February 27, 2010
February 24, 2010
Letter on ObamaCare Legal Issues
February 24, 2010
The Honorable Mitch McConnell
The Honorable Jon Kyl
United States Senate
Washington, DC 20510
The Honorable John Boehner
The Honorable Eric Cantor
United States House of Representatives
Washington, DC 20515
Re: Legal issues in health care reform
Dear Senators McConnell and Kyl and Representatives Boehner and Cantor,
We and the organizations we represent are united by our concerns about the constitutionality and legal consequences of the health care bills passed by the Senate and House and supported by President Obama. We respectfully ask that you and your colleagues raise these important concerns with the President and members of Congress who support the bills during the February 25 health care summit and during the national debate over health care reform.
Our concerns about the constitutionality of the bills center on the individual health insurance mandate. Attorneys among us have analyzed the issue and concluded that requiring Americans to buy health insurance does not fall within the powers granted to Congress by the Constitution.
Moreover, our analysis indicates that if the House or Senate bill were to be enacted and upheld by the courts, the result would be a trial lawyer-driven explosion of health care and insurance litigation. In other words, not only do these bills fail to constrain trial lawyers’ drain on the health care system, they actually make the problem substantially worse.
We have attached two documents which detail the basis for our concerns. One is a memo by the Conservative Action Project headed by former Attorney General Edwin Meese. The other is a Wall Street Journal op-ed. They are also available at the links below. We encourage you to share these materials with other members of Congress and the President.
In sum, we are convinced that the constitutionality and legal consequences of health care reform are far too important to be side issues at the health care summit and in the larger health care debate. Members of Congress and the President owe it to the American people to address these concerns directly. Therefore, we urge you and your colleagues to bring the legal issues to the forefront this week and beyond, and we stand ready to provide any help you need.
Jane Orient, M.D.
Association of American Physician and Surgeons
Founder & President
Galen Institute (for identification purposes only)
former member, Medicaid Commission
former member, National Advisory Council of Healthcare Research & Quality
Arkansas State Representative (District 31)
Adjunct Professor of Law
University of Arkansas at Little Rock, Bowen School of Law
U.S. Commission on Civil Rights
Dr. John C. Eastman
Professor of Law and Former Dean
Chapman University School of Law
(candidate for California Attorney General)
former official, Reagan and George H. W. Bush Administrations
Hans von Spakovsky
Federal Election Commission.
Winthrop Research Professor of History
Dr. Richard Land
Southern Baptist Ethics & Religious Liberty Commission
Alfred S. Regnery
The American Spectator
Colin A. Hanna
Let Freedom Ring
Committee for Justice
Mario H. Lopez
Hispanic Leadership Fund
60 Plus Association
Concerned Women for America
National Tax Limitation Committee
Liberty Center for Law and Policy
Chairman & CEO
American Civil Rights Union
Coalition for a Fair Judiciary
President & Chief Counsel
Liberty Legal Institute
Founder & Chairman
American Family Association of Indiana
Richard W. C. Falknor
Maryland Center-Right Coalition
Dr. William Greene
C. Preston Noell III
Tradition, Family, Property, Inc.
Freedom Research Foundation
February 20, 2010
McDonald, Privileges or Immunities, and Pandora's Box
The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.
This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.
In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.
In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.
In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.
What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property - independent of its enumeration in the Second Amendment - was considered a privilege or immunity of citizenship in 1868.
Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities Clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only by correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.
February 19, 2010
The Progressive Fallacy on Free Speech
But the granddaddy of all progressive errors – the one that breeds all others -- is the assumption that greater government power can rectify the problem of unequal citizen power. Government can only act as a “countervailing force” in this regard if it is not acting already to serve corporate and special interests. But it is. That is why new government powers merely augment, rather than offset, the already disproportionate power of entrenched interests.
The biggest, baddest corporations, unions, and special interests already use government to exert power on their behalf. With the heft of the state behind them, they can swing sweetheart deals (witness earmarks) and they can foil upstart competitors (through regulation) who might otherwise eat their lunch. A government unhindered by limits retains the discretion to pick winners. A government that can make or break great fortunes invites a bruising and wasteful competition for its favor. It cannot be surprising, then, that those with the most -- thus most to lose -- assiduously seek favor from the state. It should not be surprising that those with powerful Washington connections are handsomely compensated by big special interests. And it should not be surprising when the well-connected exploit their relationships with people in power in the same way they maximize any other valuable asset.
Progressives are right to worry about corporatist government. But they locate the problem in the wrong place, which is why their proposed solutions repeatedly miss the target. It would be a great tragedy for democracy if a commonsense reading of the First Amendment’s protection of free speech truly undermined democratic freedom. Thankfully, it does not. Ultimately, the Citizen’s United case will change very little about how our political system works. Election-season speech was never the chief means by which special interests did their dirty work. But in some modest measure, the decision actually sets the right example. By limiting government power, it protects our freedom.
