The United States Court of Appeal for the Ninth Circuit today affirmed the judgment of a federal trial court in striking down California’s same-sex marriage ban “Prop 8″. Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7, 2012).
But the court refrained from deciding the broader question as to whether the Constitution requires that marriage be open to gay and lesbian couples.
Instead, the court decided the more narrow question whether Prop 8 violated equal protection of the law under the Fourteenth Amendment to the Constitution.
Under the Equal Protection Clause, a law that distinguishes people into different categories must have a rational basis to a legitimate government purpose.
In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court held that a law that serves only to discriminate against disfavored groups was not a legitimate use of state power. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633.
Romer involved an amendment to the Colorado Constitution that prohibited the state from enacting laws to prohibit discrimination against gays and lesbians. The Supreme Court struck down the amendment.
The Ninth Circuit relied on Romer in striking down Prop 8. ”The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”
Prior to Prop 8, the California Supreme Court had recognized that marriage was a fundamental right possessed by all Californias, straight or gay. Accordingly, when Prop 8 was passed, it put in place a new rule of constitutional law, the only effect of which was to deprive a targeted minority of rights they had possessed.
The Ninth Circuit looked at the four possible reasons offered for the legitimacy of Prop 8: (1) furthering an interest in childrearing and “responsible procreation”; (1) proceeding with caution in changing the institution of marriage; (3) protecting religious freedoms and (4) preventing children from being taught about same-sex marriage in schools. None of these goals were actually met by Prop 8, and could not act as a rational basis for the law.
In fact, the only effect of Prop 8 was to “withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of societal status that affords dignity to those relationships.” The effect of Prop 8 is “so far removed from these particular justifications that we find it impossible to credit them.”
The Court had the opportunity to discuss whether the Due Process Clause of the 14th Amendment to the Constitution provided a “fundamental right to marry” to which gay and lesbian couples were entitled.
It declined to do so, however, since its analysis only hinged on the purpose of Prop 8. “We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further we express no view on those questions.”
Last week, the United States Court of Appeal for the Fourth Circuit (which hears appeals from Maryland, the Carolinas and Virginia) dismissed a civil case brought by Jose Padilla against Donald Rumsfeld and other Bush-era officials for alleged violations of law taking place after 9/11. Lebron v. Rumsfeld, No. 11-6480 (4th Cir. Jan. 23, 2012).
Padilla, an American citizen, was labelled an “enemy combatant” by President George W. Bush and indefinitely detained for close to four years without trial until he was transferred into civilian custody in early 2006.
Padilla sued Rumsfeld and other officials for violating his constitutional rights, specifically:
Denying Padilla his right to counsel under the First, Fifth and Sixth Amendments;
Denying Padilla his right to access a court under Article III of the Constitution, the First and Fifth Amendments, and the Habeas Corpus Suspension Clause;
Subjecting Padilla to cruel conditions of confinement in violation of the Fifth and Eighth Amendments;
Subjecting Padilla to coercive interrogations (torture) in violation of the Fifth and Eighth Amendments;
Denying Padilla his freedom of religion under the First Amendment and the Religious Freedom Restoration Act;
Denying Padilla access to information protected by the First Amendment;
Denying Padilla his freedom of association under the First Amendment; and
Denying Padilla due process protected by the Fifth Amendment.
In a surprisingly broad decision, the Fourth Circuit dismissed Padilla’s claims because of concerns of interfering with “military affairs,” which the court stated were the purview of Congress and the President as Commander in Chief. (Slip op., at 14-15.)
In the court’s view, Congress gave the President the ability to label American citizens “enemy combatants” in 2001, when it passed the Authorization of Use of Military Force after the 9/11 attacks.
Allowing Padilla to seek money damages for past constitutional wrongs would bring judicial review into “sensitive military decisions” made by the executive branch, which might burden future executives with the prospect of “civil litigation and potential personal liability.” (Slip. op, at 20.)
The court also expressed hesitation about interrupting the “established chains of military command” and “military intelligence” by permitting the suit to proceed. (Slip. op., at 22-23.)
The court surmised that people who wish to fight their enemy combatant status can do so through a habeas corpus proceeding. The fact that it took the Government almost four years to charge Padilla — an American citizen — with any type of crime did not affect the court’s calculus. (Slip op., at 17-18.)
