Tag: amicus briefs

Obamacare Is Unconstitutional

The very day President Obama signed the Patient Protection and Affordable Care Act, aka Obamacare, Virginia’s attorney general filed a lawsuit in federal court challenging the constitutionality of the health care overhaul. Virginia’s complaint alleges, in relevant part, that the PPACA’s requirement that every individual purchase health insurance or pay a fine – the “individual mandate” – is unconstitutional because Congress lacks the power to enact it.

The U.S. Government filed a motion to dismiss, claiming that Virginia lacked standing to bring this suit but also that the Commerce Clause, the Necessary and Proper Clause, and Congress’ taxing power all justify the individual mandate. Virginia responded, in relevant part, that the Commerce Clause does not grant Congress unbridled authority to regulate inactivity and force every man, woman, and child to enter the marketplace or face a civil penalty.

Cato, joined by the Competitive Enterprise Institute and Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a “memorandum” – not called a “brief” because this is district (trial-level) court – supporting Virginia’s position and explaining that neither of the Government’s fallback positions legitimizes the individual mandate. We point out that the Necessary and Proper Clause is not an independent source of congressional power, but enables Congress to exercise its enumerated powers. Similarly, the taxing power does not authorize the individual mandate because the non-compliance penalty is a civil fine – and it would be unconstitutional even if it were a tax because it is neither apportioned (if a direct tax) nor uniform (if an excise tax). Moreover, Congress cannot use the taxing power as a backdoor means of regulating an activity unless such regulation is authorized elsewhere in the Constitution.

You can read our memorandum here.  The Government now has an opportunity to reply to the arguments raised by Virginia and those supporting its position (including us), and then the court will entertain oral arguments on the motion to dismiss.  We can expect a ruling this fall.

Mixed Result in Complicated Property Rights Case

Today the Supreme Court came down with its ruling in Stop the Beach Renourishment v. Florida Department of Environmental Protection, a case I previously blogged about here and here, and in which Cato filed a brief.

While the Court’s 8-0 ruling against the Florida oceanfront (now ocean-view) property owners was not the result we wanted, the part of the decision that was unanimously unfortunate turned on a narrow and probably mistaken interpretation of state property law.  Much more importantly, the remainder of Justice Scalia’s opinion makes clear that judicial takings are just as much a violation of the Fifth Amendment as any other kind.  “If a legislature or a court declares that what was once an established right of private property no longer exists,” Scalia writes for a four-justice plurality, “it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”   And the test for whether the government—any part of it—has committed a taking turns on “whether the property right allegedly taken was established.” 

Moreover, that the Court ultimately found no taking here should provide no succor to courts and other state actors who wish to abuse property rights in the future.  The case could have easily swung the other way in a non-oceanfront circumstance or under a different state’s laws.  Indeed, two justices (Kennedy and Sotomayor) said that federal courts can still police judicial takings—under a different name—by using the Fourteenth Amendment’s Due Process Clause, while the remaining two (Breyer and Ginsburg) decided to leave the question for another day.  Nobody accepted outright the idea that courts cannot be held accountable for subverting property rights!

In short, state courts are now on notice that they violate long-held property rights at their peril.

Global Warming Plaintiffs Hoisted on Their Own Petard

We have reached a denouement of sorts in the “blame XYZ companies for causing global warming which caused Hurricane Katrina which damaged my property” lawsuit that I’ve previously discussed and in which Cato filed an amicus brief.  When last I blogged about this, the Fifth Circuit had apparently lost its en banc quorum – a late judicial recusal left only 8 of 16 judges available to hear the appeal – and was figuring out what to do. 

Well, on Thursday the court issued an order determining that it lacked a quorum, but that the panel opinion – the one that allowed the tendentious causation claims to proceed – remained vacated.  The money quote: “In sum, a court without a quorum cannot conduct judicial business… .  Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.”  This means that the district court opinion dismissing the suit stands, though plaintiffs are free to seek Supreme Court review.  Not surprisingly, the three judges on the panel dissented from this order (which means that the order was decided by a 5-3 vote).

The upshot of all this is that the plaintiffs ended up botching their strategy of suing companies whose shares are owned by Fifth Circuit judges.  This clever legerdemain successfully removed seven judges, but that left a quorum of nine.  Of course, had the late-recusing eighth, Jennifer Elrod – who would’ve been expected to rule against the plaintiffs – recused when the first seven did, the court could not have vacated the panel opinion in the first place.  We’ll never know what happened after the court’s prior decision to grant rehearing that caused Judge Elrod to recuse, but at least we’re left with the second-best result: no strong decision from an important federal appellate court, but the reinstatment of the correct decision below.

