Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.
Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.
“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”
The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.” Continue reading “Important Points Won Even as ACA Case Was Lost, Paul Clement Says”
Friday’s deadline, November 16, calls for each state, including Wisconsin, to give the federal government a “blueprint” for a Health Information Exchange. State exchanges compare the benefits and costs of insurance policies and post the results online so people and employers can choose which are the best values for them. They will also make electronic patient records accessible for treatment and research for the public health. As I noted in my election-eve blog post, exchanges (also called HIEs) are central to health care reform by making better consumer choices possible.
State blueprints would resolve such choices as whether the exchange will be a private non-profit company or a state agency, and what consent and protections are in place for patient privacy. Overall, a state can choose whether its exchange will be run by the state, in a partnership with the federal government, or by the federal government. If a state doesn’t provide a blueprint, its exchange will be formed and run according the rules and models in federal regulations that will be issued soon. Continue reading “The Health Information Exchange Deadline”
In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system. One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.” The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.
One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas. Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970′s. In that decade, guilty plea rates hovered between 77% and 82%. After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009. But this, apparently, is not a new phenomenon. Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial. That’s right, only nine trials in three years, or 1.5 criminal trials per judge per year. (Eight of these trials, by the way, took less than one full day to try.) The guilty plea rate in adjudicated cases was over 98%.
After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%. (See Ron Wright’s helpful data compilation here.) So, Connecticut seems not to have been terribly atypical.
The Connecticut data are, in fact, quite reminiscent of a modern“fast-track” plea-bargaining system. Continue reading “Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different”
This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.
Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.
The most obvious domestic example involves the respective authority of the federal and state governments. Continue reading “The Criminal Jurisdiction of Indian Tribes”
Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.
The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.) Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.
The appellants’ arguments have a familiar ring to them. Continue reading “Cockfighting, Congress, and Interstate Commerce”
After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir. After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted. Stevens clerked for Wiley Rutledge, after earning the highest GPA in the history of Northwestern Law School, during the 1947 – 48 Term when Fred Vinson was Chief Justice. Stevens was in private practice in Chicago, sometimes teaching antitrust law at the University of Chicago, when Earl Warren presided over the Court. It was during this time, however, that he argued his only case before the Court. In Five Chiefs, he notes that the most memorable aspect of his experience as an advocate before the Court was the sheer proximity of the Justices. Though the distance between the lawyer and the bench is over six feet, Stevens felt sure that “Chief Justice Warren could have shaken my hand had he wished.”
Details like this provide an inside glimpse of the Court. Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument. Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him. Continue reading “John Paul Stevens’ Restraint”
“Severability” doctrine holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. The doctrine figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. And the doctrine is powerful because the viability of large statutory schemes can hinge entirely on whether an unconstitutional component is severable.
But while important, severability is in many ways perplexing and underexplored. No one has come up with a fully satisfying test for determining when severance is appropriate. And no one, as far as I can tell, has critically examined choice-of-law rules pertaining to the doctrine’s application. Continue reading “Severability and the Erie Doctrine”
The largest newspaper in Wisconsin, the Milwaukee Journal-Sentinel, continues to take the editorial position that the public’s right to recall elected officials should only be exercised in cases of misfeasance in office or of criminal conduct. The editorial page actively disparages the use of the recall process in cases where voters simply disagree with the policy choices of their elected representatives. Recent examples of this editorial position can be seen here, and in the decision to excerpt a similar editorial published by the newspaper USA Today here. On this past Sunday, Steven Walters commented in the Journal-Sentinel on possible amendments to the Wisconsin Constitution intended to modify the existing recall provisions and to bring them into line with the more limited scope advocated by these editorials.
I have commented on this issue before. The editorial position of the Milwaukee Journal-Sentinel is misguided. In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country. The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.” Continue reading “The Constitutional Right of Recall”
A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.
For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.
In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)
Mandel contested the jurisdictional issues on appeal, but to no avail.
Continue reading “Trying to Hire a Hit Man? Don’t Answer Your Cell Phone”
That insurance regulation rests primarily with the fifty states has become axiomatic and even cliché. Around the country are operational state insurance commissions, and for much of the twentieth century, the federal government has let these agencies be. The Employee Retirement Income Security Act’s (ERISA) sweeping preemptive force is cabined by a savings statute that allows the business of insurance to escape federal employee benefit plan regulation. And the McCarran-Ferguson Act, generally speaking, provides that three comprehensive federal statutes sanctioning anti-competitive, unfair, and deceptive market activity—namely the Sherman Act, the Clayton Act, and the Federal Trade Commission Act—do not reach the insurance industry inasmuch as the business of insurance is regulated by the states.
This state-centric arrangement has come under fire in the last couple of decades, with the federal government staking its ground regulating insurance first around the periphery and then increasingly at the core of the insurance industry. Some federal statutes make certain practices with certain aspects of an application for or policy of insurance illegal, whether proscribing genetic discrimination, as the Genetic Information Nondiscrimination Act (GINA) does, or limiting the pre-existing condition as the Health Insurance Portability and Accountability Act (HIPAA) did. Also regulating health insurance at the federal level is the monumental Patient Protection and Affordable Care Act of 2010 (PPACA or “Obamacare” as it is more popularly known). The PPACA statutorily mandates that some health insurance policies and group health plans eliminate certain provisions altogether, such as lifetime limits on health benefits and the pre-existing condition limitation. Perhaps even more radically, the PPACA delegates authority to the Department of Health and Human Services to regulate the contents of health insurers’ and plans’ summary of benefits and even the policies themselves. Continue reading “Measuring the McCarran-Ferguson Act’s Antitrust Immunity”
Earlier today, in Bond v. United States (No. 09-1227), the Supreme Court ruled that the defendant should have been permitted to raise a Tenth-Amendment challenge to the chemical-weapons statute that she was convicted of violating. In response to her indictment for violating 18 U.S.C. § 229, Bond had argued
that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.
The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.
In reversing this decision, the Court did not address the merits of the objections. As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.” Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute. Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.
Cross posted at Life Sentences Blog.
November 2 is fast approaching, and the nation is awaiting the election results to see whether the Tea Party Movement will be revealed to be a force in American politics or an over-hyped media sensation. This week’s “Best of the Blogs” feature provides everything a political junkie needs to learn more about the Tea Party Movement.
The obvious starting point might be Butch Cassidy’s (or Paul Newman’s) famous question, “Who are those guys?” Amy Gardner at the Washington Post tries to answer that question here (hat tip to Steven Easley). Despite her best efforts, a definitive picture of the Movement remains elusive:
[A] new Washington Post canvass of hundreds of local tea party groups reveals a different sort of organization, one that is not so much a movement as a disparate band of vaguely connected gatherings that do surprisingly little to engage in the political process. Continue reading “Best of the Blogs: One Lump or Two?”