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| Fulfilling the Progressive Promise of the Constitution's Text & History May 2011 |
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Opening Statement
Doug Kendall
President, CAC
I feel a little embarrassed admitting it, but we're federalism nerds here at Constitutional Accountability Center. As this newsletter demonstrates, many of the cases we litigate involve questions of federalism: how the Constitution allocates governmental authority between the federal government and the states.
I'm hesitant to admit this because it sounds awfully boring. But as the cases summarized in this newsletter indicate, this boring topic has stunningly important real world impacts. Is the health care reform law constitutional? Can Sheriff Arpaio take over the enforcement of federal immigration laws in Arizona? Can AT&T get away with an alleged massive fraud as long as the impact on each of its customers is small?
These are all, at bottom, questions of constitutional federalism and, we think, based on a careful study of the Constitution's text and history, that the answer to each of these questions is clear. The health care reform law is constitutional. Immigration and naturalization are uniquely federal responsibilities. State contract law appropriately limits AT&T's conduct.
We hope that after reading this newsletter, and maybe even some of the briefs we link to, you'll become a bit of a federalism nerd too. Or just let us focus on these issues so you don't have to -- we couldn't be happier.
Until next month,
Doug
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Victory in Lawsuit Challenging Arizona's Anti-Immigration Law
On April 11, 2011, the U.S. Court of Appeals for the Ninth Circuit, as CAC had urged, handed down a big victory for the Constitution and the rights of immigrants. Ruling in U.S. v. Arizona, the Ninth Circuit upheld District Judge Susan Bolton's order enjoining implementation of the most controversial parts of S.B. 1070, Arizona's controversial anti-immigration law that seeks to supplant the federal government in enforcing immigration laws in that state. In a 2-1 decision, the Court of Appeals held that the federal government was likely to succeed on the merits of its claim that the blocked provisions of the Arizona law are unconstitutional because they impermissibly interfere with the federal government's power to regulate immigration and naturalization.
Both Judge Paez's opinion for the court and Judge Noonan's concurrence appropriately emphasized that the federal government's powers are particularly sweeping when it comes to foreign affairs. Indeed, as we observed in CAC's brief in this case, Congress' constitutional power to make a "uniform rule of naturalization" is one of the few places where the Constitution makes absolutely clear that the federal government's power is exclusive. As Alexander Hamilton explained in Federalist 32: "if each state had the power to prescribe a DISTINCT RULE, there could be no UNIFORM RULE" (emphasis in original).
By following the balance of powers demanded by the Constitution's text, the Ninth Circuit handed anti-immigration Tea Party politicians such as Gov. Jan Brewer and State Senator Russell Pearce a well-deserved, but still stinging, defeat.
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CAC Defends the Constitutionality of the Health Care Reform Law in Courts Around the Country
The litigation over the constitutionality of the Affordable Care Act is now front and center before the U.S. Courts of Appeal, and CAC is vigorously defending the Act around the country. Late last month, the Supreme Court unceremoniously and unanimously denied Virginia Attorney General Ken Cuccinelli's petition to hear Virginia's lawsuit against the health care reform law immediately and bypass the normal process of appellate court review. The decision was welcome, but not surprising. In a statement picked up by news outlets from CNN to Politico, CAC noted that "Proponents of this lawsuit have tried to frame it as a hugely important constitutional challenge steamrolling to the Supreme Court. It is, in fact, a nothingburger."
With the challenges now proceeding in the lower courts, the Fourth Circuit in Richmond, Virginia, will hear argument on May 10 in both Virginia v. Sebelius and Liberty University v. Geithner. The argument should prove exciting: the names of the three judges who will hear the case will not be released until the morning of the argument, and, in an indication of the importance of this matter to the Obama Administration, it has been reported that Acting Solicitor General Neal Katyal will argue on behalf of the federal government. (CAC's brief in Virginia v. Sebelius is here.)
The Sixth Circuit will be next, holding oral argument in Thomas More Law Center v. Obama on June 1. The panel of judges who will hear that case is scheduled to be announced on May 18.
In the meantime, briefing continues in the high-profile Florida v. HHS case, now pending in the Eleventh Circuit. CAC last month filed a brief in the case on behalf of a bipartisan group of 154 state legislators from 26 states, defending the constitutionality of the health care reform law and supporting the government's appeal of District Judge Roger Vinson's January 31, 2011 ruling.
Oral argument in the Florida case will be held on June 8, with General Katyal and former Solicitor General Paul Clement scheduled to face off before the court.
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The Roberts Court Rejects the Constitution's Principles of Federalism, Resorts to Judicial Policy-Making in Concepcion In April, corporations were again the big winners in the U.S. Supreme Court -- and consumers the big losers -- as the sharply divided Court handed down a 5-4 decision in favor of AT&T in the consumer arbitration case of AT&T v. Concepcion. At issue in Concepcion was the fine print in contracts that AT&T required cell phone purchasers to sign that forced claims against the corporation into arbitration and also banned class actions. This fine print could effectively allow the corporation to get away with widespread financial fraud whenever the individual damages to any one consumer are too small to be pursued. Based on state contract law prohibiting "unconscionable" contracts, the lower federal court refused to enforce the class action ban. The Supreme Court overturned this decision. Ruling against their professed commitment to federalism, the Court's conservative Justices decided that state law in this case was preempted by the Federal Arbitration Act, even though the Act specifically preserves the applicability of "such grounds as exist at law or in equity for the revocation of any contract." As CAC explained in our brief, the Court's conclusion is contrary to both the text of the Act -- which specifically maintains a role for state law -- and the text of the Supremacy Clause. The most disappointing vote in Concepcion was that of Justice Clarence Thomas, who in earlier rulings had taken a strong position against the very type of "obstacle" preemption relied on by the majority in this case. While Justice Thomas stated that he joined the majority's opinion "reluctantly," he must know that principles only really matter when a case is on the line and when the Justice would prefer the opposite result as a matter of policy. He and the other conservatives on the Court flunked that test of principles in Concepcion. |
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Constitutional Accountability Center (CAC) is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution's text and history. We work in our courts, through our government, and with legal scholars to preserve the rights and freedoms of all Americans and to protect our judiciary from politics and special interests. For more information on CAC, please visit our website at www.theusconstitution.org, or email Brooke Obie at [email protected].
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