• March 24, 2017

    *This piece originally appeared on Balkinization.

    by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair, Professor of Government, University of Texas at Austin School of Law

    Let me say at the outset that I strongly support filibustering the nomination of Judge Gorsuch to join the Supreme Court. Part of the reason is that I regard his appointment as filling a "stolen seat."  Part of it is that I thought his "answers" were remarkably non-enlightening. No one who is a serious originalist can possibly give as much primacy to precedent as he was pretending to do. And "pretending" is the operative word, since it is inconceivable that he will not vote to reverse a number of important cases. After all, his endorsement of Harlan's dissent in Plessy is a dog whistle for invalidating any and all affirmative action programs in the name of "color-blindness." And, given the awful reality of lifetime tenure, I do not support putting a 49-year-old ultra right-winger on the Court. Finally, there is the matter of the legitimacy of Donald Trump as president, not with regard only to his being a sociopath or to the operation of the idiotic electoral college, but with regard to the increasing likelihood that his minions were actively working with Russia to throw the election, in part because Trump himself is deeply in hock to Russian oligarchs (given that no self-respecting American bank would lend any money to such a con-man who so obviously does not believe in paying his debts).  

  • March 24, 2017
    Guest Post

    by Jeremy Leaming, Director of Communications, National Health Law Program

    Despite growing public opposition to the so-called American Health Care Act (AHCA), House Republicans are striving to unite behind the bill that includes provisions that not only repeal the Affordable Care Act, but gut Medicaid, shifting health care costs to state governments and cutting off health care coverage to tens of millions of Americans. At this moment the measure is still being tweaked to please hardcore conservatives whose only agenda is to kill entitlement programs and pass laws that coddle the wealthy.

    In the House, the Tea Party faction called the Freedom Caucus, has been agitating for a full repeal of the ACA, including its Medicaid expansion. Although the faction appears to be balking at these efforts, it seems safe to assume that House Republicans will eventually unite behind this atrocity. If by chance the bill would die in the House or languish in the Senate, Politico’s Dan Diamond notes that the Trump administration will continue to do serious damage to the ACA.

    Increasingly the media and public have caught on to the fact that House Republicans are seeking more than just a repeal of the President Obama’s landmark health care reform law – one that has brought health care coverage to more than 20 million Americans and dropped uninsured rates to the lowest in 50 years. The AHCA includes provisions that would end Medicaid as we know it. The National Health Law Program, which has defended Medicaid for almost 50 years, has provided numerous reports on the provisions in AHCA that would affect Medicaid. For example AHCA envisions ending Medicaid as an entitlement program by slashing its federal funding either with per capita caps or block grants. Mara Youdelman, managing attorney of NHeLP’s DC office, explains how per capita caps would shift health care costs to states, forcing them to cut health services and/or limit those who are eligible for Medicaid. Republicans argue that these provisions are intended to give state’s more “flexibility” in how they provide health care to low-income individuals in their states. But with far less federal funding, states will not have a lot of options – either find ways to pay for quality health care services or cut services. Many states – led by conservative lawmakers – will opt for cutting health care services.

  • March 23, 2017
    Guest Post

    by Mark S. Kende, Director of the Drake Constitutional Law Center, James Madison Chair in Constitutional Law

    Judge Neil Gorsuch finished testifying yesterday so today was made up of testimony by surrogates and opponents. Perhaps most significantly, Democratic Sen. Chuck Schumer is urging his party to filibuster the nomination. Sen. Chuck Grassley, Republican Chair of the Judiciary Committee has labeled this a smoke screen. What would be the consequences of such an action and would it be wise?

    Historically, the filibuster is most famous for being used by senators from the South seeking to block civil rights legislation. Thus it would be ironic to see the more liberal party employ this tactic. Moreover, the filibuster is a very rare specimen in the Supreme Court context. One of the only other examples was a Senate filibuster in 1968 regarding the nomination of Justice Abe Fortas to be Chief Justice, which was based on ethics concerns and political bias.

