CAC in the Supreme Court -- a Victory, and a New Case

The past ten days have been very busy and successful for CAC in the Supreme Court, as we scored a win in one case and filed a brief in another.

Last Wednesday, CAC's work in Williamson v. Mazda Motor of America came to a successful conclusion as the Court ruled unanimously in favor of Delbert Williamson and his family, upholding their right to sue Mazda in state court following the tragic death of Thanh Williamson in a crash of a minivan that did not contain a lap/shoulder seatbelt at her seat. Mazda's request to displace state protections for consumer-safety through "federal preemption" was decisively rejected by the Court, continuing a recent trend by the Court to reject preemption claims premised on the assertion that state law represents an "obstacle" to the objectives of federal law (in contrast to preemption claims based on the express words of a federal statute). CAC filed a brief in Williamson arguing that the entire doctrine of "obstacle" preemption is inconsistent with the federal/state balance established by the Constitution, an argument adopted, hook, line, and sinker in a concurring opinion written, surprisingly enough, by Justice Clarence Thomas.

We hope to be equally successful in Arizona Free Enterprise Club/McComish v. Bennett, the most important campaign finance case to be considered by the Court since its ruling last year in Citizens United v. FEC. In McComish, being heard this Term, the Court will decide whether Arizona's public campaign financing program established by the state's Clean Elections Act -- an innovative program that deters political corruption by diminishing candidates' dependence on private contributors -- is constitutional. CAC strongly believes that it is.  

On February 18, 2011, CAC filed a "friend of the court" brief in McComish on behalf of four of the nation's preeminent experts on America's constitutional democracy -- Professors Bruce Ackerman of Yale University, Lawrence Lessig of Harvard University, Zephyr Teachout of Fordham University, and Adam Winkler of UCLA. Drawing on the work of these scholars, our brief demonstrates that the Framers, who were exceedingly concerned about preventing and deterring corruption, crafted innovative, overlapping constitutional provisions designed to combat corruption and the appearance of corruption. Arizona's Clean Elections Act is a pragmatic and workable system of public campaign financing that serves these same purposes and governmental interests. A ruling by the Court invalidating the Arizona law could deliver a fatal blow to public campaign financing. Such a result would be inconsistent with the Constitution's text, history, and structure.  

The Court is scheduled to hear oral argument in McComish on March 28, 2011. For the latest news on this case, including our post-argument analysis, please check our Text & History blog.    

Health Care Reform in the Courts

As readers undoubtedly know, one of the most significant legal issues being considered by federal courts right now is the constitutionality of the Patient Protection and Affordable Care Act, the historic health care reform law enacted last year.  Various challenges to the Act are rapidly working their way through the judicial system; if you are keeping score, overall the rulings are 3-2 in favor of the law.  

The two most recent rulings have come in the past month, as a District Court Judge in Florida struck down the law, while a Judge in the District of Columbia upheld it.  On January 31, 2011, District Judge Roger Vinson (N.D. Fla.) ruled in Florida v. HHS -- a challenge to the Act brought by a group of conservative state Attorneys General and Governors -- that the minimum coverage provision of the Act (referred to by some as the "individual mandate") is unconstitutional, held that this provision could not be severed from the rest of the health care reform law, and proceeded to issue a declaratory judgment striking down the law in its entirety.  According to Judge Vinson, Congress lacked the constitutional authority, including under the Commerce Clause, to adopt the minimum coverage provision.  In so ruling, Judge Vinson departed from the text and history of the Constitution, and distorted the facts that establish the profoundly commercial nature of the decision to forgo health insurance.

In sharp contrast, Judge Gladys Kessler (D.D.C) ruled on February 22, 2011 that Congress did in fact have the power under the Commerce Clause to adopt the minimum coverage provision.  In an opinion that properly applied the pertinent constitutional text and Supreme Court precedent, Judge Kessler concluded that the decision not to purchase health insurance is an economic activity, one that, in the aggregate, has a substantial effect on the national health care market, and that Congress therefore had the power under the Commerce Clause to adopt the minimum coverage provision as a means of regulating that market.  As Judge Kessler

put it:    

those who choose--and Plaintiffs have made such a deliberate choice--not

to purchase health insurance will benefit greatly when they become

ill, as they surely will, from the free health care which must be

provided by emergency rooms and hospitals to the sick and dying who

show up on their doorstep. In short, those who choose not to

purchase health insurance will ultimately get a "free ride" on the

backs of those Americans who have made responsible choices to

provide for the illness we all must face at some point in our lives.

