Tag: Supreme Court

The Federal Government Can’t Give Itself More Power Just By Signing a Treaty

With ObamaCare, immigration, affirmative action, gay marriage, and the other hot-button issues rolling through our courts this year, some of you may have overlooked a little case on the Treaty Power, United States v. Bond, which was at the Court last year and may well make it back next year.

I’ve covered Bond before, and Cato has filed two amicus briefs in the case (before the Supreme Court and then in the Third Circuit on remand). As I described it last year, Bond is “your typical sordid tale of adultery, toxic chemicals, and federalism.” It’s a bizarre scenario you can read about in the previous links, but the issue that has drawn Cato’s attention—and that of Paul Clement, who remains Mrs. Bond’s counsel—is whether Congress can regulate the conduct of something solely because the United States is party to a treaty regarding that subject.

That is, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, the dominant reading of an old precedent called Missouri v. Holland is that its power increases beyond constitutional limits. Not only would this mean that the Executive has the ability to expand congressional power by signing a treaty, but it would mean that foreign governments could change congressional power by abrogating a previously valid treaty—thus removing the constitutional authority from certain laws. Cato’s briefs have taken issue with such an interpretation of the Treaty Power, tracking the argument made by new Cato senior fellow (and Georgetown law professor) Nicholas Quinn Rosenkranz in his magisterial Harvard Law Review article, “Executing the Treaty Power.”

Earlier this month, the Third Circuit upheld Mrs. Bond’s conviction because the statute under which she was convicted duly implemented the Chemical Conventions Act and a lower court can’t overrule Missouri v. Holland. The court cited Cato’s brief and Nick’s article, however, and a concurrence by Judge Thomas Ambro, after also citing John Eastman’s article about the case in the Cato Supreme Court Review, specifically called on the Supreme Court to clarify the meaning of Missouri v. Holland.

The Court will have an opportunity to do so, with Paul Clement currently preparing a cert petition, which Cato will again support. In the meantime, you can listen in on a teleforum the Federalist Society is having about the case, featuring Prof. Rosenkranz (Fed Soc membership required, which costs $5-50 per year).

College Applicants Should Be Judged on Their Merits, Not the Color of Their Skin

The Supreme Court has waded back into the affirmative action thicket, taking up the issue of the proper role, if any, of race in college admissions, in the case of Fisher v. University of Texas at Austin, which it will be hearing this fall, likely in October.

Abigail Fisher, who is white, was denied admission to the University of Texas at Austin even though her academic credentials exceeded those of many admitted minority applicants. She challenged UT-Austin’s consideration of race in selecting its incoming freshmen but lost before the district court in light of the Supreme Court’s 2003 ruling in Grutter v. Bollinger.

In Grutter, a divided Court held that using race as a factor (but not one tied to a set number of points or quotas) was justified in the name of diversity. But UT-Austin’s admissions program treats race in a different way, and gets different results, than did the admissions program Grutter upheld at the University of Michigan Law School.

The Fifth Circuit panel nevertheless affirmed the district court, but Judge Emilio Garza specially concurred to say that while he was bound by Grutter, that decision seemed to conflict with other precedent and with the Fourteenth Amendment’s Equal Protection Clause. The Fifth Circuit then voted 9-7 against rehearing the case en banc (before all judges on the court), over a sharp dissent from Chief Judge Edith Jones that emphasized how the ruling would allow states to play fast-and-loose with Grutter’s narrow-tailoring requirement.

Now before the Supreme Court, Cato filed an amicus brief supporting Abby Fisher and arguing that the Fifth Circuit showed blind deference to UT’s policy rather than the constitutionally demanded strict scrutiny. The lower court explicitly declined to evaluate the merits of UT’s decision to consider race, instead assuming the institution’s good faith. Under this rule, a public university’s mere assertion of a diversity interest, irrespective of the university’s precise circumstances or actual motivations, trumps an applicant’s right to be treated as an individual rather than a racial specimen.

