Perry v. Schwarzenegger and the Slippery Slope

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve.

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Best of the Blogs

Is American law too complex?  PrawfsBlawg featured an interesting exchange on this question last week.  Eric Johnson initiated the exchange with this post, in which he observed:

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it’s not there. It’s so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

. . .

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

In addition to a lively string of comments (including a couple by our own Rick Esenberg), Eric’s comments also prompted a thoughtful responsive post by Paul Horwitz.  

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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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