The court also dismissed two related causes of action made by Padilla under the Religious Freedom Restoration Act and for declaratory relief. ”Claims implicating national security and war powers flash caution signals all their own. Courts have long been reluctant to interpret statutes in ways that allow litigants to interfere with the mission of our nation’s military, preferring that Congress explicitly authorize suits that implicate the command decisions of those charged with our national defense.”
The effect of Lebron is that American citizens who may be innocently caught up in the paranoia of contemporary terrorism policy may be prevented from seeking monetary damages against the people who deprive them of their rights.
This “military affairs” exception to civil rights law is highly suspect, particularly in light of the fact that Padilla was seeking redress against the chief architects of his detention — people such as Donald Rumsfeld — and not the soldier at the bottom of the chain-of-command just following orders.
Shielding so-called “military decisions” from civil liability creates a perverse incentive for policymakers to claim a military logic to any decision that implicates constitutional rights in order to avoid future judicial inquiry.
If there’s any question that a policy is unconstitutional, just call it a “military decision” and the courts will stay out.
The Fourth Circuit has effectively said: “We will not review decisions made by Congress or the President that relate to military affairs.”
In an era when the line between military and civil domains continues to weaken and blur, the Fourth Circuit risks losing oversight of these political branches in chief areas of government activity.
By attempting to respect “checks-and-balances,” the Fourth Circuit may have done the exact opposite.
The United States Supreme Court has unanimously held that police officers need a warrant before they can monitor an individual with a GPS tracking device. United States v. Jones, No. 10-1259, 565 U. S. ____ (2012).
The decision provides cautious optimism of renewed concern by the Supreme Court for 4th Amendment protections in the digital age.
In Jones, federal agents placed a GPS tracker under the Jeep of a DC nightclub operator who had suspected involvement in narcotics trafficking. The agents tracked the jeep for 28 days and generated over 2,000 pages of geo-location data.
Eventually the federal government indicted Jones. He moved to throw out the GPS data as the fruit of an unconstitutional search.
All nine justices agreed the use of a GPS tracker without a warrant was unconstitutional, but they disagreed why it was unconstitutional.
Writing for five of his colleagues, Justice Scalia argued the search was unconstitutional because “the Government physically occupied private property for the purpose of obtaining information.” Such a “trespass” on property, combined with the search for information, would have been a search at the time the Fourth Amendment was adopted in the 18th century. Accordingly, the placing of a GPS tracker under a private vehicle for the purposes of gathering investigative data similarly required a warrant.
Justice Scalia acknowledged that his “property-based” analysis was an older approach to the Fourth Amendment, predating the modern test formulated in the 1967 case United States v. Katz.
Under Katz, a court ignores issues of property rights and instead examines an individual’s “reasonable expectations of privacy” in determining the appropriateness of Fourth Amendment guarantees. Justice Scalia argued that Katz augmented, but did not fully replace, the older property-rights based approach.
Four other justices agreed that the GPS tracking at issue was unconstitutional but disagreed with Justice Scalia’s reliance on a property-based approach to 4th Amendment protection. Writing for the concurrence, Justice Alito wrote that the Katz test remained the exclusive method of determining 4th Amendment protection.
Under Katz, Justice Alito concluded that “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.” The 4 weeks of monitoring was long enough to require a warrant.
In a third concurrence, Justice Sotomayor wondered out loud whether current Fourth Amendment jurisprudence can make sense of future technological developments.
This is an excellent question.
Neither test employed by the Court is well prepared for intricate technological fact patterns that are sure to emerge in the coming years.
In an age when people will be able to integrate communications technologies seamlessly into their lives — or even into their bodies — it is clear that modern societies may rest on fundamentally different assumptions than those that existed in 1789.
At some point, law will need to change to reflect this new reality. The real issues will be: (1) who will make those changes — nine justices? Congress? the states? — and (2) whether privacy is buttressed or sacrificed as a result.
Comar Law is proud to post a brief recently filed on behalf of a defendant convicted under California’s concealed “dirk and dagger” law (Cal. Pen. Code sec 12020(a)(4)).
In an appellate filing filed on October 5, 2011, Comar Law argued to California’s Second Appellate District that the law violated the Second and Fourteenth Amendments to the United States Constitution.
The State of California has until early November to respond.
Comar Law will post any published decision issued by the Second Appellate District.
