The Supreme Court finished its session on Monday, ending a term filled with landmark decisions regarding fair housing, marriage equality, and healthcare.
On Wednesday, PFAW hosted a telebriefing for members about the end of the Court’s term and the implications of several cases. PFAW Communications Director Drew Courtney moderated a dialogue among PFAW Senior Fellows Elliot Mincberg and Jamie Raskin, Right Wing Watch researcher Miranda Blue, and PFAW Executive Vice President for Policy and Program Marge Baker.
Raskin covered Obergefell v. Hodges and Arizona State Legislature v. Arizona Independent Redistricting Commission. He first noted that Obergefell would not be possible without the “many decades of intense social struggle and millions of people coming out of the closet” which created a momentous societal shift in public opinion of LGBT rights. The Arizona case, which effectively obstructed state legislature’s gerrymandering efforts, was also a huge triumph for democracy, because, as Raskin notes, “the whole point of democracy is that power begins and resides with people.”
Mincberg discussed King v. Burwell as well as Texas Department of Housing and Community Affairs v. The Inclusive Communities Project—two cases that, according to Mincberg, represent “attempts by the far right to push legal theories that had been rejected by the lower courts over and over again.” The fair rulings in both cases have led many analysts to assume an overall shift left in the Court; however, Mincberg asserts that their inclusion on the docket in the first place contradicts this assumption.
Finally, Blue reviewed reactions from the Religious Right regarding the marriage decision from this session. Presidential candidates and conservative pundits alike have voiced their disapproval of the decision, with responses ranging from terrorist attack predictions to calls for a revolution. “This is a defining moment for the Religious Right,” said Blue. “It’s a test of whether the movement can survive into the future as it exists now.”
At the end of the briefing, Courtney asked the panelists about the next session of the court, including a union case, Friedrichs v. California Teachers Association, that was recently added to the docket. Raskin labeled the case as “the new wedge to destroy unions,” and another GOP attempt to use legal doctrine to undermine progressive initiatives like public sector unions.
Listen to the full briefing here:
People For the American Way Action Fund today announced its endorsements of a slate of young progressive candidates running for the Michigan State Legislature. The endorsees include a diverse mix of 35-and-younger candidates running for the Michigan state House of Representatives and state Senate, representing a new generation of progressive leaders who will put Michigan’s legislature back-on-track towards a common sense, inclusive, accountable public policy agenda for the state’s future. Their leadership represents a progressive vision that will benefit all Michiganders as they fight for social, economic, environmental justice and equality for all.
The endorsements are part of People For the American Way Action Fund’s Young Elected Progressives (YEP) program. YEP evaluates and endorses young progressive candidates age 35-and-younger in their bids for elected office around the U.S. at all levels.
People For the American Way Action Fund is proud to endorse these Michigan YEP candidates for 2014:
Stephanie Chang – MI House District 6
Running for Michigan’s House of Representatives District 6, Stephanie Chang is a Michigander whose dedication to the community has benefited many. Chang has worked around the state advocating for Affirmative Action, serving as a mentor for Detroit Asian Youth Project, and promoting a fair justice system. Chang’s knowledge and breadth of experience in Michigan make her an important leader for the state as she fights for social, economic, and environmental justice. Visit Stephanie’s page for more details.
Jon Hoadley – MI House District 60
Jon Hoadley is the clear choice to represent Michigan’s 60th District in the state House of Representatives. Hoadley, a small business owner and member of several advocacy organizations in Kalamazoo, is deeply ingrained and in tune with the needs of his community, which makes him the ideal representative. He has already worked to better Kalamazoo advocating for full LGBTQ equality, creating strong and sustainable public schools, and protecting the environment. Visit Jon’s page for more details.
David Knezek – MI Senate District 5
David Knezek is running for Michigan state Senate’s 5th District and has proven that he is the ideal candidate for the position. Knezek is a true leader, having been promoted to the rank of Sergeant during his time in the U.S. Marine Corps. At the University of Michigan-Dearborn, he was elected Student Government President, and in his senior year of college he was elected to be a Michigan state representative. Knezek has proven that he will advocate for his community and improve education, public safety, and job opportunities for Michigan citizens. Visit David’s page for more details.
Kristy Pagan – MI House District 21
Born and bred in Michigan, Kristy Pagan is the ideal candidate for the 21st District of Michigan’s state House of Representatives. She has worked in Washington, D.C. as a legislative aide and a national grassroots organizer. Her determination to serve coupled with her knowledge of and dedication to Michigan will serve the state well. Pagan is a true progressive, and has both the resolve and the passion to reform Michigan’s educational system, advocate for women and children, and improve job growth. Visit Kristy's page for more details.
Rebecca Thompson – MI District 1
Rebecca Thompson is running for election to the 1st District of the Michigan state House of Representatives. Thompson was born and raised in Detroit, and overcame experiences with poverty and homelessness to become a leader in the community. She has worked tirelessly to better Detroit for everyone, using her own experiences to positively impact those around her. Thompson is passionate about affordable education, improving safety, protecting women’s rights, and advocating for her community. Visit Rebecca's page for more details.
