FedSoc Blog

The Fourth Annual Rosenkranz Debate and Luncheon was held on November 12 at The Federalist Society's 2011 National Lawyers Convention. The topic was "RESOLVED: Congress Acted Within Its Authority in Enacting the Patient Protection and Affordable Care Act."  Debating were Prof. Laurence H. Tribe of Harvard Law School and former U.S. Solicitor General Paul D. Clement of Bancroft PLLC.  Prof. Nicholas Quinn Rosenkranz of the Georgetown Law Center moderated. Gene Federalist Society President Gene Meyer introduced the debate.

The Supreme Court just granted certioriari to the constitutionality of President Barack Obama’s Patient Protection and Affordable Care Act--a/k/a "Obamacare."  The timing could not be better.  On Saturday, at the Fourth Annual Rosenkranz Debate and Luncheon at The Federalist Society's National Lawyers Convention, former solicitor general Paul Clement and Professor Laurence Tribe debated the very question.  It was truly a preview of coming attractions since Clement will be arguing the case before the Supreme Court.

At Above the Law, David Lat provides a summary of their debate, which was moderated by Professor Nicholas Quinn Rosenkranz:

Professor Tribe began by providing some background on the Act. It was signed into law in March 2010 and represented Congress’s attempt to tackle the health care crisis — a crisis that involves some 17 percent of our GDP. He pointed out that health care is unlike other markets because hospitals don’t turn away patients, which means that the health care costs of the uninsured effectively get passed along to everyone else.

The “individual mandate” provision of the Act attempts to encourage coverage by imposing a tax penalty on people who do not buy health insurance. This provision will (1) encourage people to purchase coverage and (2) raise revenue from the people who don’t. It provides an incentive for people to acquire health insurance in advance of when they will actually need care, which is more efficient and effective than the status quo. We know that pretty much everyone will need health care at some point in their lives, so why should we wait until they get injured or sick before we deal with the problem?

Tribe noted, with approval, the decisions by the Sixth Circuit and the D.C. Circuit upholding the validity of the Act. He noted that distinguished conservative jurists such as Judge Jeffrey Sutton (6th Cir.) and Judge Laurence Silberman (D.C. Cir.) have written in defense of the law. He added that even the Eleventh Circuit, which struck down the individual mandate, conceded that the federal government can regulate health care at the time the patient seeks care (because at that point there is indisputably some “commerce” to be regulated).

Opponents of the Act argue that this is like United States v. Lopez, where the Court struck down a law prohibiting people from carrying guns near schools, finding a lack of economic activity. But it is an “economic activity,” according to Tribe, to make other people pay for your health care — which is what ends up happening under the status quo, without the Act.

Tribe concluded his opening remarks by addressing the “slippery slope” arguments made by opponents of the law. He noted that the Act does not force anyone to have any particular medical procedure or change their lifestyle in any particular way (think of the hypotheticals involving government-mandated broccoli consumption). In any event, if it did attempt to do such things, substantive due process concerns would block it.

(This was a Federalist Society event, so substantive due process might not have been the best doctrine to invoke by way of reassurance. But you get his point.)

Clement began his response by emphasizing the “mandate” part of the “individual mandate”: the Act actually orders people to buy health care insurance, a mandate that it happens to enforce with a tax penalty. Even people who are not subject to the penalty — e.g., because they fall below a certain income threshold — are still subject to the mandate (at least as a theoretical matter).

In terms of the relevant market, it should be thought of not as the market for health care, but the market for health care insurance — which people are being forced to buy. They are being forced to purchase it even if they could get by without it. (Maybe you can’t get away without using health care — set aside, for now, Christian Scientists, hermits hiding in the woods, etc. — but you can certainly get away without using health insurance, as millions of people currently do.)

With these observations in mind, what is the Act doing? It is forcing someone to engage in commerce, not regulating commerce that already exists. If this Act is constitutional, according to Clement, the nothing lies beyond the reach of the Commerce Clause — a violation of our federal system, in which the federal government has specific, enumerated powers, not plenary power that touches upon all things.

