For months, we at the Constitutional Accountability Center have been taking on Tea Party activists and their rampant distortions of the Constitution.  We've explained that the Tea Party version of a virtually powerless federal government bears little resemblance to the government created by our actual Constitution and in many important ways is inconsistent with the real Constitution's text and history.  We've warned that Tea Party rhetoric, while evoking the spirit of our Nation's Founders, in fact threatens some of the constitutional values Americans cherish most.

Now the Tea Party's dangerous constitutional vision has found its way into a judicial ruling.  This week, federal District Judge Henry E. Hudson, a nominee of President George W. Bush, echoed the popular Tea Party meme that Congress has no authority to compel individuals to purchase health care, and that the minimum coverage provision in the Patient Protection and Affordable Care Act is therefore unconstitutional.  From Judge Hudson's December 13 opinion:

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. ... In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution].

But as our Chief Counsel Elizabeth Wydra points out:

Judge Hudson's ruling is a constitutional outlier that should not stand on appeal. The ruling is not only inconsistent with the rulings of the two other federal judges who have already considered the merits of the minimum coverage provision and found it constitutional, the ruling is also out of step with over 200 years of Supreme Court precedent on the powers of Congress.  In particular, the requirement that individuals maintain a minimum level of health insurance coverage or pay a tax penalty falls squarely within Congress's constitutional authority to regulate interstate commerce, including actions-such as the decision not to buy health insurance-that substantially affect interstate commerce.

CAC has been at the forefront of this issue, explaining how the text and history of the Constitution support health care reform, refuting Tea Party claims about federal power, and defending the constitutionality of the historic health care law by filing a "friend of the court" brief on behalf of 78 State Legislators from 27 states in November.  CAC's brief in the lawsuit filed in Florida by a group of 20 conservative state politicians, Florida v. HHS, shows that the Constitution creates a vibrant system of federalism that gives broad power to the federal government to act in circumstances in which a national solution is necessary or preferable, while reserving a significant role for the states to craft innovative policy solutions that showcase the diversity of America's people, places, and ideas.  Far from violating state sovereignty or the principles of federalism in our Constitution, the health care reform law respects the federal-state partnership and builds upon it. 

Fortunately, Judge Hudson's health care ruling based on the Constitution According to the Tea Party is an isolated decision -- two other federal judges have upheld the constitutionality of the minimum coverage provision based on the overwhelming weight of Supreme Court precedent in support of Act.  Time will tell if the judge presiding over the Florida lawsuit, which is the most comprehensive of all the challenges raised against the health care law, will decide that case based on our actual Constitution or the Constitution According to the Tea Party.  (Oral argument in the Florida lawsuit was held Thursday, December 16.)  In the health care reform debate, as elsewhere, CAC will continue to stand up for the progressive promise of our Constitution and fight back against constitutional distortions by the Tea Party and its allies. 

Efforts by the Tea Party and others to promote unwarranted activism by conservative judges are hardly new.  Indeed, for nearly two decades, a corporate-funded organization calling itself Foundation for Research on Economics and the Environment (FREE) has been hosting expense-paid trips for federal judges at dude ranches and resorts in Montana promoting "free market environmentalism" and other corporate-friendly positions on the Constitution and the law.  Community Rights Counsel, CAC's predecessor organization, helped expose FREE's operation and successfully pushed for rules, announced by Chief Justice John Roberts, that require FREE to provide judges with information about their funding sources and require judges taking their trips to publicly report this within 30 days.

Last week, Constitutional Accountability Center continued CRC's work in this area, sending letters to three federal judges who sit on FREE's Board of Directors -- Judge Alice M. Batchelder (6th Circuit), Judge Danny Boggs (6th Circuit), and Judge Edith Brown Clement (5th Circuit) -- asking that they resign from FREE's Board immediately. 