Robert Wittenberg – MI House District 27
Robert Wittenberg is running to represent District 27 in the Michigan state House of Representatives. After being inspired by his parents’ and brothers’ work, he is determined to follow in their footsteps and serve his community. As a public servant, he advocates for full equality for the LGBTQ community, increased public transportation, and access to healthcare for all. Visit Robert's page for more details.
To no one's surprise, the United States Conference of Catholic Bishops has rejected President Obama's compromise that respects both the rights of women to contraception and the religious liberty of employers who are affiliated with religious organizations opposed to birth control. Under the compromise, church-affiliated organizations will not be paying for contraception, and insurance carriers will bear the cost of providing it to women without a co-pay or deductible. The Catholic Health Association and Catholic Charities quickly announced that their concerns had been addressed, and that their religious liberty would not be impaired by the modified rules. Some Republicans such as Sens. Susan Collins and Olympia Snowe are similarly satisfied.
Yet the Conference of Catholic Bishops, as well as Republican congressional leaders and presidential candidates, are declaring that the compromise is part of a larger war against religious liberty. Senate Republicans are even suggesting that the birth control coverage requirement threatens the religious liberty of employers completely unconnected to religious organizations. But since these forces have so often similarly and wrongly categorized many government policies they disagree with, it is hard to take the claim seriously.
Religious liberty is one of the core protections of the United States Constitution, one whose importance cannot be overstated. And there are times when it may be proper to allow certain religious-based exemptions from generally applicable laws, such as conscientious objector status in a military context. But those are the exceptions, not the rule: We generally do not give people the right to be exempt from laws they disapprove of simply because their disapproval is religiously based.
In the current debate over health insurance, the Conference of Catholic Bishops and its partners use the language of universal religious liberty. But their February 10 news release explaining why they oppose the coverage requirement makes clear that they are making this claim only for the religious liberty of people who share their specific religious beliefs about contraception and abortion:
First, we objected to the rule forcing private health plans — nationwide, by the stroke of a bureaucrat's pen—to cover sterilization and contraception, including drugs that may cause abortion. ...
Second, we explained that the mandate would impose a burden of unprecedented reach and severity on the consciences of those who consider such "services" immoral: insurers forced to write policies including this coverage; employers and schools forced to sponsor and subsidize the coverage; and individual employees and students forced to pay premiums for the coverage. We therefore urged HHS, if it insisted on keeping the mandate, to provide a conscience exemption for all of these stakeholders—not just the extremely small subset of "religious employers" that HHS proposed to exempt initially.
Their statement was notably silent about conscience protections for other religious beliefs. They have not been talking about the right of employers from denominations that generally reject modern medical intervention to not provide their employees health insurance at all. Matthew Yglesias asked in a blog post this week if they would rush to the defense of an employer named Abdul Hussain who refused on religious reasons to offer employees health insurance that lets employees visit doctors of the opposite sex. If you really thought the principle of religious liberty was at stake, would you be satisfied with a fix that addresses only your religious beliefs but ignores everyone else's?
Whether it's contraception, marriage equality, or abortion, "religious liberty" has too often been used as a feint to disguise an aggressive demand for special rights. Specifically, the radical right regularly demands exemptions for conservative Christians and those who share their beliefs from laws they don't like.
Even when they promote "conscience" legislation with broad language that seems to be applicable to all religious beliefs, their selectivity in demanding such laws is telling. For instance, the "conscience" provisions in marriage equality legislation are generally expressed in general terms not specific to gays and lesbians' marriages, but those provisions are only inserted into state law when gays and lesbians are finally allowed to marry. Such provisions were being pushed last year in Maryland, for instance, but when the marriage equality bill failed to pass, self-proclaimed religious liberty proponents on the right made no effort to adopt the conscience provisions that would then have only affected opposite-sex married couples. Nor are right-wing groups loudly demanding such religious liberty provisions in states with DOMA-style laws like Texas, Oklahoma, and Utah. In states like these, where marriage rights for same-sex couples are foreclosed, the right is not demanding the type of "conscience" provisions for groups not providing services to married couples that they demand in states where gays can marry. In cases like these, what they claim is a general religious liberty protection is clearly designed to hurt one group and one group only.
Consider the irony of right-wing groups who crusade against what they call "special rights" for LGBT people demanding statutory exemptions solely for their own particular religious beliefs. Can there be a better example of demanding "special rights?"
This morning, the Supreme Court granted review to three cases involving challenges to the Affordable Care Act. As a result, the political conversation on the American people's ability to address national issues via congressional legislation will be paralleled by a legal conversation at the nation's highest court.
The Court will address several specific legal issues:
SCOTUSBlog notes the significant amount of time the Court will be devoting to this issue:
The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours. The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments. (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)
It is worth remembering that the individual mandate was a Republican idea. Their opposition to it today has nothing to do with constitutional principle, and everything to do with damaging President Obama politically and sabotaging the American people’s ability to effectively address national problems through national solutions.
