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Here is the complaint (PDF). I took a cursory glance and have little respect for the constitutional arguments against the mandate, though they clearly have more political potency. More plausible is the argument regarding the imposition of duties upon State officials:
The Act requires states to expand massively their Medicaid programs and to create exchanges through which individuals can purchase healthcare insurance coverage. The federal government is to provide partial funding for the exchanges, but will cease doing so after 2015. [. . .] The federal government will not provide necessary funding or resources to the states to administer the Act. Nevertheless, states will be required to provide oversight of the newly-created insurance markets, including, inter alia, instituting regulations, consumer protections, rate reviews, solvency and reserve fund requirements, and premium taxes. States also must enroll all of the newly-eligible Medicaid beneficiaries (many of whom will be subject to a penalty if they fail to enroll), coordinate enrollment with the new exchanges, and implement other specified changes. The Act further requires states to establish an office of health insurance consumer assistance or an ombudsman program to advocate for people in the new programs.
The GOP State AGs will argue this runs afoul of Printz. The complaint states:
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The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.
This sounds pretty in that "majesty of the law" sort of way, but is it true? Not really. I'll explain on the flip.
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[T]he Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems. - President Obama on the Citizens United decision.
[I]t has become one of the most pervasive myths in our political discourse: namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners. [. . .] That is blatantly false, and anyone making that claim -- as Susan Collins and so many others have -- is either extremely ignorant or extremely dishonest
Justice Alito and many conservatives have taken issue with President Obama's statement about Citizens United. Perhaps their views are rooted in the false myth Greenwald alludes to. In his dissent in Citizens United, Justice Stevens wrote:
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Rep. Chris Van Hollen said Monday that Democrats are crafting legislation to prevent foreign owned corporations from funneling money into American political campaigns [. . .] "There's a big danger that the decision opens the door to foreign owned corporations indirectly spending millions of dollars to influence the outcome of U.S. elections through their American subsidiaries," Van Hollen, D.-Md., told ABC News. "The American people should be deeply concerned. This decision raises all sorts of questions."
Forget for a moment the difficulty of determining what corporation is "foreign-owned," would such a restriction be constitutional under Citizens United? Not given the "First Amendment protects speech, not the speaker" logic of Citizens United. Of course this contortion will not be difficult for the radical and reactionary Roberts Court, but it certainly would shoot a hole through the decision's logic, such as it is.
Speaking for me only
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NYTimes: Which president would you say most violated laws enacted by Congress?
[YOO]: I would say Lincoln. He sent the Army into offensive operations to try to stop the South from seceding. He didn’t call Congress into special session until July 4, 1861, well after this had all happened. He basically acted on his own for three months.
The interesting thing about this is Yoo claimed that Lincoln's actions were consistent with the Constitution. I do not recall him ever claiming Lincoln's actions violated laws enacted by Congress. I wrote about this issue back in 2005:
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while we ought to be alarmed by the various ways in which the government is attempting to go under, over, and around our Bill of Rights, the battle will never be “won.” The price of liberty is eternal vigilance.
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Senator Jefferson Beauregard Sessions, III has proposed an extraordinary Constitutional theory - that 14 Senators have the power to amend the Constitution. First, let us revisit Sessions' views on Senate confirmation of judicial nominees:
“One of the many reasons why we shouldn't have a filibuster, an important one, is Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote and simply 'advise and consent' on nominations,” he said in a 2003 floor statement. "Historicaly, we have understood that provision to mean -- and I think there is no doubt the Founders understood that to mean -- that a treaty confirmation requires a two-thirds vote, but confirmation of a judicial nomination requires only a simple majority vote."
While this reading of Article I is not supported by the text, what is really extraordinary is Sessions' views on how the Constitution can be amended:
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The United States Supreme Court has repeatedly warned that “government may not promote or affiliate itself with any religious doctrine or organization.” .... This limitation on government action is based on the clear understanding of our founders that “a union of government and religion tends to destroy government and to degrade religion.”