As we stated in our letters, resignation is compelled by an ethics opinion issued by the Committee on Codes of Conduct of the Judicial Conference of the United States - the federal judiciary's own ethics office -- in which the Committee expressly states that service by a federal judge on FREE's Board  violates two provisions of the Code of Conduct for United States Judges.  Among other things, the Committee has declared that such service violates Canon 5B of the Code, which prohibits a judge from participating in activities that "reflect adversely upon the judge's impartiality, because FREE espouses particular points of view on controversial public issues frequently before the courts, and . . .  a Board member would reasonably be perceived as personally supporting these positions."  Although issued in March 2005, the opinion was not publicly released until December 7, 2010, when it was published as part of the record of the April 2009 confirmation hearing of Andre M. Davis, then a District Judge in Maryland who had been nominated to the United States Court of Appeals for the Fourth Circuit.

In 2004, Judge Davis was one of four federal judges serving on FREE's Board.  Community Rights Counsel filed ethics petitions against Judge Davis and the three other judges in connection with their service on FREE's Board -- Judge Boggs, Judge Douglas Ginsburg (D.C. Circuit), and Judge Jane Roth (3rd Circuit).  Judge Davis sought an advisory ethics opinion from the Committee as to the propriety of his service on FREE's Board, and received the March 2005 opinion discussed above, which concluded that such service was improper.   After receiving the ethics opinion, Judge Davis resigned from the Board, giving no public explanation.  A day later, Judges Ginsburg and Roth followed Judge Davis' lead and also resigned from the Board, but Judge Boggs remained on the Board, even after the existence of the opinion became known in 2007.  Judge Boggs still serves on the Board, and Judges Batchelder and Clement joined the Board sometime after the Committee issued its opinion.

After we sent our letters last week to those three judges seeking their resignation from FREE's Board, Dr. John Baden, FREE's Chairman, told the Associated Press that "Of course they knew about it" when asked whether the judges were aware of the ethics opinion.  Remarkably, this means that the judges are aware of the Committee's conclusion that their service on FREE's Board violates the Code of Conduct and serve nonetheless.  This is an extraordinary admission, which highlights something most Americans surely do not know about the federal judiciary -- that unlike every state judiciary in the nation, the federal judiciary has a Code of Conduct that is completely self-policing and unenforceable.

And so we wait to see -- will the three judges who sit on FREE's Board resign, or will they continue to serve, despite the ethical violations?

Please visit our blog for the full background on, and future developments in, this widely-covered story.

The Demise of California's Proposition 8?  Marriage Equality Fares Well in Appeals Court

As we reported in last month's newsletter, in October, CAC filed a brief in the United States Court of Appeals for the Ninth Circuit in Perry v. Schwarzenegger, asking the court to uphold the District Court's ruling that California's Proposition 8 -- the ballot measure that amended the state Constitution to deny same-sex couples the right to marry -- violates the 14th Amendment of the U.S. Constitution. On Monday, December 6, the Ninth Circuit heard oral argument in the case, and CAC's Vice President, Judith Schaeffer, and Chief Counsel, Elizabeth Wydra, provided expert commentary on the remarkable and nearly three-hours-long hearing as it took place, via live-blog on the Huffington Post.

Elizabeth later recapped the oral argument on Huffington Post, and explained the arguments surrounding the two main issues before the Ninth Circuit:  1) whether the sponsors of Prop 8 have standing to appeal the District Court's ruling; and 2) whether Prop 8 is constitutional.

On the first issue, the Ninth Circuit panel -- Judge Stephen Reinhardt, Senior Judge Michael Daly Hawkins, and Judge N. Randy Smith -- expressed concern over whether the Prop 8 supporters had legal standing to appeal the lower court's ruling, in light of a unanimous Supreme Court decision in another case in which the Court said that it had "grave doubts" that the sponsors of a ballot measure had such standing.  Although Governor Arnold Schwarzenegger and Attorney General (and now Governor-elect) Jerry Brown were named as defendants in Perry, both declined to defend Prop 8, and the measure's sponsors were permitted to intervene in the District Court to provide a defense.  The question now is whether they have standing to appeal.  This issue is of course important; if the Ninth Circuit holds that the Prop 8 sponsors lack standing to appeal, the court will never reach the question of whether Prop 8 is constitutional, leaving in place the District Court's ruling that it is not.