Under the current system, if you want to avoid federal regulatory power over commerce, you can exercise your right to refrain from engaging in the commerce at issue. Under the Act, however, the federal government can force you to engage in a specific kind of commerce — and then, conveniently enough, regulate that which it has forced you to do.

The primary question with respect to the Act, repeatedly emphasized by Clement throughout the debate, is the following: “What is the limiting principle?” If you look at the Supreme Court’s past Commerce Clause cases, such as Lopez and Morrison, you see that the federal government loses when it can’t state a limiting principle.

If the Act is constitutional, what are the remaining limits on the federal government’s power under the Commerce Clause? If we can force people to buy health insurance, why can’t we force them to buy wheat (cf. Wickard v. Filburn), or force them to buy cars (cf. cash for clunkers)?

In short, Clement concluded, the Act must be struck down. First, it violates the prerogatives of states and the limited nature of federal power (note that Clement represents 26 states challenging the law). Second, it violates individual liberty, by forcing people to engage in commerce against their will. Third, it violates principles of political accountability: if the government wants to raise taxes, which it could be argued is what is really going on here, it should be forced to do so openly and explicitly. (Note how President Obama, in selling the law, denied that it was a tax increase — even though federal government lawyers, subsequently defending the Act, relied in part upon the government’s taxing power.)

In his rebuttal, Tribe questioned whether there was really a difference between “regulating” commerce and “forcing” commerce — i.e., in the process of regulating, the government forces citizens to do certain things. He also emphasized, in a line of reasoning that might appeal to Federalist Society-types, how much political will it takes to pass a law like Obamacare. (In other words, maybe you might not like the Act as a policy matter, but if that’s your problem, you should defeat it through the political process.)

Tribe also noted an interesting point made by Judge Brett Kavanaugh of the D.C. Circuit (who ultimately found no jurisdiction to rule on Obamacare at the current time, pursuant to the Anti-Injunction Act). Judge Kavanaugh noted that the health care law would be clearly constitutional if, instead of “mandating” the purchase of health insurance, it simply operated as nothing more than a tax penalty, telling the citizen, “It’s your choice: you can purchase health insurance, or you can take a hit come tax time.” In Tribe’s view, this is really what the Act effectively does, and so it should be upheld for this reason.

Clement responded by agreeing that yes, there are constitutional ways to achieve the same policy goals as the Act — which is all the more reason why the Constitution should be respected, and the Act should be struck down and then passed in a form that would pass constitutional muster. (Of course, given the current composition of Congress — which changed significantly after the Act was signed into law in March 2010, thanks to the midterm elections — that’s not terribly likely.)

Who won the debate? It depends on how you score it. Clement was the more skillful debater — he’s had a lot of practice, arguing against the Act in the lower courts — but Tribe made many strong points as well, and I came away from the debate thinking that SCOTUS will probably uphold the Act.

This is a view shared by a number of observers, such as Professor (and former Kennedy clerk) Orin Kerr, who told Joan Biskupic of USA Today that he thinks AMK will vote to uphold, based on his prior writings. And it makes a certain amount of sense based on reading the circuit-court tea leaves; well-respected conservative jurists like Judges Sutton and Silberman have voted in favor of the Act.

But, of course, the Supreme Court isn’t bound by its own Commerce Clause precedents in the way that lower courts are bound by them. And thanks to Clement’s excellent advocacy, I now realize the question posed to SCOTUS is far closer than I originally thought. It will be very interesting to see how the justices rule — and very interesting to see the political consequences of their ruling, which should come a few short months before the 2012 presidential election.

This Friday, The Federalist Society's Florida International University Student Chapter and FIU Law Review is hosting an impressive all-day symposium titled "What the Future Holds: Balancing Law, Liberty, and National Security."  For those who can't make it in person, the entire event will be streamed live over the internet.  (The Internet Explorer browser is recommended for the live feed.)

