Rediscovering the Privileges or Immunities Clause

The Privileges or Immunities Clause of the Fourteenth Amendment has been largely dormant since the Slaughterhouse Cases of 1873.  Courts generally treat the Clause as adding little or nothing to the Fourteenth Amendment’s two better-known provisions, the Equal Protection and Due Process Clauses.  However, Bruce Boyden argues  in a new paper on SSRN that the Clause actually does have a distinctive role to play in constitutional doctrine, specifically, by regulating conflicts between states over competing “status regimes.”

As Bruce explains, America’s prototypical “status regime conflict” related to the rights of northern blacks who traveled to pro-slavery states prior to the Civil War.  Much litigation resulted from the refusal of some southern and western states to recognize the rights of such travelers.  Based on a review of the debates arising from these antebellum cases and the history surrounding the adoption of the Privileges or Immunities Clause, Bruce argues that the Clause was intended to ensure that interstate travelers could retain the legal status they enjoyed in their home states notwithstanding entrenched national divisions over legal status questions.

For Bruce, the ongoing significance of this history is that the Privileges or Immunities Clause should continue to be seen as a device for resolving status regime conflicts. 

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The Constitutionality of Health Reform’s “Individual Mandate”

 

As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”).  Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds.  Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution.  The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate.  Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear. 

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You Have the Right to Remain Silent

This morning I spent an hour debating David Cole of Georgetown on Wisconsin Public Radio. The question was whether we should read Miranda rights to suspected terrorists. Not a lot of sparks. I tend to believe that the public safety exception to Miranda should be broad enough to include (in some way that requires further definition) questioning undertaken to protect the public from an ongoing terrorist operation or to determine that there is no such ongoing operation. I don’t agree that Miranda is completely off the table just because the suspected charge is terrorism. While Professor Cole wants a more immediate geographically bound exception that I’d draft, the devil is in the details.

On more fundamental level, it doesn’t seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.

I would have preferred to discuss  Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which Professor Cole represents the plaintiffs.

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