Commerce Clause’s Outer Limits

Today’s federal district court ruling that the ObamaCare individual insurance mandate exceeds Congress’s Commerce Clause powers makes this a perfect time to watch Reason Magazine’s excellent video exploring the outer limits of the Clause. The video includes a debate of sorts between constitutionalist law professor John Eastman and living Constitution proponent Dean Erwin Chemerinsky. Chemerinsky, who argues that Congress could require Americans to buy cars under the Commerce Clause, must be very unhappy with today’s decision.

Beware of Narrow ObamaCare Victory

Statement of CFJ Executive Director Curt Levey on today’s ObamaCare decision:

ObamaCare’s individual insurance mandate is unconstitutional. So said a federal court in Florida today in the legal challenge to ObamaCare brought by 26 states. The court’s ruling should come as no surprise after a federal court in Virginia reached the same conclusion last month in the other leading ObamaCare case. The biggest news today is that the Florida court struck down the entire ObamaCare statute after finding that the unconstitutional individual mandate could not be severed – that is, separated – from the rest of the statute’s provisions.

Today’s decision signals, not only that the individual mandate is unlikely to survive its now-inevitable review by the Supreme Court, but also that if and when it meets its demise in the High Court, it is likely to take the entire ObamaCare statute with it. This new reality has very important policy implications for both President Obama and Congressional Republicans.

There is only one thing President Obama can do to ensure the survival of federal health care reform and that is to prevent the legal challenges to the individual mandate from reaching the Supreme Court. He can accomplish that only by negotiating with Republicans to repeal or substantially modify the ObamaCare statute, replacing it with a bipartisan health care reform package that does not include the individual insurance mandate. The result would be to moot and thus derail the legal challenges now hurtling towards the High Court.

Sure, Obama could take his chances on pulling out a win in the Supreme Court. But if things don’t go his way there, he will be left with little leverage to shape – or even pressure Republicans into passing – an alternative health care package, assuming he’s still in office.

The flip side of Obama’s dilemma is Republicans’ temptation to attempt a repeal of just the individual mandate, given that provision’s unpopularity and recognition that a full repeal of ObamaCare is virtually impossible at this time. Congressional Republicans must be cautious here because a successful repeal of the individual mandate would moot and thus doom legal challenges to the entire statute, arguably playing into the President’s hands.

If the individual mandate were the primary reason for conservative opposition to ObamaCare, we would be happy to hand the President a partial victory in which the lawsuits were derailed and ObamaCare minus the mandate were saved. But, as Ken Blackwell and Ken Klukowski have pointed out, “the ultimate goal in challenging the constitutionality of President Obama's health care law is not the mandate.” It’s the whole ObamaCare enchilada.

That’s because the individual mandate is just one of many reasons to oppose ObamaCare. Among the threats posed by the rest of the statute are skyrocketing premiums, increased unemployment due to insurance mandates on employers, draconian cuts to Medicare, a myriad of racial preferences, and the growth of a new federal bureaucracy with life and death power. A partial victory for Obama that leaves all those threats in place is a big loss for the American people.

No Better Compliment for Sen. Lee

John Podesta’s liberal Center for American Progress on Utah freshman Mike Lee joining the Senate Judiciary Committee:

“There’s three things Sen. Mike Lee (R-UT) likes in a sentence: a noun, a verb, and ‘unconstitutional.’ Indeed, Lee has recently claimed that [various federal welfare and nanny state laws] violate the Constitution. Yet Senate Republicans have inexplicably chosen to put Lee on the very Senate committee that has jurisdiction over constitutional questions and the judiciary … [T]he Senate GOP was so eager to put this radical tenther on the Judiciary Committee that it waived a rule prohibiting both of a state’s senators from serving on Judiciary.” (emphasis added)

Imagine that, a senator who considers it his duty to evaluate the constitutionality of federal laws and to uphold the Tenth Amendment. How radical! And the Republicans put him on the Judiciary Committee to boot. That’s really reckless!

Sen. Lee, the SG Nominee & Goodwin Liu

Statement of CFJ Executive Director Curt Levey on the Judiciary Committee, judges and the Solicitor General nominee:

The Committee for Justice applauds today’s announcement that Sen. Mike Lee of Utah will become the newest member of the Senate Judiciary Committee. We also thank Sen. Orrin Hatch (R - Utah) for working to waive the rule that otherwise bars Senate committees from having two Republicans from the same state.

We can think of no better addition to the Judiciary Committee than Sen. Lee. His experience as both a constitutional lawyer and clerk for Supreme Court Justice Samuel Alito gives him the ideal background for the job. And Lee’s keen understanding of the Constitution’s role in limiting federal power grabs and runaway spending makes him the perfect fit for the times.