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David Vitter does not like that the Census counts all the "Persons" in the United States:
Sen. David Vitter (R-La.), who is sponsoring an amendment to an appropriations bill that would require illegal immigrants list their status on next year's Census, said late Wednesday that Senate Majority Leader Harry Reid (D-Nev.) wants them counted amongst the general population instead. The senator claimed that Reid wants illegals to be counted in the 2010 Census so that left-leaning states with high illegal immigrant populations could increase the size of their congressional delegations.
Senator Vitter does not like them brown people being counted. Unfortunately for him, the Constitution provides that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State [. . .]"
So much for originalism (though Vitter seem unable to read English as he has said "“I don’t believe that this is what our founding fathers had in mind when they laid out our current system of representation[.]” BTW, what do the Texans have to say about this?
Speaking for me only
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Radley Balko accuses those of us who ridicule the modern day John C. Calhouns in the Republican Party (see, e.g., Rick Perry and Tim Pawlenty arguing they can nullify federal legislation) as not taking the Tenth Amendment seriously. the problem with Balko's argument is twofold - (1) the theory of nullification was decided in 1865, when the North won the Civil War; and (2)the Tenth Amendment does not say what he thinks it does. Balko says we can look it up. Indeed we can. Here is what the Tenth Amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The text makes clear that the key analysis is what powers were "not delegated to the United States." In essence, the Tenth Amendment is irrelevant to the argument. It is not "states rights" via the Tenth Amendment that determine whether the Congress can act, it is the rest of the Constitution that is at issue. Of course the main issues, given the jurisprudence, is the Commerce power. Tenthers like to ignore Gibbons v. Ogden, where Chief Justice John Marshall wrote:
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Washington and Oregon have assisted suicide laws that were passed by voters' referendums.
Montana is different. It rewrote its Constitution in 1972, and here are some of the rights it spelled out:
- All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.
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Orin Kerr writes in defense of stare decisis and I agree with his argument but it brought me to the question I present in the title.
As Al Franken might say, 'are the words stare decisis in the Constitution?' The answer is no. But a common law Judicial Branch IS in the Constitution. I would argue that the Constitution did indeed envision the principle of stare decisis. Which puts me in my mind of this article arguing that Justice Souter was one of our great common law Supreme Court Justices.
This is an Open Thread.
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Gov. Rick Perry, raising the specter of a showdown with the Obama administration, suggested Thursday that he would consider invoking states’ rights protections under the 10th Amendment to resist the president’s healthcare plan, which he said would be "disastrous" for Texas.
Not since Andrew Jackson and John C. Calhoun grappled over tariffs have we seen a State claim the right to "nullify" a federal law. But Republicans seem capable anything these days. Hell, the Roberts Court might even uphold such a claim.
Speaking for me only
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The John Ashcroft-Alberto Gonzales Justice Department advanced an obvious agenda: expand federal executive branch power while limiting the ability of individuals to resist its exercise. On his last day in office, Michael Mukasey furthered that agenda by stripping immigrants of a right that the Board of Immigration Appeals has protected since 1988 and that seven federal courts of appeals recognize: the right to the effective assistance of counsel in immigration proceedings. As a matter of "administrative grace," Mukasey generously [sarcasm alert] granted immigration judges the discretionary power in exceptional cases to reopen a hearing and grant relief to an immigrant who was prejudiced by his attorney's ineffective representation, provided the immigrant complies with the burdensome new procedures and heightened standard of proof that Mukasey put in his way. As a failsafe measure to assure that an immigrant won't prevail if the Justice Department wants him gone, Mukasey's decision allowed the Department to carry out the deportation while the immigrant's request to reopen a hearing is pending.[more ...]
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Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How [will] arguments of this kind . . . affect proposals to “incorporate” the second amendment[?] - Judge Frank Easterbrook
Sandy Levinson discusses the issues I wrote about yesterday - the dissonance between the insistence by extreme conservatives that the individual 2nd Amendment rights discovered by the Roberts Court in Heller be incorporated into the Due Process Clause of the 14th Amendment and their stated commitment to the New Federalism. Levinson writes:
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