We also point out that the Fifth Circuit ignored the Supreme Court’s requirement (from the 1989 case of City of Richmond v. J.A. Croson Co.) that the government demonstrate a “strong basis in evidence” for racial classifications in order to smoke out the illegitimate motivations that can underlie such schemes. That is, Grutter upheld Michigan’s racial preferences because the school showed that minority enrollment would have plummeted to almost nothing without them, while UT had already achieved real diversity (beyond even that created by Michigan’s preferences) with a race-neutral law that guarantees admission to anyone graduating in the top 10 percent of a Texas public school.

Finally, we note that even if UT could show that racial preferences were necessary for some legitimate reason, its chosen paradigm for applying such preferences is arbitrary. For example, UT justifies preferences to Hispanics by pointing to the need for a “critical mass” of such students, even as it denies preferences to Asians, who comprise a smaller portion of the student body.

We urge the Supreme Court to reign in UT’s unbridled use of race in admissions decisions and take an important step toward ensuring that young Americans are judged on their qualifications and character rather than their skin color.

Obamacare’s Constitutional Defects, First Amendment Division

On May 11, the Department of Health & Human Services finalized rules requiring insurers to tell any of their customers who get premium rebates this summer that the windfall comes courtesy of Obamacare.  Here’s the official required language:  “This letter is to inform you that you will receive a rebate of a portion of your health insurance premiums. This rebate is required by the Affordable Care Act-the health reform law.”

Given that Obamacare is already increasing costs for most patients – insured or otherwise – I wonder who the lucky few will be who get a chance to read the government’s prose.  Moreover, it’s a bit rich to create this “language mandate” when HHS Secretary Kathleen Sebelius had earlier advised insurance companies not to speak against Obamacare’s cost-increasing features.  As the Competitive Enterprise Institute’s Hans Bader put it:

Obama’s HHS secretary sought to gag insurers that disclosed how Obamacare’s mandates are increasing the cost of health insurance, even though such speech is clearly protected by the First Amendment, telling them if they did so, they could be excluded from health insurance exchanges. Prior to that, the Obama administration attempted to gag insurers from disclosing how Obamacare harms Medicare Advantage participants, drawing criticism from First Amendment experts like UCLA law professor Eugene Volokh, the author of two First Amendment textbooks.

Beyond the unseemliness of it all, however, there’s also a constitutional problem:  The government can’t require people to make politicized statements, whether that’s “Live Free or Die” on license plate or the labeling of consumer products where the labels aren’t justified on fraud-prevention or public health grounds.  See some other examples and legal analysis in Bader’s post at CEI’s blog.

The bottom line is that just like the First Amendment stops the government from censoring speech, it stops it from forcing speech.  And just like there’s no “health care is unique” exception to the Commerce Clause, there isn’t one to the First Amendment.

Stop Using Slippery-Slope Arguments? Where Would that End?

Richard Thaler writes in the New York Times:

Justice Scalia is arguing that if the court lets Congress create a mandate to buy health insurance, nothing could stop Congress from passing laws requiring everyone to buy broccoli and to join a gym…Can anyone imagine Congress passing a broccoli mandate law, much less the court allowing it to take effect?

Yes annnnd…yes. Next question.

Surely, the justices have the conceptual resources to draw a distinction between the health care market and the market for broccoli. And even if they don’t, then all the briefs, the zillions of blog posts and a generation’s worth of economic literature can help them.

If drawing a constitutionally meaningful distinction between the markets for health insurance and broccoli is child’s play for Thaler, he should school all the brief- and blog-post-writers who so far have failed. That would have been a more productive use of his thousand words than his build-up to this thesis:

If you are opposed to a policy, state your case based on the merits — not on the imagined risk of what else might happen down the road. The path of that road is so unpredictable that it may even produce a U-turn.

Good grief. Slippery-slope arguments are about principles. As in, “If you concede this principle because you don’t mind the result here, you will no longer have it to protect you against that bad result there.” Thaler’s thesis would lead, for example, to all manner of civil-liberties violations by the state because there simply isn’t enough political support to protect all the civil liberties of various minorities. But Thaler doesn’t want us to think about things like consequences or the future.