We particularly look forward to the frank and insightful questions Sen. Lee will ask the President’s judicial nominees when they come before the Judiciary Committee for hearings. There is a bipartisan consensus that many of the people renominated by the President earlier this month are too uncontroversial to merit a new hearing in the new Congress. However, any Committee member – especially new members Mike Lee and Democrat Chris Coons – should be given the opportunity, if requested, to question a particular nominee via a
new hearing.

Were Chairman Leahy to deny Sen. Lee or other Committee members the opportunity to question the more controversial of the repeat nominees – including Goodwin Liu, John McConnell, Louis Butler, and Edward Chen – it would be an embarrassing reversal of both Senate tradition and Leahy’s practice during the Bush Administration. We are hopeful that Leahy will act responsibly here. But if we’re wrong, we trust that Ranking Member Grassley and his Republican colleagues on the Judiciary Committee will do whatever is necessary to defend the right of Sen. Lee to question nominees he will vote on.

Ninth Circuit nominee Liu, an unabashed advocate of judicial activism, is of most immediate concern because of reports that Majority Leader Reid will quickly push to force a confirmation vote on Liu. That would require Chairman Leahy to be complicit by rushing Liu through the Committee. If reports of a rush job are correct, the result will be to blow up what Sen. Chuck Schumer (D - N.Y.) says is “a really strong and bipartisan effort to get many more judges approved.”

Also of concern are reports that President Obama failed to consult with newly elected GOP senators before renominating people from their states to the federal bench. That failure is at odds with the President’s recent attempt to portray a more bipartisan approach to governing. Sen. Ron Johnson of Wisconsin summed up the reasons for concern in a statement earlier this month:

“My understanding of the standard procedure in the judicial nomination process is that the Administration extends the courtesy of consulting the home state Senators before nominating an individual to the courts. It’s unfortunate in this case that the voters of Wisconsin who expressed their wishes on November 2nd were completely ignored.”

Finally, it’s not just judicial nominees we’re worried about. Earlier this week, the President nominated Donald Verrilli to be Solicitor General, the federal government’s top Supreme Court lawyer. While Verrilli has the requisite experience and intellect to be Solicitor General, his liberal background merits close examination by the Senate.

Verrilli clerked for two of the most activist judges in history, Supreme Court Justice William Brennan and DC Circuit Judge Skelly Wright, and he received an award from the ultra-liberal Southern Center for Human Rights. His supporters reassure us that Verrilli’s corporate legal work proves he’s not a liberal ideologue, but corporate representation is the typical career path for ambitious lawyers and thus provides no reassurance about ideology.

Most importantly, Verrilli should be carefully questioned about his leadership of Jenner & Block’s diversity committee at a time when diversity initiatives at top law firms such as Jenner have often degenerated into racial preferences and double standards (see here, here and here). If Obama is serious about being a post-racial president, his Administration must encourage the Supreme Court to enforce the constitutional limits on racial preferences. We need to know if Mr. Verrilli is up to that task.

Advice to New RNC Chair on Civility & Judges

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice congratulates new RNC Chairman Reince Priebus on his election today and looks forward to his tenure as we approach the critical 2012 elections. Priebus will be getting plenty of advice from all quarters, so we limit our advice to these two points. We urge Chairman Priebus 1) to resist allowing political civility in the wake of the Arizona shootings to be defined in a one-sided manner, and 2) to make judicial nominations and the fight against judicial activism high-priority issues during the next two years.

While we welcome the possibility of increased political civility in the coming months, we also see the danger that the definition of “civility” will be one-sided. If it is up to many in the mainstream media, civility will be defined as less criticism of President Obama, his nominees and ObamaCare, as well as diminished advocacy for Second Amendment rights and border security. The definition will not include any abatement in the incessantly repeated charges that Republicans, conservatives and tea party members are racist, violent, homophobic, warmongering, stupid, greedy and otherwise lacking in compassion.

We urge Chairman Priebus to do his part in setting a positive tone for the political debate, while also ensuring that Republicans continue to fight hard for what they believe in and do not allow themselves to be put on the defensive by self-serving definitions of civility.

Turning to the judges issue, the RNC has been helpful but not always energetic about the issue over the last decade. The judges issue – nominations and liberal judicial activism – was one of the keys to GOP electoral success in the election cycles of 2000, 2002 and 2004, and the RNC was a key player. As Karl Rove and independent analysts have explained:

“There's no doubt in my mind that we won races all throughout the country [on the judges issue].” – Karl Rove (2004)

“[The judges issue] was one of Bush's best issues in the campaigns of 2000 and 2004” – Larry Sabato, University of Virginia (2006)

However, in the 2006 and 2008 cycles, the RNC showed less interest in judges and the diminished role of the issue was one of the many factors that contributed to the GOP’s big electoral losses. To the credit of outgoing Chairman Michael Steele, the RNC showed renewed interest in the issue during his tenure.