In an opinion written by conservative Judge Laurence Silberman, a three-judge panel of the U.S. Court of Appeals for the DC Circuit Court today upheld the individual mandate of the Affordable Care Act. In a carefully considered 2-1 opinion, the court rejected the argument that Congress lacks authority under the Commerce Clause to require Americans to purchase health insurance. Judge Silberman's opinion points out just how extreme the right wing's arguments against the law are. (The dissent was based on jurisdiction, rather than the merits of the case.)
The parties challenging the ACA argued that Congress's authority under the Commerce Clause is limited to people who are actively engaged in an economic activity. Thus, they say, Congress cannot require people to purchase health insurance. Although the Right Wing presents this argument as a conservative return to the original intent of the Framers, Judge Silberman recognizes that it is anything but:
Nothing in the text of the Constitution or relevant case law supports this constricted vision of congressional authority under the Commerce Clause. As Judge Silberman writes:
The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument.
People For the American Way Foundation Senior Fellow Jamie Raskin has written that "the conservative arguments assailing the individual mandate seem paper-thin from the standpoint of constitutional text, history, precedent and doctrine." Or, as the DC Circuit stated today:
The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.
The constitutional attack against the Affordable Care Act is part of the Far Right's larger efforts to peddle the idea that Americans are powerless to impose reasonable limits on large corporations and hold them accountable when they do wrong. They will not be happy with today's dose of reality from Judge Silberman and the DC Circuit.
In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.
One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.
In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”
Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.
Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.
Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.
Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.
The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.
The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.
It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.
More and more Americans are fed up with freshman Senator Ron Johnson's single-handedly blocking the Senate from even considering the nomination of Victoria Nourse to Seventh Circuit Court of Appeals. Yesterday, the Milwaukee Journal-Sentinel reported that:
Johnson's decision to block the judicial nomination of a University of Wisconsin law professor has drawn a pointed letter of protest from a group of legal academics around the country.
Johnson has singlehandedly held up consideration of Victoria Nourse for the Seventh Circuit Court of Appeals, which reviews federal cases from Wisconsin, Illinois and Indiana.
"For a single senator from one state within the Circuit to assert a hold, months after the nomination was complete, undermines Wisconsin's merit-based selection system, blocking highly qualified nominees from a hearing and a vote," reads the letter to Senate Judiciary Chairman Patrick Leahy of Vermont and the panel's top Republican, Charles Grassley of Iowa. "The effect is an unbreakable one-person filibuster."
The professors say a "a nominee of sterling credentials who has served under both Republicans and Democrats" should not be subject to "unending delay." You can click here to see the letter and its 53 signatories, some of whom served under Republican presidents.
Indeed, the letter shows Nourse's support across the ideological spectrum. In addition to progressive legal scholars, signers also include conservatives like Randy Barnett (a senior fellow at the Cato Institute who has challenged the constitutionality of the healthcare reform law) and David Bernstein (author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform). The signers also include ten scholars from Wisconsin law schools. All agree that Nourse would make an excellent judge.
Nourse was originally nominated by President Obama more than a year ago after consultation with Wisconsin's two senators. Unfortunately, because of the unprecedented obstruction of qualified judicial nominees by Senate Republicans, Nourse was among the dozens of nominees who the Senate was prevented from considering before 2010 came to an end. President Obama renominated her in January, with the new Congress that now includes newly elected Senator Ron Johnson.
Johnson complains he should have been consulted before the renomination even though the appropriate consultation with Wisconsin's senators occurred when Nourse was originally nominated. Other states with new Republican senators have faced the same situation with the re-nominations of judicial nominees who were originally nominated last year. In every case but Wisconsin, the new Republican senator has allowed the nomination to go forward. Only Senator Johnson has refused.
In a win for the millions of Americans who are set to receive health insurance through last year's healthcare reform law, the 6th Circuit Court of Appeals has ruled the Patient Protection and Affordable Care Act constitutional. The full ruling can be read here.
The ruling comes in one of several challenges to the healthcare reform law being floated by Tea Party-affiliated groups and Republican attorneys general. (This particular challenge comes from the right-wing Thomas More Law Center.) The groups all challenge the law’s individual mandate, an idea first proposed by conservative groups as an acceptable method of ensuring universal healthcare. The appeals court found that the individual mandate is well within the reach of the Constitution’s Commerce Clause, which allows Congress to regulate commerce between the states.
The 6th Circuit is the first federal appellate court to rule on the healthcare reform law, and it has been called one of the more conservative benches. Judge Jeffery Sutton, a George W. Bush nominee and former Scalia clerk, wrote a concurring opinion upholding the constitutionality of the Affordable Care Act. His concurrence offers a detailed and extremely respectful analysis – and rejection – of the claims that the law violates the Constitution because it compels people to purchase a product. He has been called “one of the nation’s leading advocates for conservative states-rights positions” yet, in addition to rejecting the Commerce Clause argument, he also gave short shrift to More’s Tenth Amendment argument.
From the court’s decision:
By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance
The ACA is clearly constitutional, but the fight is far from over. Despite the fact that this case has one of the nations’ leading conservatives ruling for the constitutionality of the ACA, there are more constitutional challenges still making their way through the courts.