The English Bill of Rights of 1689 similarly provided, “[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”
In the Declaration of Independence, the Framers highlighted the infringement of their right to participate as a reason for the Revolution: ”In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
In the United States, the right to participate finds life in the First Amendment.
The First Amendment protects the rights of (i) free speech, (ii) assembly, and (iii) the right to petition.
And in California, these rights are afforded a separate guarantee by the California Constitution, which protects the rights of Californians to “freely speak . . . on all subjects,” “petition government for redress of grievances, and assemble freely to consult for the common good.”
A significant threat to public participation comes about through so-called “SLAPP” suits — “SLAPP” standing for “strategic lawsuit against public participation.”
For example: someone who publishes an article in a newspaper and then is sued over that article confronts a SLAPP suit, as expressing an opinion in public — free speech — is a constitutionally protected right.
Someone who mounts a vigorous defense in a court proceeding and then is sued over that conduct confronts a SLAPP suit, as the petitioning of a court — the right of redress — is a constitutionally protected right.
SLAPP suits are concerning for a variety of reasons, but one of the most troubling aspects is that it is usually the stronger and more financially capable party that brings the SLAPP suit. The defendant facing a SLAPP suit may be compelled to settle to make the headache go away and avoid the burden of trial.
Fortunately, California law provides an important mechanism for dealing with SLAPP suits: the “anti-SLAPP” law, codified at Cal. Civ. Proc. Code § 425.16.
The anti-SLAPP law permits a defendant to strike a lawsuit at the very beginning of the lawsuit — within 60 days of service of the complaint — by forcing a plaintiff to show to the court that the lawsuit is meritorious.
These are classic SLAPP fact patterns:
In 1996, after several rounds of appeals, the Church of Scientology sought to set aside a $2.5 million judgment that had been awarded to Lawrence Wollersheim, a former member of the Church who was awarded general and punitive damages for intentional infliction of emotional distress. In response to the Church’s new lawsuit, Wollersheim filed an anti-SLAPP motion, arguing that the Church was seeking to punish him because of his right to petition the courts for redress. The Court of Appeals for the Second District agreed, writing that the Church had employed “every means, regardless of merit, to frustrate or undermine Wollersheim’s petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents’ right to utilize the courts to seek legal redress, the trial court may properly apply [the anti-SLAPP statute].” The court then struck the Church’s lawsuit. Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996).
Jay Leno and NBC were sued in 2006 for defamation and intentional infliction of emotional distress by an egg donor who was the subject of joke by Leno on his “Headlines” routine. In response, Leno and NBC filed an anti-SLAPP motion, arguing that no reasonable person would have taken the joke to be factual or defamatory. The court agreed and struck the plaintiff’s lawsuit. Drake v. Leno, 34 Med.L.Rptr. 2510 (2006).
If you are a defendant facing a lawsuit based on activity that is protected by the California or federal Constitutions — in particular, speaking freely or accessing the courts — you may be entitled to end the lawsuit under the anti-SLAPP law.
In Heller, the Supreme Court explicitly held for the first time that the right to keep and bear arms is a a “right” that is “exercised individually and belongs to all Americans.” (District of Columbia v. Heller (2008) 128 S. Ct. 2783, 2791.)
The Supreme Court also took the opportunity to define “arms” as “weapons of offence, or armour of defence,” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” (Id. at 2791.)
To “keep arms” refers to a “common way of referring to possessing arms”; and to “bear arms” refers “to the carrying of weapons outside of an organized militia.” (Id. at 2792-93.)
Because the right to keep and bear arms is an individual right, the Supreme Court struck down Washington D.C.’s total ban on the possession of handguns as an infringement of that right:
“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.” (Id. at 2817-2818.)
Two years later, in McDonald v. Chicago, the Supreme Court expanded this guarantee against the American states. As such, a near-total hand gun ban enacted by Chicago was unconstitutional.
What should someone make of all of this?
My own views on the Second Amendment have shifted significantly over the last several years.
I used to think that the protections of the Second Amendment were an anachronism, akin to the Third Amendment’s guarantee against the quartering of soldiers — a holdover from an earlier day when people distrusted each other, had little government and relied on firearms to hunt.
Today, I am not so sure.
I have come to appreciate why the Framers included the Second Amendment in the Bill of Rights.