With the 2012 presidential election approaching, it is critical that Chairman Priebus elevate the judges issue to the level that helped elect and re-elect George W. Bush. Voters are keenly aware that a president’s appointment of Supreme Court and lower federal court judges is one of his most important powers and that it shapes the judiciary long after he has left office. On Election Day 2008, 75% of voters nationwide said that Supreme Court appointments were a factor in their vote for president, and 53% said it was an important factor (CNN).

An even more recent example of the power of the judges issue to motivate voters comes from Iowa, where voters fired three of the state’s Supreme Court Justices in November. Judicial retention elections are almost always rubber stamps. But Iowa voters were angry that, in a defiant act of judicial activism, the Iowa Supreme Court created a constitutional right to same-sex marriage in 2009. Nationwide, Americans believe by an almost 2-to-1 margin that judicial activism “seems to have reached a crisis,” according to a survey by the liberal American Bar Association (4 ABA Journal eReport 40).

2011 Predictions for Law & Politics

2011 marks the tenth year of the Committee for Justice’s commitment to defending the Constitution by advocating for the rule of law and promoting constitutionalist nominees to the federal judiciary and Department of Justice. Each year, at about this time, we quietly speculate about what legal and political developments during the next twelve months will shape CFJ’s agenda within this overall mission. This year, we decided to share our thoughts by releasing the following list of our eleven predictions for 2011. Our predictions should not be confused with what we would like to see happen this year.

Predictions for 2011:

1) Justice Ginsburg will experience health problems, reigniting speculation that President Obama will have the opportunity to name her replacement during his first term. Progressives will quietly hope that Ginsburg resigns in 2011, before election year politics makes confirmation of a decidedly liberal replacement impossible. Nonetheless, progressives will be disappointed because Obama will fill any 2011 (or 2012) Supreme Court vacancy with the relatively moderate DC Circuit Judge Merrick Garland.

2) President Obama will refrain from scolding the Roberts Court in his 2011 State of the Union speech, despite the brownie points he earned among the Democratic base for denouncing the Court’s Citizens United decision during his 2010 State of the Union. Due to last year’s scolding, attendance by Supreme Court Justices at this year’s State of the Union will be down.

3) Stinging from criticism that they did not make judicial nominations a priority in 2009-10 and aware that a Republican president may be filling judicial vacancies in 2013, President Obama and Senate Majority Leader Harry Reid will put nominations on the front burner. Obama will be faster to nominate judges and Reid will do what’s necessary to schedule confirmation votes in the absence of unanimous consent.

4) A showdown between President Obama and House Republicans over withholding funds for implementation of ObamaCare will be averted when Obama reluctantly agrees to support medical malpractice reform.

5) A new House rule that requires every bill to cite the constitutional authority for proposed legislation will help to educate both Congressmen and the public about the limited nature of Congress’s powers. But behavior is hard to change, so we’ll see only incremental progress in changing the reality that Congress never met a bill it liked but rejected as outside its authority.

6) Despite the fears of conservatives that the Obama Administration will go soft on Julian Assange, the Justice Department will indict Assange for violations of the Espionage Act, as well as for receipt of stolen government property.

7) GOP control of the House makes a thorough Congressional investigation of the Justice Department’s handling of the Black Panthers case inevitable. However, interest in the merits of that particular case will wane as evidence uncovered by the investigation shifts the focus to the broader problem – first alleged in 2010 by current and former DOJ attorneys – of Obama appointees at DOJ instructing Voting Section staff not to bring cases with white victims and black defendants.

8) By the end of 2011, the Supreme Court will agree to hear the California gay marriage case, the lawsuits against Arizona’s crackdown on illegal immigrants, and perhaps the challenges to ObamaCare, ensuring that the Court’s 2011-12 term will be one of the most memorable in history.

9) In three of the most closely watched cases argued before the Supreme Court this past fall, the Justices will a) strike down a California statute forbidding the sale of violent video games to children in a decision that unites Justice Scalia and the Court’s liberals; b) uphold an Arizona law revoking the business licenses of companies that hire undocumented workers; and c) uphold another Arizona law giving parents tax credits for tuition at private schools, including religious schools.

10) While the Constitution’s Commerce Clause and the Tenth Amendment will continue to be hot issues in various legal challenges to Obama Administration legislation, less sexy but equally important regulatory challenges will multiply as Obama attempts to bypass the GOP-controlled house by enacting his agenda through broad, aggressive regulations issued by Health & Human Services, the EPA, the FCC and the new Consumer Financial Protection Bureau, among other agencies.

11) Allegations of GOP obstruction of noncontroversial judicial nominees will fade as an issue in 2011 in light of both the easing of the judicial confirmation backlog – after a bevy of lame duck confirmations last month –and more generally, the fact that Senate Republicans never planned to indefinitely delay the confirmation of noncontroversial nominees. However, the five most controversial judicial nominees – Goodwin Liu, Robert Chatigny, John McConnell, Edward Chen and Louis Butler – will not be confirmed in 2011 (or 2012) if they are even renominated by the President.