February 18, 2010
Think about it. Though Obama has struggled to find his footing in the White House, his education, temperament and experience make him ideally suited to lead the liberal wing of the court, especially at a time when a narrow conservative majority seems increasingly intent on challenging progressive economic reforms for the first time since the New Deal. Obama is clearly eager to take on the four truly conservative justices -- Samuel Alito, John Roberts, Antonin Scalia and Clarence Thomas -- as his State of the Union smackdown suggests. But as president, he's constrained by that pesky separation of powers. So what better way to engage the fight than to join the bench?Getting to watch Chris Matthews go through another round of leg tingles almost makes me hope Obama tries this.
It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won't run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy. And although, as president, Obama has seemed haunted by the example of his political hero, Abraham Lincoln, on the Supreme Court, he could take up the mantle of the greatest liberal justice of the 20th century, Louis Brandeis, another community organizer with a background in politics. In the end, Obama's legacy on the court might surpass his legacy in the White House.
Rule of Law Key to Mt. Vernon Statement
In comments today, Mr. Levey emphasized that “the Mount Vernon Statement encapsulates CFJ’s core mission of promoting the rule of law, including the Constitution’s limits on the power of the federal government. Moreover, the statement’s reaffirmation of ‘the central place of individual liberty in American politics and life’ stands in sharp and welcome contrast to the collectivism and extra-constitutional notion of group rights that is so fashionable among the intellectual elite.” (emphasis added)
“In recognizing that the ‘federal government today ignores the limits of the Constitution, which is increasingly dismissed as obsolete and irrelevant,’ the Mount Vernon Statement captures the problem of judicial activism borne of a belief in a malleable Constitution,” said Levey. “The evolution of the Constitution through the democratic process of constitutional amendment has been all but forgotten by an elite that would rather impose its values and will on the majority through creative constitutional interpretation in the courts,” Levey explained. “Constitutional interpretation that is based on the intellectual fashions of the day, rather than being grounded in the text and intent of the document and its amendments, is exactly the sort of ‘dangerous deception’ masquerading as ‘change’ that the Mount Vernon Statement warns of.”
“The Mount Vernon Statement emphasizes that ‘[t]he change we urgently need .. is not movement away from but toward our founding principles,’ and that includes a return to the rule of law rather than today’s rule of judges,” Levey added.
Americans who share our belief in limited government based on the rule of law are encouraged to sign the Mount Vernon Statement online at the link below.
February 17, 2010
Why the Left Favors Censoring Speech to "Save Democracy"
After my comments, a law professor is quoted saying that "conservatives" have "turned the First Amendment into democracy's foe." I think this is a very revealing comment, for two reasons.
First, the view that the government should censor the speech of people who do business in the form of corporations is rooted in the idea that free speech is an instrumental good that serves "democracy." That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy. In their view, speech is protected because individuals have the right to express themselves--not because speech has a relationship to democracy. Obviously they understood that free expression was good for democratic decision-making, but their primary concern was protecting the rights of individuals, not with preserving some vague conception of "democratic society."
That vagueness is key to the second point: the notion that it somehow distorts democracy for people who do business in the corporate form to express themselves is rooted in a vaguely idealized notion of what "democracy" means. Modern day Progressives don't think democracy just means the right to vote, or the will of the majority, or what have you; they think it means that the government "serves the people" in some broad sense, and that corporations somehow stand in the way of this. You might think a "democracy" would be a society in which everyone has an equal right to participate, and nobody gets censored, but these Progressives are promoting censorship in the service of a "democracy" in which owners of corporations are not allowed to express themselves or defend their political interests.
February 16, 2010
Stopping the "Corporate Takeover" of Politics, One Corporate-Funded Gala at a Time
When the Congressional Black Caucus wanted to pay off the mortgage on its foundation’s stately 1930s redbrick headquarters on Embassy Row, it turned to a familiar roster of friends: corporate backers like Wal-Mart, AT&T, General Motors, Coca-Cola and Altria, the nation’s largest tobacco company. ...But don't worry. It's all for the kids... oh, wait.
Most political groups in Washington would have been barred by law from accepting that kind of direct aid from corporations. But by taking advantage of political finance laws, the caucus has built a fund-raising juggernaut unlike anything else in town. ...
From 2004 to 2008, the Congressional Black Caucus’s political and charitable wings took in at least $55 million in corporate and union contributions, according to an analysis by The New York Times, an impressive amount even by the standards of a Washington awash in cash. Only $1 million of that went to the caucus’s political action committee; the rest poured into the largely unregulated nonprofit network.
The caucus says its nonprofit groups are intended to help disadvantaged African-Americans by providing scholarships and internships to students, researching policy and holding seminars on topics like healthy living.The story is long but worth the read. Keep it in mind next time you see Democrats screeching about corporate influence in politics.
But the bulk of the money has been spent on elaborate conventions that have become a high point of the Washington social season, as well as the headquarters building, golf outings by members of Congress and an annual visit to a Mississippi casino resort.
In 2008, the Congressional Black Caucus Foundation spent more on the caterer for its signature legislative dinner and conference — nearly $700,000 for an event one organizer called “Hollywood on the Potomac” — than it gave out in scholarships, federal tax records show.
Link and headline from Reason's Hit & Run blog.