As noted in McDonald, the essence of the right to keep and bear arms is, ultimately, the right to self-defense:
“Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right.” (McDonald v. Chicago (2010) No. 08-1521, 561 U.S. __ (slip op., at 19).)
Interestingly, the Supreme Court’s discussion of the right to keep and bear arms did not focus on colonial America — rather, the Court talked about the Civil War and the numerous attempts by Southern militias and governments to take away firearms from newly liberated slaves:
“In the first session of the 39th Congress, Senator Wilson told his colleagues: ‘In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.’” ((Id. at __ (slip op., at 24).)
The Supreme Court quoted Samuel Pomeroy, a Republican senator from Kansas, who was alarmed at the disarming of newly freed slaves:
“Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” (Id. at __ (slip op., at 28).)
Does such a right make sense in modern America, where people have access to social services and the police? I believe the answer is still yes — mostly because we are not as civilized and peaceful as we would like to think.
And the discussion in McDonald is fascinating precisely because the Supreme Court acknowledged this violence in American history.
It is a violence where the strong beat the weak; the rich exploit the poor; where families turn and fight each other.
In discussing the right to keep and bear arms, the Supreme Court did not emphasize colonists, pioneers, militia movements or the NRA.
The Supreme Court discussed the right of former slaves, black-skinned, to hold off angry white mobs by arming themselves.
The right to keep and bear arms protects the right of the weak to defend themselves against the aggression of the strong.
This is what the Second Amendment says: “If you are weak, if you are defenseless, then band together with others; discuss your problems; defend yourselves — that is your right. And if necessary, keep and bear arms to defend yourselves.”
There is, in fact, a significant gun violence problem in the United States. But the causes of this violence are deeper than simple access to guns.
Gun violence is a reflection of the violence that permeates American culture.
It is a reflection of the frayed social fabric and the continued way in which Americans target each other (look at Congress) instead of working together.
As such, any staunch supporter of the right to keep and bear arms should strongly favor the following:
Firearm education — It goes without saying that if Americans want to live in a society where the right to keep and bear arms is fundamental, then Americans should be educated on how to responsibly use this right. This is a good idea for every right protected by the Constitution and the Bill of Rights, but in the case of firearms the results of ignorance are lethal.
A robust mental health system — Much of America’s gun violence results from deeply troubled individuals who lash out at the world with firearms. Eric Harris, Dylan Klebold, Seung-Hui Cho, Jared Lee Loughner: these names, and many more, are forever a deadly reminder of the wholly inadequate mental health care system amongst the United States. These people should have been treated long before they took up arms against innocents. Anyone who cares about the right to keep and bear arms should support mental health programs to ensure that such a right is never abused by people in desperate need of medical attention.
Economic opportunity — Gun violence erupts from mental illness; and it also erupts from poverty. It is the poor who succumb to robbery, theft and gun violence in order to feed themselves and find meaning in a state of deprivation. If the American states can provide better economic opportunities — and in particular, jobs that provide meaning and dignity — people will turn away from violent careers that may be more “profitable” in the short term but are just pathetic in the long term.
In the coming weeks, Comar Law intends to file an appeal concerning an unconstitutional deprivation of Second Amendment rights and will post the briefs on its website. We are excited to be entering the foray of constitutional impact litigation, and it is fun to begin with the Second Amendment. It is one piece of the puzzle; there are many more battles to fight and win. It’s just the beginning, and we’re excited to see what’s possible.
Are Americans entitled to internet access as a matter of constitutional right?
What was once a highly theoretical question becomes increasingly relevant in a world where the internet is a daily part of life.
With courts already grappling with how the Fourth Amendment applies to internet activity, it may not be too long before someone argues that internet access itself is a fundamental right guaranteed by America’s political system.
Already, courts have ruled that internet access is a right that cannot be arbitrarily denied by the government.
Much of this analysis has come from appellate courts reviewing internet bans imposed on sexual predators. For example, in United States v. Heckman, 592 F.3d 400 (3d Cir. 2010) the Third Circuit overturned a lifetime internet ban on a defendant with an “extensive criminal history,” which included a “strong thread of sexual offenses to minors and child pornography” in his criminal record. Id. at 404.