Scheduled speakers include Dean R. Alexander Acosta, Robert Alt, Becky Norton Dunlop, and Professors Michael W. Lewis, Gregory S. McNeal, and Jeremy Rabkin.

The panel schedule is as follows:

9:15 - 10:45 AM

Panel I: From Terrorism to Modern Warfare:

A New Legal Reality?

11:00 - 12:30 PM

Panel II: National Security 2.0:

Economic Markets and Technological Advancements

1:30 - 2:45 PM

A Conversation on Balancing Law, Liberty, and National Security

 3:00 - 4:30 PM

Panel III: Looking Back to Shape the Future:

How Foreign Policy Will Affect Law, Liberty, and National Security

The Washington Post reports that a senior Obama Administration official has confirmed Anwar al-Aulaqi, an American-born Muslim cleric who has been linked to al-Qaeda, dead today after his convoy was struck by a U.S. drone and jet in northern Yemen.

Al-Aulaqi was a national of both the United States and Yemen and has been implicated in inspiring several terrorist attacks in the U.S., including the Fort Hood shooting in November 2009, the infamous attempted "Underwear Bombing" aboard a plane bound for Detroit in December 2009, and the car bomb that failed to detonate in Times Square in May 2010.

Do such airstrikes in foreign countries on American citizens and others who are suspected of terrorism comply with U.S. law and the international laws of war? For more on that question, click here for a podcast from the Federalist Society's International & National Security Law Practice Group on "Predator Drones and Targeted Killings," and click here for an Engage article on the subject from Michael Lewis and Vincent Vitkowsky.

The WSJ Law Blog reports that two years after the Supreme Court's 2009 decision in Ricci v. DeStefano, holding that New Haven had unconstitutionally discriminated against 20 firefighters when it threw out the results of a promotion test merely because white test-takers outperformed minority test-takers, the litigation continues.

Now, Michael Briscoe, a black firefighter in New Haven, is suing the city because, following the Supreme Court's decision in Ricci, it accepted the results of the test at the basis of the litigation and thus denied him a promotion. He alleges that the fact that the test was 60 percent written and 40 percent oral favored the white firefighters, whereas a 30-70 differential would have resulted in him passing.

After a federal district court decided that the Supreme Court's ruling shielded the city from suit over the test's validity, the Second Circuit Court of Appeals reversed the lower court and held that the suit, based on disparate impact claims under Title VII of the 1964 Civil Rights Act, could go forward. Click here for the court's decision.

The city argued that the Supreme Court had precluded the suit in language in the decision, which stated that "in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results," it would have been subject to liability for race discrimination. The appeals court, however, found that this was merely a "single sentence of dicta" unrelated to the holding of the case.

Click here for a Federalist Society SCOTUScast on Ricci v. DeStefano featuring Michael Rosman. Click here for a paper by Roger Clegg on the Obama Administration's involvement in the case for the Federalist Society's New Federal Initiatives Project.

UPDATE: For a discussion of the Ricci case within a broader argument for a new principle of equality, click here to read Donald J. Kochan's article "On Equality: The Anti-Interference Principle," published earlier this year in the University of Richmond Law Review.

Subscribe to our RSS feed! Click here for the address.

Listen to the audio here.

On June 27, 2011, the Supreme Court announced its decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. The question in this case was whether Arizona's matching funds system for publicly funded candidates for state office violated the First Amendment.

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 5 to 4 that "Arizona's matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment." Justices Scalia, Kennedy, Thomas, and Alito joined the opinion of Chief Justice Roberts. Justice Kagan filed a dissenting opinion, which was joined by Justices Ginsburg, Breyer, and Sotomayor.

To discuss the case, we have Bradley A. Smith, who is the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School.

Click here to view this article on the source site »

Listen to the audio here.

On June 16, 2011, the Supreme Court announced its decision in J.D.B. v. North Carolina. This case concerns a thirteen-year-old, J.D.B., who was questioned by a uniformed police officer and school administrators in a closed-door conference room at J.D.B.'s school. Before the questioning began, the police officer did not Mirandize J.D.B., give him the opportunity to call his legal guardian, or tell him that he was free to leave the room. The question in this case is "whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda v. Arizona."