Justice Kennedy Discusses Cato’s View on Use of Foreign Law

One quick addendum to my previous commentary on this week’s decision in Graham v. Florida the use of foreign law by U.S. courts: Toward the very end of Justice Kennedy’s majority opinion, in part D where he gratuitously nods to world opinion about juvenile life-without-parole (LWOP) sentences, he takes issue with one of the lesser arguments we make in our brief, that no international treaty prohibits such sentences.  (See page 31 of the Graham opinion – note that Cato itself is not mentioned because we were one of 13 groups signing the brief – and pages 14-16 of our brief.)  Kennedy says that the issue of whether international law prohibits the United States from imposing the juvenile LWOP sentences is beside the point, that the proper question to ask is whether such sentences are “cruel and unusual.” 

Well, yes, that’s the correct standard under the Eighth Amendment, and I’m glad that Justice Kennedy did not side with opposing amici and those in the legal academy who argue that various international conventions (or customary international law) do require such a prohibition.  But Kennedy’s point here raises a further question: why is what someone in France or Japan or Brazil or Saudi Arabia says on the matter relevant to what is cruel and unusual under U.S. law?

Supreme Court Further Reduces Constitutional Limits on Federal Power

As Roger has just blogged, the Supreme Court in today’s Comstock decision has ”turned an instrumental power, dependent on Congress’s other powers, into an independent power.”  That is, Justice Breyer’s decision has imbued the Necessary and Proper Clause – which merely gives Congress the power to enact laws that are “necessary and proper” for “carrying into execution” one of the powers enumerated in Article I, section 8 – with independent authority to justify federal power.  Thus, in effect, Congress has the power to do anything it deems “necessary and proper” (or, indeed “convenient or useful”), quite apart from whether that thing relates to an enumerated power or not.  I explained here why this view – and Breyer’s elaboration on it during oral argument – is wrong.

Without exaggeration, the Comstock decision is one of the most harmful Supreme Court decisions in recent memory.  If there is anything worse than the Court’s radical expansion of the Necessary and Proper Clause, it is that seven justices signed onto this sweeping pronouncement.  While it isn’t surprising that Justice Breyer, joined by his “progressive” colleagues, would have such an expansive view of federal power, it is disconcerting that Chief Justice Roberts joined the majority opinion in its entirety.  And while Justice Kennedy separately counsels that “the Constitution does require the invalidation of congressional attempts to extend federal power in some instances,” it’s hard to see what those instances are in the wake of Comstock.  Justice Alito also has some qualms about the reach of the Necessary and Proper Clause but unfortunately is left satisfied that here “there is a substantial link to Congress’ constitutional powers” (adding yet another exception that swallows the constitutional rule on limited congressional power).

Only Justice Thomas, whose magisterial dissent is joined by Justice Scalia, sees today’s decision for what it is, the transformation of the Necessary and Proper Clause into a sort of federal police power, the existence of which the Court has long denied.  As Thomas says, ”the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”  (This is of course counter not only the Court majority but also the immortal words of President George W. Bush that “when somebody hurts, government has got to move.”)

About the only good thing about this opinion is that it declined to expand Congress’s power under the Commerce Clause – an alternative justification for the law at issue that the government offered unsuccessfully in the court below and which Solicitor General Elena Kagan abandoned before the Supreme Court.

For more coverage of Comstock, see Josh Blackman’s series of posts and Randy Barnett at the Volokh Conspiracy.  Also, here is Cato’s brief on the case (which I summarize here) and my description of Kagan’s response to some of the points we raised.

Even Unpopular Causes Get Full First Amendment Protection

Under Washington’s constitution, a popular vote must be ordered on any bill passed by the legislature if a specified percentage of state voters sign a petition for a referendum. Washington’s Public Records Act makes public records, including such referendum petitions, available for public inspection. In 2009, opponents of same-sex marriage used the referendum procedure to attempt to reverse a state law which expands the rights of state-registered domestic partners. Proponents of the law sought access to the petition and two of the petition signers sought a preliminary injunction to prevent disclosure of their personal information, arguing that the PRA violates their right to speak anonymously.