Noting that a lifetime ban would be “unprecedented,” the Third Circuit further observed that internet bans are “draconian” because they hamper a “defendant’s employment opportunities upon release,” and limit “freedoms of speech and association.” Id. at 408
While internet access may not be arbitrarily revoked, is access itself guaranteed?
One argument would be a simple “no”. After all, the internet is nowhere mentioned in the Constitution. And since the 1970s, federal courts have resisted recognizing new constitutional rights that are not explicitly spelled out by the text.
On the other hand, a reasonable argument could be made that the internet furthers key rights such as freedom of speech and expression, freedom of assembly, freedom of the press, and the right to petition the government — all protected freedoms under the First Amendment.
More so than television technology, the internet strikes at the heart of Americans’ everyday social interactions and the way they live their lives.
And as recent events in the Middle East appear to indicate, the internet has become a powerful tool in promoting democratic accountability.
State constitutions, as well may confer greater protections related to internet access than the federal Constitution.
In California, for example, people have free speech rights at private malls under the California Constitution that are not recognized under the federal First Amendment. Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850 (2007). It is conceivable that California, or another state, could recognize a broad right to internet access under its own state constitution.
Internationally, Finland has already declared internet access — specifically broadband access — a guaranteed legal right.
Indeed, future American administrations could make a global internet treaty a centerpiece of a human rights agenda founded on internet access, government accountability and transparency, and broad-based protections related to freedom of expression and conscience.
In another victory for sexual orientation rights, President Obama announced yesterday through the Attorney General’s office that his administration would not defend the Defense of Marriage Act in court.
The Defense of Marriage Act is a Clinton-era law that defines marriage as a legal union between a man and a woman. It also lets states disregard marriages between same-sex couples made in other states.
On February 23, 2011, Attorney General Eric Holder sent a letter to Speaker of the House John Boehner describing the President’s conclusion that laws discriminating on the basis of sexual orientation are subject to “heightened-scrutiny” review.
In defending the law under equal protection principles, heightened-scrutiny requires the Government to establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988).
After providing a short history of discrimination in the context of sexual orientation, President Obama concluded that the Defense of Marriage Act “fails to meet that standard and is therefore unconstitutional.”
Consequently, the Department of Justice will not defend the act in two district court cases pending in the Southern District of New York and the District of Connecticut.
At the same time, consistent with the obligations of the Executive Branch, Executive agencies will still be instructed to comply with the Defense of Marriage Act until it is repealed or a court finds that it is unconstitutional.
The Attorney General also stated that if it wanted, Congress was welcome to join the litigation on its own behalf to defend the statute.
The Attorney General’s letter may not seem like a large gesture, but its effects will be far reaching.
For one, it means that the Executive Branch will no longer defend the Defense of Marriage Act in new cases.
It provides the district courts (and Circuit Courts that have not yet addressed this issue) with a legal rationale to invalidate the Defense of Marriage Act.
It is a strong political gesture in favor of equal rights with regard to sexual orientation. Courts may doubly pause before defending the Defense of Marriage Act if they believe that the law is also unpopular as well as unconstitutional. Judges aren’t really supposed to do that, but they are only human and I suspect it must enter their calculus somewhere.
President Obama is certainly subject to criticism on a number of fronts; but his administration has done a great deal for sexual orientation rights, more than any other president.
A series of court cases are highlighting constitutional complexities related to the recent health care legislation passed by Congress and signed into law by President Obama.
The most contested issue is whether or not Congress possesses the power to force people to purchase health insurance — the “individual mandate.”
The individual mandate has been the most controversial aspect of the new health care law.
Progressives have derided it as a sell-out and gift to the insurance companies: customers who are legally forced to enter the market and buy insurance.
Conservatives have derided it as coercive and authoritarian: forcing people to enter into private transactions.
Four federal district courts have addressed whether the individual mandate is constitutional. Two courts — the Western District of Virginia and the Eastern District of Michigan — ruled the individual mandate is constitutional.
The issue boils down to the limits of Congressional authority under the Commerce Clause.
The Commerce Clause gives Congress the power to regulate “commerce . . . among the several states.” That’s all it says.
Since the New Deal, the courts have given Congress wide authority to pass legislation under the Commerce Clause.
The Civil Rights Act of 1964, for example, is based in part on the Commerce Clause.
In the 1990s, though, the Supreme Court began to place limits on the reach of the Commerce Clause.