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 5-4 that "a child's age properly informs the Miranda custody analysis." Justices Kennedy, Ginsburg, Breyer, and Kagan joined Justice Sotomayor’s opinion. Justice Alito filed a dissenting opinion, which was joined by Chief Justice Roberts and Justices Scalia and Thomas.

To discuss the case, we have Carissa Byrne Hessick, who is a professor at the Sandra Day O'Connor College of Law at Arizona State University.

Click here to view this article on the source site »

Listen to the audio here.

On June 23, 2011, the Supreme Court announced its decision in Bullcoming v. New Mexico. The question in this case was whether "the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification--made for the purpose of proving a particular fact--through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification."

Justice Ginsburg delivered the opinion of the Court, except with regard to Part IV and footnote 6. The Court by a vote of 5-4 held that surrogate testimony of the sort in the immediate case does not meet the requirements of the Confrontation Clause. The Court explained that "the accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."

Justice Scalia joined Justice Ginsburg's opinion in full. Justices Sotomayor and Kagan joined all of Justice Ginsburg's opinion except for Part IV. Justice Sotomayor also filed an opinion concurring in part. Justice Thomas joined all of Justice Ginsburg’s opinion except for Part IV and footnote 6. Justice Kennedy filed a dissenting opinion, which Chief Justice Roberts and Justices Breyer and Alito joined.

To discuss the case, we have Stephanos Bibas, who is a Professor of Law and Criminology and Director of the Supreme Court Clinic at the University of Pennsylvania Law School.

Click here to view this article on the source site »

Listen to the audio here.

On June 16, 2011, the Supreme Court announced its decision in Bond v. United States. After discovering that her husband had impregnated her close friend, the petitioner, Bond, placed caustic substances on objects that her friend was likely to touch. Bond was indicted in federal district court for, among other things, violating a federal law that prohibits the "knowing possession or use of any chemical that 'can caused death, temporary incapacitation or permanent harm to humans or animals' where not intended for a 'peaceful purpose.'" The federal law was enacted as part of the implementation of a chemical weapons treaty.

Bond, on Tenth Amendment grounds, contended that Congress did not have the constitutional authority to enact the statute.While the case was in the court of appeals, the government maintained that Bond did not have standing to challenge the statute on Tenth Amendment grounds. (The government eventually changed its position and agreed that Bond did have standing to challenge the federal law on Tenth Amendment grounds.) The question that the Supreme Court answered was "whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States."

In an opinion delivered by Justice Kennedy, the Court unanimously held that Bond does have standing to challenge the federal statute on Tenth Amendment grounds. Justice Ginsburg filed a concurring opinion, which Justice Breyer joined.

To discuss the case, we have Dr. John C. Eastman, who is a Professor at the Chapman University School of Law.

Click here to view this article on the source site »

Listen to the audio here.

On June 9, 2011, the Supreme Court announced its decision in Sykes v. United States. If an armed defendant has three prior "violent felony" convictions, the Armed Career Criminal Act (ACCA) provides that that defendant, if convicted, would face a fifteen-year mandatory minimum prison term. The petitioner in this case contested whether his class D Indiana felony of fleeing in a vehicle from a police officer counts as a violent felony for the purposes of this ACCA provision.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 6-3 that the petitioner's Indiana vehicle flight conviction is a violent felony for the purposes of the ACCA. Chief Justice Roberts and Justices Breyer, Alito, and Sotomayor joined Justice Kennedy’s opinion. Justice Thomas filed an opinion concurring in the judgment. Justice Scalia filed a dissenting opinion. Justice Kagan filed a dissenting opinion, which Justice Ginsburg joined.

To discuss the case, we have Brian J. Paul, who is a partner at Ice Miller LLP.

Click here to view this article on the source site »

Listen to the audio here.