On the second issue, the panel of judges seemed sympathetic to the argument that Prop 8's denial of marriage equality is unconstitutional.  Charles Cooper, counsel for the Prop 8 sponsors, had a difficult time articulating any rational reasons for the measure.  Cooper pressed well-worn "procreation" and family arguments, arguing that the state has an interest in encouraging marriage of opposite-sex couples so that children will be born into two-parent homes.  However, Judge Reinhardt pointed out that Cooper's argument might be a good one for outlawing divorce, but doesn't appear to have any bearing on whether gay and lesbian couples should also be able to get married.  Moreover, the trial court judge found as a matter of fact that the sexual orientation of a child's parents has no bearing on whether that child will thrive.

Significantly, the judges through their questions explored the possibility of a ruling that would affirm the lower court's decision holding Prop 8 to be unconstitutional, but on the narrower ground that Prop 8 had taken away a right -- the right to marry -- that same-sex couples had (briefly) enjoyed in California prior to its passage.  Since the state's domestic partnership laws give same-sex couples all the state law rights of marriage without the title, Prop 8 could only be explained by animus toward gay men and lesbians, and thus unconstitutional under the Supreme Court's decision in Romer v. Evans.

Ted Olson, co-counsel along with David Boies for the gay and lesbian couples challenging Prop 8, acknowledged that precedent would support a ruling striking down Prop 8 on these grounds, but also refused to give up the point that the Constitution protects the right to marry in and of itself (that is, regardless of whether the ballot measure had taken away a previously existing right).   As Olson explained, marriage discrimination cannot be justified under any standard of constitutional analysis.  This is a powerful point, and not just because it was eloquently made by Ted Olson, George W. Bush's Solicitor General and one of the most famous conservative lawyers in the country.

A ruling in this case could take anywhere from three months to a year.

Read Elizabeth's full analysis of the oral argument here, and check our blog for the latest news on this historic case. 

CAC's litigation program has had a busy and productive fall, as we filed briefs in seven cases.  In the Supreme Court this Term, we've filed briefs in Williamson v. Mazda Motor Co. (defending state remedies that enhance consumer safety against implied preemption); AT&T v. Concepcion (arguing that the Court's recent pro-arbitration "policy" should not trump constitutional and statutory text and history, and defending state laws that aim to hold corporate wrongdoers accountable); and FCC v. AT&T (demonstrating that corporations have been treated differently than individuals in terms of privacy rights and asserting that corporate artificial entities should not receive "personal privacy" protections under the Freedom of Information Act). 

We have also been involved in important cases making their way through the lower courts.  In the Ninth Circuit, we filed briefs in Perry v. Schwarzenegger (demonstrating how the text and history of the Equal Protection Clause support marriage equality) and United States v. Arizona (arguing that Arizona's anti-immigration law, S.B. 1070, is preempted by the Constitution's grant of exclusive power to the federal government to regulate immigration and naturalization, as well as citizenship).  Finally, we filed briefs in two district court cases that raise crucially important constitutional questions: Florida v. HHS (defending the constitutionality of the historic health care reform law on behalf of a bipartisan group of state legislators from across the country) and Shelby County v. Holder (explaining how the text and history of the Fifteenth Amendment authorize Congress to enact prophylactic measures under the Voting Rights Act to ensure that the constitutional right to vote free from racial discrimination is not infringed). 

We anticipate rulings in most if not all of these cases in the next few months, and will have updates on Text & History and the litigation section of our website.

VA Judge Echoes the "Constitution According to the Tea Party" in Health Care Ruling

Constitutional Sleight of Hand from George F. Will

Will FCC v. AT&T be Citizens United, Part II?

The True History of the Seventeenth Amendment: A Reply to Todd Zywicki