In the 1994 decision United States v. Lopez, the Supreme Court struck down the “Gun Free School Zones Act,” a federal law that penalized the possession of a firearm at a school.
The Court, writing 5-4, held that Congress’ rationale for passing the law — guns hurt school children and the classroom environment, which then has a negative impact on the economy, which then affects interstate commerce — was too attenuated from actual interstate commerce to be valid.
Relying on Lopez, the Supreme Court struck down parts of the Violence Against Women Act in the 2000 case United States v. Morrison. The Violence Against Women Act provided a federal civil remedy for victims of gender-based violence. As in Lopez, the Court wrote that the rationale provided by Congress was too attenuated from actual interstate commerce to be based on the Commerce Clause.
The outer limits of the Commerce Clause were subsequently redefined in the 2005 case, Gonzales v. Raich. The issue was whether Congress had the authority to penalize the growing of marijuana, even when a person grows marijuana in his or her home, for medicinal purpose, and never sells the marijuana on the market.
The Court departed from Lopez and Morrison and relied on a 1942 case, Wickard v. Filburn, in deciding that Congress could continue to penalize marijuana that is never bought or sold.
In each of these cases, the Supreme Court has struggled to define the boundary between federal and state power.
Without limits to the Commerce Clause, Congress could pass a law about anything.
And if it can do that, then the distinction between the federal government and various state governments becomes meaningless.
Justice Clarence Thomas made this point in his dissent in Raich:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.
So then, how about the individual mandate? Can people be forced to purchase health insurance?
On the one hand, and as the Western District of Virginia stated, no one can deny that health care has tremendous impacts on the economic well being of the United States, and that there is a health care crisis in this country. Unlike Lopez and Morrison, the health care law is economic in nature, and Wickard and Raich permit Congress to regulate individual decisions that may not be in interstate commerce if those decisions, in the aggregate, affect interstate commerce.
Quotes from the Western District of Virginia decision:
The conduct regulated by the individual coverage provision—individuals’ decisions to forego purchasing health insurance coverage—is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison . . . Far from “inactivity,” by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.
Raich is equally applicable. The plaintiffs there, neither of whom bought or sold marijuana, claimed that they were not participating in commerce at all. But the Court held that it was rational to conclude that growing marijuana at home, whatever the nature of that activity, exerted in the aggregate a substantial economic effect on interstate commerce because it affected the supply and demand in the national market for marijuana. Here, similarly, the choice of individuals to go uninsured affects national market conditions for health insurance, reducing the supply of consumers of health insurance who are in good health, and thereby increasing the cost of covering the insured population.
On the other hand, and as the Northern District of Florida recently ruled, making people purchase insurance is an unprecedented scope of Congressional authority. This is not akin to the fact patterns in Wickard and Raich, where individuals were already engaged in an activity. Congress may very well have the power to regulate the actions of people who decide to buy insurance; but it cannot force people to actually enter the market itself — turning “inactivity” into “activity.”
Quotes from the Florida decision:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” , it is not hyperbolizing to suggest that Congress could do almost anything it wanted.
The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.” It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.
What happens now? Appellate review, and then finally Supreme Court review. The Supreme Court will have to define the contours of the Commerce Clause and harmonize the tension between Lopez and Morrison on the one hand, which place strict limits on Congressional power, and Wickard and Raich on the other, which give Congress broad authority to regulate activity that never touches interstate commerce.
This is a tough balancing act. I hesitate to speculate, but it’s not unimaginable that Raich‘s reliance on the ancient holding in Wickard was because the case dealt with marijuana: perhaps some of the justices could not envision an America without drug laws. It is interesting to note that Justices Rehnquist, O’Connor, and Thomas dissented from Raich.
For whatever reason, Congress and the President chose the individual mandate as its preferred vehicle for dealing with health care costs in America. A number of other proposals would have easily passed Constitutional muster. For example, offering a voluntary public health plan to compete with private insurance companies — the “public option” — would have had no constitutional barrier. No one argues that Medicare is illegal, for example.
But Congress and the President chose the individual mandate because it seemed the best way to bring insurance companies on board with health care reform.
Now, the courts may decide that such government-sponsored partnership is unconstitutional.
In my view, this could be a blessing in disguise, as it might galvanize efforts to pass more meaningful (and less constitutionally troublesome) reform.