February 11, 2010
First Amendment Challenges to Obamacare
That bill allows the withholding of funding to an institution where a researcher publishes findings not "within the bounds of and entirely consistent with the evidence," a vague authorization that creates a tremendous tool that can be used to ensure self-censorship and conformity with bureaucratic preferences. As AcademyHealth notes, "Such language to restrict scientific freedom is unprecedented and likely unconstitutional."
h/t Michael F. Cannon at Cato@Liberty
ObamaCare is Trial Lawyers’ Dream
“That means more money wasted on attorney fees, physicians focused on legal rather than medical considerations, and growing delays in our already-overburdened courts,” warns Mr. Levey. Moreover, he concludes, the “litigation will put Americans’ health in the hands of federal judges who will effectively write health care policy as they divine the meaning of thousands of pages of statutory language and accompanying regulations.” To those who point to socialized medicine in Europe as evidence that ObamaCare won’t be a disaster, Levey responds that “The uniquely American combination of bureaucrats, trial lawyers, and judges running our health care system will prove more costly and deadly than anyone can imagine.”
February 08, 2010
How the Right to Arms Saved the Non-Violent Civil Rights Protesters
I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.
When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus -- faculty and students together -- on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people -- in any time and place -- and they take advantage of fear and weakness.
Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.
The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.
RELATED: David Kopel writing for Reason on the Klan's favorite law: gun control.
WaPo on the NRA/Alan Gura Feud
The attorney for those challenging the laws is Alan Gura, an Alexandria lawyer who successfully argued the Heller case. But the court, without explanation, granted the NRA's request to give its attorney time at the podium as well; the court sliced Gura's time by a third and gave it to the NRA and its recently hired attorney, Paul D. Clement, who was solicitor general in the George W. Bush administration. ...
In arguing to the court that it needed to hear from him, Clement said that only seven pages of Gura's 73-page brief dealt with the due process clause. Because that is the most "straightforward route" to deciding the case -- the other would require the court to overturn three of its precedents, he said -- Clement wrote to the court, "it would be particularly unfortunate if that argument were not adequately presented at oral argument."
Gura bristles at "the suggestion that I wouldn't be prepared to make that argument." He added: "They're not bringing anything substantive to the argument. The NRA is principally interested in taking credit and fundraising." The NRA and Gura's group petitioned the court to hear the review of the Chicago law, and the court picked Gura's argument.
Dems Divided Over Next SCOTUS Nominee
Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition. ...
Without trailblazing liberals like the late Justices William Brennan and Thurgood Marshall on the bench, "the court is getting this completely skewed internal debate about how to think about constitutional law," Prof. Stone said. That's bad for the court and bad for the nation."
Other allies of the president say picking a "Scalia of the left" would be a mistake. A candidate with a sharp liberal record "is such an attractive target for a fight, it could screw up the whole summer," tying up the Senate and further handicapping the Democrats' agenda, said a Democrat familiar with the White House's thinking on judicial nominees.
CFJ Executive Director Curt Levey offers his take:
"The president doesn't have the same popularity he did last summer, and that goes both in terms of the American people giving his nominee the benefit of the doubt, and the Republicans standing up to him," said Curt Levey, executive director of the Committee for Justice, which promotes conservative judges and opposed Justice Sotomayor as too liberal. ...
Another name often mentioned is Diane Wood, 59, an appellate judge at the Seventh Circuit in Chicago. Mr. Levey, citing a dissent Judge Wood wrote involving abortion rights, said she would likely spark a bigger confirmation fight than Ms. Kagan or Judge Garland.
Recess Appointments on the Way?
Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.
But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.
Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have?
February 05, 2010
Supreme Court Vacancies & Citizens United
It may be that urging legislative action was not the President’s only reason for taking on the Supreme Court during his address. Obama may have been throwing the first punch in what is likely to be a huge fight this summer, on the eve of the 2010 elections, over a replacement for Supreme Court Justice Stevens and possibly Justice Ginsburg. While reporting yesterday that “Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring,” an ABC News article observed that
“Last week, when Obama took the nearly unprecedented step of criticizing the court's opinion in a major campaign finance case during his State of the Union speech, some believed he was showcasing for the American people that presidential elections, and Supreme Court nominations count.”The article notes the widespread belief that “Justice Stevens, 89, sent a strong signal of his intention to retire when he confirmed for the Associated Press last fall that he hadn't hired a full complement of clerks for next term,” but cautions that “[s]ources close to Ginsburg dismissed retirement speculation.” Speculation about Justice Ginsburg’s retirement springs from her surgery for early stage pancreatic cancer last February. For pancreatic cancer in the earliest stage – the 10% of cases where the tumor is localized and resectable – the five-year survival rate is 16.4 percent, with a median survival time of 17 months.
Another factor to consider is that Ginsburg, arguably the most liberal of the nine Justices, would assumedly like to be replaced by someone with a similar judicial philosophy. That’s more likely to happen if Ginsburg retires this summer. The chances of confirmation for a very liberal Supreme Court nominee will drop significantly next year if, as expected, the GOP makes big gains in the Senate this November.