The potential for U-turns makes no more sense as an argument against invoking slippery slopes principles, because principled arguments can help generate the U-turn that opponents of, say, ObamaCare want to see.

I take silly arguments like this to be evidence that ObamaCare supporters are in complete panic mode.

Gov. Christie Vetoes ObamaCare Exchange — ‘At This Time’

Today, New Jersey Gov. Chris Christie (R) became the latest governor to throw sand in the gears of ObamaCare, issuing an eleventh-hour veto of a bill to create an ObamaCare Exchange in New Jersey. An excerpt from his veto message:

While I am unwilling to approve the establishment of a statewide health insurance exchange at this time, I am mindful that the requirements of the Affordable Care Act still stand today and I intend to fully oversee New Jersey’s compliance in a responsible and cost-effective manner should its constitutionality ultimately be upheld by the Supreme Court… My Administration will continue this work and stands ready to implement the Affordable Care Act if its provisions are ultimately upheld.

Christie suggests he isn’t yet convinced that Exchanges are per se harmful. He also seems to suggest that if the Supreme Court upholds the law, creating an Exchange might be the best course for the state and that refusing to do so would put the state out of compliance with federal law–neither of which is true. But the veto message contains enough wiggle room for Christie to come out hard against any future ObamaCare Exchange.

Here’s hoping the Supreme Court renders all of this moot.

Big Government Causes Hyper-Partisanship in the Judicial Appointment Process

Earlier this year, the Georgetown Journal of Law & Public Policy hosted a symposium on “Hyper-Partisanship and the Law.” The journal editors graciously invited me to join an august panel on partisanship in the judiciary that included George Mason University Law School’s Todd Zywicki and the U.S. Chamber of Commerce’s Rachel Brand. (Brand ran the DOJ’s Office of Legal Policy, which is responsible for vetting and advising the president on judicial nominees, from 2005 to 2007.)

The symposium video isn’t available online, but the participants were invited to publish their presentations in this summer’s issue of the GJLPP. Zywicki has already blogged about his paper, “The Senate and Hyper-Partisanship: Would the Constitution Look Different if the Framers Had Known that Senators Would Be Elected in Partisan Elections?”

My (short) article is entitled “Big Government Causes Partisanship in Judicial Nominations.” Here’s an excerpt:

In 1962, Byron White’s hearing lasted 15 minutes and consisted of three questions.  Can you imagine that happening now?  Most district court nominees would take that deal.  Is it because of TV and the media and the instant sound bite and the new media with the Internet and social networking and all the rest of it?  Is it because the issues have gotten more ideologically divisive?  I think the answer isn’t really any of these.  It isn’t that there’s been a corruption of the confirmation process, the nomination process, presidential or senatorial rhetoric, or the use of filibusters.  It’s a relatively new development but one that’s part and parcel of a much larger problem: constitutional corruption.

As government has grown, so have the laws and regulations over which the Court has power.  The Court’s power has grown commensurate with the power of Congress, because all of a sudden it’s declaring what Congress can do with its great powers and what kind of new rights will be recognized.   As we have gone down the wrong jurisprudential track since the New Deal, judges all of a sudden have more power behind them and the opportunity to really change the direction of public policy more than they ever did.

Read the whole thing (not yet in the final format). My presentation largely tracked some of the points Roger Pilon made in his seminal (and now decade-old) paper, “How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees.” You should read that too.

Did You Read the Federalist Papers in College? Grad School? Law School?

In the Wall Street Journal, Peter Berkowitz says you probably didn’t. And it shows:

It would be difficult to overstate the significance of The Federalist for understanding the principles of American government and the challenges that liberal democracies confront early in the second decade of the 21st century. Yet despite the lip service they pay to liberal education, our leading universities can’t be bothered to require students to study The Federalist—or, worse, they oppose such requirements on moral, political or pedagogical grounds. Small wonder it took so long for progressives to realize that arguments about the constitutionality of ObamaCare are indeed serious.

Explains a lot, really.