The real problem is that insurance companies have become far too powerful in the economy to effectively regulate. Congress can — and should — do more to tackle that.
Every American is familiar with two major political parties: the Democratic Party and the Republican Party.
The Democratic Party traces its roots to Thomas Jefferson’s Democratic-Republicans. The Republican Party traces its roots to Abraham Lincoln and the Civil War.
Parties have come and gone: the Federalists, the Whigs, the Know-Nothings, and the Free Silver parties were important organizations at some point or another.
They are obscure and forgotten today.
The dominance of America’s two-party system is taken for granted. But it is interesting: political parties are nowhere mentioned in America’s founding papers.
The Declaration of Independence, the Constitution and the Bill of Rights say a lot of things. But they never mention political parties.
They certainly don’t mention Republican or Democrat.
Many of the Framers feared the rise of political parties. One outspoken opponent of party was America’s first president and war hero, George Washington.
Washington gave a speech when he left office, his “Farewell Address“. He called political parties the “worst enemy” of government. It was in “the interest and duty of a wise people” to discourage and restrain the “common and continual mischiefs of the spirit of party.”
Washington believed in the importance of virtue. What does “virtue” mean? For Washington, and for many of the Framers, virtue meant selflessness: valuing the well being of the country as a whole over the narrow interests of a few.
Washington said that virtue was the “necessary spring of popular government.” ”Can it be that Providence has not connected the permanent felicity of a nation with its virtue?”
Virtue was the essence of maturity, and even masculinity: the word “virtue” comes from the Latin word “vir,” which means “a man.”
John Adams, America’s second President, defined virtue this way:
“There must be a positive passion for the public good, the public interest, honor, power, and glory, established in the minds of the people, or there can be no Republican Government, nor any real Liberty. And this public passion must be superior to all private passions. Men must be ready, they must pride themselves, and be happy to sacrifice their private pleasures, passions, and interests, nay their private friendships and dearest connections, when they stand in competition with the rights of society.”
One of America’s greatest writers, Mark Twain, condemned party loyalty as well. He wrote:
Look at the tyranny of party — at what is called party allegiance, party loyalty — a snare invented by designing men for selfish purposes — and which turns voters into chattles, slaves, rabbits, and all the while their masters, and they themselves are shouting rubbish about liberty, independence, freedom of opinion, freedom of speech, honestly unconscious of the fantastic contradiction.
Times have changed over the last few hundred years. Virtue is largely absent from modern politics, replaced with party loyalty.
But party loyalty at all costs — be it to the Democratic or Republican Party — hurts America.
It is time to question whether loyalty to party is as important as loyalty to country.
Parties may be useful for grouping together people who share the same political philosophy. But whatever usefulness exists through the current party system is overshadowed by the us-versus-them mentality that now controls so many minds.
No matter if the party is corrupt, or duplicitous, or engages in activities that are harmful to democracy; the only thing that matters in party politics is that your party wins and the other one loses.
In fact, the whole notion of “Red” and “Blue” states is corrosive to America, splitting the American public in a way that hinders the public good.
The result is a type of “zombie politics”, where individual Americans unthinkingly fall in lock-step behind a political leader and party without considering the consequences of the policy.
Consider a world without the chains of political party, a world where candidates simply ran on their individual position. Without the backdrop of a party, candidates could propose novel or creative solutions without needing to worry about a larger party agenda.
More candidates — and more ideas — could enter the field.
And without the label of a political party, citizens would have to pay attention to the candidate and engage in critical thinking to determine if the policies made sense and were worthwhile.
For the last fifty years, corporate power, the size of government, militant foreign policies and the division between rich and poor have all increased dramatically — regardless of who has been in office. Clinton expanded government, but so did George W. Bush. Nixon bombed Vietnam, but it was Kennedy who got America involved. George W. Bush lied to the public to start a war in Iraq, but Johnson did the same thing in the Gulf of Tonkin.
Can this republic flourish — or even survive — if smart, well-intentioned people put party first and country second?
The problems that challenge an entire country require solutions that will be in the best interests of everyone — not just Democrat or Republican.
Genuine betterment of America will not be the work of a single party: only of a single people, united, who place the interests of everyone ahead of the interests of a privileged few.
It will require a recognition and resurrection of virtue as a political force — the same virtue that animated America’s founders.
