here.