Category Archives: Supreme Court

ObamaCare, The Constitution, And The Next Round In The Health Care Wars

The Constitutionality of ObamaCare is apparently a subject that neither Nancy Pelosi, nor any other Member of Congress has given any consideration to. In today’s Washington Post, however, Law Professor Randy Barnett takes a look at the probable Constitutional challenges to the health care bill:

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

As I’ve written before, this may be the one area of the health care bill that it most vulnerable to a Constitutional challenge. Neither the Commerce Clause, nor any other provision of Article I, Section 8 of the Constitution would seem to be capable of being read in a reasonable manner so as to grant to Congress the power to force every American man, woman, and child to purchase a produce whether they wanted to or not.

Will the Court’s see it the same way ? That remains to be seen, but there have been signs in recent years that the Supreme Court wants to step back from the overly broad interpretation of the Commerce Clause that we’ve become familiar with:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

So, this is as not nearly as much of a long-shot argument as it might have been twenty or thirty years ago.

Barnett concludes:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

In other worth, even if ObamaCare passes today, the political firestorm isn’t over, and the legal firestorm is just getting started.

Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

Hank Skinner is scheduled to be executed by the State of Texas on March 24th. Despite more than a decade of requests to have his DNA tested, Texas courts have denied him every step of the way. The Medill Innocence Project has even offered to pay for the testing to no avail. Skinner’s attorneys have appealed to the U.S. Supreme Court to force the issue before it’s too late. Given the recent ruling in Osborne, I’m not optimistic that Alito and Roberts would put their slavish allegiance to process aside long enough to allow the truth of Skinner’s guilt or innocence to see the light of day…at least until after Skinner is executed (maybe).

Former Texas prosecutor Sam Millsap wrote an op-ed piece in The Houston Chronicle explaining why he believes the courts should grant Skinner’s request, if for no other reason, to learn the truth. He also pointed out that only a week ago, Gov. Rick Perry pardoned Tim Cole posthumously some 9 years after he died while in prison. Why wouldn’t the same governor want to avoid making the same mistake again?

Millsap:

I’m not an advocate for Hank Skinner. I’m an advocate for the truth. If DNA tests could remove the uncertainty about Skinner’s guilt — one way or the other — there’s not a good reason in the world not to do it […]

[…]

It is cases like Skinner’s that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

From there Millsap gets personal and explains why he, acting in good faith, may have been responsible for prosecuting an innocent man who was executed in 1993.

Why the change of heart? Millsap explained that one of his star witnesses against Ruben Cantu recanted his testimony 20 years later. Millsap said he believes the witness’s latest version of the events because the witness had nothing to gain from changing his testimony “except a whole lot of trouble.”

Beyond Cantu, Millsap also believes Texas has executed at least two other men he says “were almost certainly innocent”: Carlos DeLuna, executed in 1989 and Cameron Todd Willingham, executed in 2004.

Millsap is by no means the only individual inside the Texas criminal justice system who recognizes inherent flaws in the system which kills more people every year than any other state. State District Judge Kevin Fine recently granted a pretrial motion declaring the death penalty unconstitutional due to his belief that innocent people have been executed in Texas and elsewhere:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The article goes on to point out that Judge Fine’s ruling will likely be overturned on appeal and is more symbolic than anything else (i.e. a way to force people to discuss the issue of the death penalty). Fine is taking quite the career risk in a very pro-death penalty state which elects its judges. His critics, who like to point out that Judge Fine is a former cocaine addict, argue that his ruling has no basis in the law.*

And maybe Judge Fine’s critics are technically right** about his “judicial activism,” but can anyone really argue with the judge’s logic? Is it possible for sates to execute only guilty individuals 100% of the time when states have admitted to wrongfully convicting others for lesser charges? If not, what is the acceptable margin of error when we are talking about allowing the government to kill?

These are the kinds of questions which I hope keep Gov. Perry up at night with the scheduled execution of Hank Skinner and those who will undoubtedly follow.

» Read more

Opening the floodgates…

From tonight’s State of the Union address:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

In the video, Justice Samuel Alito can be seen visibly disagreeing with this sentiment. First, I’m glad someone can stand up against a President who respects the independence of the judiciary so little that he calls them out in the State of the Union. Such moves reek of political hackery that should be far beneath the President. Second, Obama’s assertion is flatly wrong.

Obama contends that the floodgates have been suddenly opened for corporations to have undue influence over candidates and politicians simply because campaign spending limits have been lifted. How, in a country where a single mother can be ordered to pay $1.92 million for sharing music because of a law bought and paid for by the recording industry, can it be claimed that the influence of corporate interests is at all inhibited?

In the recent health care debates, WalMart was on the front lines of the cheering, hoping that they could dupe Democrats into using the law to skewer their smaller competitors. In the same debate, the SEIU managed to secure a sweetheart deal for unions where the “Cadillac” tax would not be borne if the gold-plated health care plan was a result of collective bargaining (read: union strong-arming).

The history of the last half-century in Washington is one where incumbents and party-anointed successors enter into perpetual quid pro quo relationships with special interests. Legislators get things from special interests in return for political and legislative favors. We all know that this is the way things work. We all hope that when we send “our guy” to Washington that he’ll be the one to change it.

In real life, there is no Mr. Smith. Even when someone like Jeff Flake comes to Washington and tries to fight for the people he is rebuffed. The self-styled ruling class in Washington depends on having a monopoly on the influence of big business and special interests.

It is not the thought of special interests influencing politics that scares the ruling class. It is the thought of special interests influencing politics without them that does.

Influence peddling and vote buying are expected in the halls of power. Interests are allowed nearly unlimited access as long as they come in as supplicants to the ruling class. Once the same interests attempt to take their message from K Street to Main Street, the law is brought down upon them as they are accused of trying to corrupt the political process.

With that in mind, let’s look at what the President really meant behind the doublespeak:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to speak directly to the people,” Obama said. “Well I don’t think that the course of American politics should be interfered with by the American people. It should be decided by the ruling class in cooperation with America’s most powerful interests, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

The Supreme Court had the temerity to undercut the system of influence carefully constructed by the Republicratic ruling class over the last century. Obama is leading the charge to restore the power that the Supreme Court, and the Constitution, has denied them.

May more Americans have the courage to challenge Obama and the ruling class on this.

Supreme Court Strikes A Blow For Free Speech

By driving a stake through the heart of McCain-Feingold:

WASHINGTON — The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns.

By a 5-4 vote, the court overturned a 20-year-old ruling that said companies can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

(…)

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

As I’ve said many times before, the only campaign finance regulation that we need is full and complete disclosure.

Every candidate for Federal office should be required to disclose all contributions and disbursements and a regular basis (possibly even more frequently than the quarterly reports that are now the law), and that information should be easily available to the public so that people can know where a candidate’s money comes from and where it goes. After all, isn’t that what the First Amendment is really all about — let the information out and let the public decide what to think about it ?

Here’s the full opinion and dissent:

Citizens Opinion

Disturbing Quote of the Day

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” – From the dissenting opinion by Justices Scalia and Thomas on the question of whether death row inmate Troy Davis should receive a new trial after 7 eye witnesses against him recanted their testimonies against Davis.

So as long as the defendant has received a ‘fair trial’ and found guilty, actual innocence does not matter and the state can kill an innocent person according to Scalia and Thomas?

And these are who conservatives and some libertarians consider the ‘good guys’ on the Supreme Court? They certainly aren’t on this issue.

Hat Tip: The Daily Beast

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