    But despite its rarity, a Democratic filibuster is completely justified by the outrageous refusal of the Republicans even to give President Obama’s nominee, the very distinguished Chief Judge Merrick Garland, a hearing. By contrast, the Democrats have shown Judge Gorsuch a huge courtesy, not shown to their nominee, in treating Gorsuch fairly and giving him extensive hearings. The Democrats have set an example of how not to be hyper-partisan and immoral. And yet Republicans still have had the chutzpa to say that a filibuster would be obstructionist. The Republicans even stole one of President Obama’s most basic executive powers from him (selecting a potential justice who would receive a fair hearing), and gave pretextual reasons for doing so. That is not just obstructionist, it was contrary to the Constitution.    

    Admittedly, a filibuster may be largely symbolic. If the Democrats keep the Republicans from obtaining 60 votes, Republican leader Mitch McConnell has said he will ensure a change in Senate rules, so that only 50 votes will be needed for Judge Gorsuch to take office. This is typical of the new Trump era -- if the Republicans are losing, they simply change the rules of the game. This may be comprehensible as raw politics, but it is shameful when the fate of the Supreme Court and the rule of law itself is at stake. 

  • March 23, 2017
    Guest Post

    *This blog post was originally testimony before the Committee on the Judiciary of the United States Senate, Hearings on the Nomination of Judge Neil Gorsuch to the Supreme Court of the United States on March 23, 2017.

    by William P. Marshall, Kenan Professor of Law, the University of North Carolina, Chapel Hill

    The Air Force is unconstitutional. Brown v. Board of Education, 348 U.S. 886 (1954), was incorrectly decided. The Equal Protection Clause does not apply to women. The First Amendment does not protect speech on the internet or prevent persons from being forced to salute the flag when it conflicts with their conscientious or religious principles. The Constitution does not require one person/one vote. There is no freedom from government intrusion into such deeply personal decisions as to whether or not to have a child. There is no right to direct the raising and educating of one’s own children. The Fifth Amendment does not require the police to inform persons charged with crimes that they have a right to counsel. The federal government may discriminate on the basis of race and ethnicity without constitutional constraint.

    These are just some of the results to which a strict adherence to “originalism” would lead. The vacancy created by the death of Justice Antonin Scalia, the Court’s most prominent proponent of organism, and the subsequent nomination of Judge Neil Gorsuch to fill that position, has once again brought the theory of “originalism” into the spotlight. It is therefore appropriate to reexamine the validity and legitimacy of originalism as a governing mode of constitutional interpretation. I will address that issue in the remarks that follow.

  • March 23, 2017
    Guest Post

    by Nicole Huberfeld, Associate Dean of Academic Affairs and Ashland-Spears Distinguished Research Professor of Law, University of Kentucky College of Law and  Jessica L. Roberts, Associate Professor, George Butler Research Professor of Law Director, Health Law & Policy Institute, The University of Houston Law Center

    If you are born in the United States and live long enough, chances are good you will be a Medicaid beneficiary at some point in your life. 

    Despite Medicaid’s ubiquity, the electorate’s sense of separation from the nation’s largest health insurance program contributes to its political fragility, as evidenced by the proposal to severely limit federal Medicaid spending in the Republican bill called the American Health Care Act.  This bill significantly limits federal funding for Medicaid, as reflected in the CBO Report issued Monday evening, which estimates that 24 million people will lose health insurance coverage under the Republican plan but that the federal government will save hundreds of billions of dollars from modifications to Medicaid and limitations on tax subsidies currently available for purchasing private insurance. Such federal spending cuts would have real and detrimental impact on the lives of all Americans, whether they realize it or not.

    Before federal health insurance programs existed, the poor were assisted by state-based medical welfare programs, but by the 1950’s, states could not pay for everyone who needed medical care.  The elderly and their families, as well as the non-elderly poor, were bankrupted by their encounters with medicine, and state safety nets often failed for unsteady political support and constant budgetary shortfalls. The elderly lobbied effectively for federalized insurance, resulting in Medicare’s passage in 1965. Medicaid, however, was enacted with generous federal funding but left to the states for administering.  As a result, for its first forty-nine years Medicaid only protected poor Americans who were deemed “deserving” under standards rooted in colonial values, meaning children and pregnant, blind, disabled, elderly or medically indigent adults.  Under the ACA (or “Obamacare”), Medicaid became available to anyone who financially qualifies, including all Americans in health insurance coverage so that they were no longer subject to the physical and economic insecurity of inconsistent health care access. Medicaid became a de facto form of social insurance.