On June 6, 2011, the Supreme Court announced its decision in Erica P. John Fund, Inc. v. Halliburton Co. The question in this case was whether securities fraud plaintiffs must prove "that the defendant's deceptive conduct caused their claimed economic loss" in order to be certified as a class.

In an opinion delivered by Chief Justice Roberts, the Court held unanimously that securities fraud plaintiffs do not need to prove that the defendant's deceptive conduct caused their claimed economic loss in order to be certified as a class.

To discuss the case, we have Adam C. Pritchard, who is the Frances and George Skestos Professor of Law at the University of Michigan Law School.

Click here to view this article on the source site »

Listen to the audio here.

On May 31, 2011 the Supreme Court announced its decision in Ashcroft v. al-Kidd. The question in this case was "whether a former Attorney General enjoys immunity from suit for allegedly authorizing federal prosecutors to obtain valid material-witness warrants for detention of terrorism suspects whom they would otherwise lack probable cause to arrest."

In an opinion delivered by Justice Scalia, the Court held the following by a vote of 8-0: First, "an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive." Second, "[then-Attorney General] Ashcroft did not violate clearly established law;" therefore he "deserves qualified immunity."

Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined Justice Scalia's opinion. Justice Kennedy filed a concurring opinion, which Justices Ginsburg, Breyer, and Sotomayor joined as to Part I. Justice Ginsburg filed an opinion concurring in the judgment, which Justices Breyer and Sotomayor joined. Justice Sotomayor filed an opinion concurring in the judgment, which Justices Ginsburg and Breyer joined. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Richard A. Samp, who is Chief Counsel at the Washington Legal Foundation.

Click here to view this article on the source site »

Listen to the audio here.

On June 13, 2011, the Supreme Court announced its decision in Janus Capital Group, Inc. v. First Derivative Traders. The question in this case was "whether Janus Capital Management LLC (JCM), a mutual fund investment adviser, can be held liable in a private action under Securities and Exchange Commission (SEC) Rule 10b–5 for false statements included in its client mutual funds' prospectuses."

In an opinion delivered by Justice Thomas, the Court held by a vote of 5-4 that because Janus Capital Management did not make the false statements in the prospectuses, it cannot be held liable for those statements. Chief Justice Roberts and Justices Scalia, Kennedy, and Alito joined the opinion of Justice Thomas. Justice Breyer filed a dissenting opinion, which Justices Ginsburg, Sotomayor, and Kagan joined.

To discuss the case, we have Jonathan F. Cohn, who is a partner at Sidley Austin LLP.

Click here to view this article on the source site »

Listen to the audio here.

On June 20, 2011, the Supreme Court announced its decision in American Electric Power Company v. Connecticut.  The question in this case was whether "the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority)."

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 8-0 that "[t]he Clean Air Act and the Environmental Protection Agency action the Act authorizes . . . displace the claims the plaintiffs seek to pursue." Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan joined Justice Ginsburg’s opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor took no part in the consideration or decision of the case.

To discuss the case, we have Megan L. Brown, who is a partner at Wiley Rein LLP. Ms. Brown is on an amicus brief in support of the petitioners.

Click here to view this article on the source site »

The Washington Post reports that the United States is giving the leaders of the rebel forces in Libya full diplomatic recognition as the "legitimate governing authority for Libya." Hillary Clinton made the announcement today.

This decision allows the U.S. government to grant the rebels access to more than $30 billion in frozen U.S. assets in Libya. The recognition takes place following five months of the rebels' military conflict to topple Moammar Gaddafi, as opposition to the U.S. presence in the conflict has been ramping up in Congress.

Click here for the last FedSoc Blog post on Libya. Click here for a Practice Groups Podcast on "The President's Authority in Libya," with Prof. Saikrishna Prakash of the University of Virginia School of Law, David Rivkin of Baker & Hostetler, Prof. Peter Spiro of Temple University - Beasley School of Law, and Hon. Edwin Williamson of Sullivan & Cromwell. Hon. Ronald Cass moderates.