CAC filed a brief in Florida v. HHS on behalf of a bipartisan group of 78 State Legislators from 27 States, who believe that the health care reform law is constitutional and are working hard in their States to implement it.  Many of those State Legislators hail from the same States as some of the state officials challenging the law in this case, putting the lie to the message of some conservatives that "the States" are united in their opposition to the Affordable Care Act, both as a matter of policy and as a matter of constitutional law.  Earlier this month, CAC also submitted written testimony for a Senate Judiciary Committee hearing on the constitutionality of the Patient Protection and Affordable Care Act, explaining that the Constitution's text and history clearly support the constitutionality of the Act.  We are working as we write this to translate that testimony into a brief we are planning to file next month in the Fourth and Sixth Circuit Courts of Appeal, the first two appellate courts to hear these challenges.   

CAC intends to participate at the appellate level in each of the cases involving the health care reform law in which courts have reached the constitutional merits.  And, of course, we'll continue to report about these cases on our web site, and on our Text & History blog.

Judicial Emergency Seat on Ninth Circuit Still Vacant While Goodwin Liu Marks One Year Anniversary as Nominee to Fill It

On February 24, 2010, President Obama nominated the well-qualified and highly regarded legal scholar Goodwin Liu, Associate Dean and Professor at Berkeley Law School, to fill a seat on the Ninth Circuit, one of the busiest appellate courts in the country.  Despite being voted out of the Judiciary Committee in May, Professor Liu never received a vote on the Senate floor during the last Congress, one of many victims of the unprecedented obstruction by Senate Republicans of the President's judicial nominees.  As a result, Liu's nomination "died" at the end of the Congress, and Liu has now been forced to endure the further delay of re-nomination and yet another hearing before the Judiciary Committee, scheduled for this Wednesday, March 2, 2011.

The judgeship to which Professor Liu has been nominated is a new seat, added to the Ninth Circuit by legislation co-sponsored by Senators Jon Kyl (R-Ariz.) and Dianne Feinstein (D-Cal.) to help meet what the two Senators called "a judicial emergency so severe that judges [on the Ninth Circuit] have the highest caseload in the nation."  It is now one of three vacancies on that court, each of them denominated a "judicial emergency" by the federal judiciary because of the court's staggering workload.  With those vacancies, as well as vacancies on the District Courts within the Circuit, the situation in the Ninth Circuit has grown so dire that, in November, Ninth Circuit Chief Judge Alex Kozinski, a Reagan appointee, and his colleagues on the court's Judicial Council, wrote to Senate leadership "to emphasize our desperate need for judges" and to urge that the judicial vacancies within the Circuit "be filled promptly."   

Senators should heed the words of Judge Kozinski and his colleagues, move quickly to report Liu's nomination out of Committee, and then move promptly to confirm him and fill this judicial emergency seat.  Americans seeking justice deserve no less.

On February 2, 2011, U.S. District Judge John Bates (D.D.C.) held a three-hour oral argument in Shelby County v. Holder, a case in which Shelby County, Alabama, has challenged the constitutionality of the pre-clearance provision (Section 5) of the Voting Rights Act of 1965, which requires certain jurisdictions with a history of racial discrimination in voting to obtain federal approval before making changes in voting laws or regulations.  As we've reported previously, CAC has filed a brief in the case defending the constitutionality of Section 5, a question left open by the Supreme Court in NAMUDNO v. Holder.   For a good backgrounder on Shelby County as well as an understanding of the issues in the broader context of the status of civil rights laws before the Roberts Court, this excellent piece by Linda Greenhouse on the New York Times Opinionator blog, here, should not be missed.  As Greenhouse notes, while the Court in NAMUDNO backed away from deciding the constitutionality of Section 5, "[t]here appears to be no convenient off-ramp" in Shelby County.  CAC's David Gans also wrote this post summarizing the Shelby County argument.  A decision in Shelby County could come at any time.   

There was also news this month in Perry v. Schwarzenegger, the historic marriage equality case pending before the Ninth Circuit in which CAC has filed a brief defending the ruling of District Judge Vaughn Walker holding that California's Proposition 8, which prohibits same-sex couples from marrying, violates the Fourteenth Amendment. On February 16, 2011, the California Supreme Court accepted the Ninth Circuit's request that it answer a question certified to it by the Ninth Circuit concerning the legal right (or "standing") of the proponents of Prop 8 to pursue an appeal of Judge Walker's ruling. The state Supreme Court set a briefing schedule to "accommodate oral argument in this matter as early as September, 2011." In the meantime, Perry is on hold in the Ninth Circuit. In light of this delay and the continuing denial of marriage equality to gay men and lesbians in California, the plaintiffs in Perry last Wednesday filed a motion asking the Ninth Circuit to lift the stay of Judge Walker's ruling and allow it to go into effect. That motion is currently pending.   

Please be sure to check Text & History and the litigation section of our web site to stay informed about developments in this and all CAC cases. 

Text & History

Unanimous Victory in Williamson Preemption Case: Justice Thomas Emerges As Surprising Ally for Progressives

Whatever Happened to Truth in Advertising? The Continued False Campaign Against the Constitution by the Tea Party and Its Allies

Senator Hatch - Attempting to Game the System of Judicial Review?

Stop Talking About Broccoli