The Ninth Circuit Court of Appeals held that the right to access trumps the right to anonymity. The Supreme Court granted certiorari to determine whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels the public release of identifying information about petition signers, and whether compelled disclosure of such information is narrowly tailored to a compelling government interest.

Cato filed a brief supporting the petition signers, in which we argue that the Court should establish a bright-line rule prohibiting laws that mandate the full disclosure of petition signers’ identities and contact information. Public disclosure carries significant burdens and unconstitutionally chills the exercise of First Amendment rights when no compelling government interest is at stake.

If the Court finds that the state has a compelling interest in public disclosure, disclosure exemptions are constitutionally required. Failure to require exemptions would permit the government to suppress the expression of offensive or unpopular ideas and would discourage individuals from associating in the first place.

Finally, our brief argues that even exemptions are not a substitute for strict scrutiny and provide inadequate protection where disclosure is not justified by compelling state interests. Exemption rules still chill speech, by their nature as an ad hoc process without fixed standards; the government is ill-suited to identify which groups should be exempt from disclosure, as is evidenced by their poor track record of erroneously suppressing controversial or unpopular speech.

The case, Doe v. Reed, will be argued in April.

Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power

Today I went to the Court to watch the argument in United States v. Comstock, which I blogged about previously and in which Cato filed an amicus brief.  As I also blogged previously, Cato’s arguments so concerned the government that the solicitor general spent four pages of her reply brief going after them.

At issue is a 2006 federal law that provides for the civil commitment of any federal prisoner after the conclusion of his sentence upon the appropriate official’s certification that the soon-to-be-released prisoner is “sexually dangerous.”  The problem is that, while states have what’s called a “police power” to handle this sort of thing – to appropriately deal with with threats to society from the dangerously insane and so forth – the federal government’s powers are limited to those enumerated in the Constitution.  And I’m sorry, there’s no power to civilly commit people who have committed no further crime beyond those for which they’ve already been duly punished.

The government, having abandoned its Commerce Clause argument – a big loser in the lower courts – relied at the Supreme Court on the Necessary and Proper Clause.  This clause says that Congress shall have the power to “make all laws which shall be necessary and proper for carrying into execution [the specific powers listed in Article I, section 8], and all other powers vested by this Constitution in the government of the United States.”

In other words, we have a government of delegated and enumerated, and therefore limited powers.  As Ryan Lirette put it in National Review Online last week,  ”Congress may not search every corner of our country looking for problems to vanquish.  Instead, Congress must be able to justify each law it passes with a specific congressional authorization.”

The solicitor general contends that civilly committing the sexually dangerous is “necessary and proper” to regulating the federal prison system – which itself is not an enumerated power but ancillary to enforcing federal criminal laws that Congress is appropriately empowered to make.  At the argument, solicitor general Kagan further justified the relevant provision as related to “responsibly” releasing federal prisoners.

I don’t think her “cascading powers” theory of the Necessary and Proper Clause is a winner – for reasons I describe in my recent podcast – and Justice Scalia also wasn’t convinced.  Justice Breyer, however, at one point asked where the Constitution prohibited the federal government from “help[ing] with” a problem it identified (see page 31 of the transcript) and in general was hesitant to find limits to congressional action to solve big policy areas.

Breyer has it all backward: We don’t operate on the premise that the government has full plenary power to do whatever it thinks is best, for the “general welfare,” for “the children,” for “society,” or for any particular group, checked only by specific prohibitions.  Instead, our system of government – our constitutional rule of law – provides for islands of government involvement in a sea of liberty.  It is individual people who can do whatever they want that isn’t prohibited by law, not the government.

And so we’ll see soon enough which vision of the relationship between citizen and state the Supreme Court embraces.  Along with Justice Breyer, Justices Stevens and Ginsburg also were not very sympathetic to the federalism and libertarian arguments ably presented by federal public defender G. Alan Dubois.  Along with Justice Scalia, Justice Alito was (refreshingly) skeptical of undue government power – and one would expect (the silent) Justice Thomas to be in that category as well.  Justice Sotomayor also asked some interesting questions inquiring into the federal government’s ability to hold someone indefinitely – including on the relationship of that power to the Commerce Clause authority underlying most federal exercise of power – so she could go either way.  Finally, the Chief Justice and Justice Kennedy were, uncharacteristically, not all too active – seeming to question both sides equally – so it’s hard to predict how the Court will ultimately rule.