Recently I wrote about the coercion question posed by Florida et al. in the PPACA litigation.  I have a quick follow up thought: I wonder if those advocating a more robust read of coercion recognize that their position could backfire if the goal is broadening federalism protections.  An expanded coercion doctrine ostensibly would introduce the possibility of judicially enforcing states’ rights against the congressional power to spend.  But the states should not assume that they are the only parties that could enforce federalism principles.  Just last term in Bond v. United States, Justice Kennedy wrote that individuals can have standing to enforce the principles of the Tenth Amendment against the federal government because federalism protects not just the states but also individuals.  In Bond, the conclusion was foreseeable, as a criminal defendant should be able to challenge the constitutionality of the statute under which she is charged.  But the idea is muddied in a conditional spending program, wherein individual beneficiaries are often at odds with the state and contest its compliance with the federal government’s statutory conditions. 

States have sought to prevent private enforcement of conditional spending statutes, and they have been more and more successful in closing the courthouse doors.  For example, the Court has limited implied rights of action as well as actions under civil rights law 42 U.S.C. § 1983, decisions that narrow state exposure in federal court.  In fact, this type of question is before the Court now in Douglas v. ILC, which confronts private enforcement of the Medicaid Act against states via the Supremacy Clause.

If the coercion theory is expanded, then private plaintiffs could be reintroduced into the federal courts, the very thing that states have been trying to prevent.  And, individuals engaging in coercion analysis may have different goals than states.  Further, it is possible that coercion could inaugurate a new theory by which those conditions, and the ways in which they are or are not executed by states, can be challenged by private plaintiffs.  So, not only is state coercion by the federal government an inherently sticky question, but it also may not produce results that states desire.

Another Medicaid case this term also involves constitutional challenges – Douglas v. Independent Living Center of Southern California.  That certiorari was granted is notable unto itself, as no circuit split existed, the Acting Solicitor General had recommended that the Court deny the petition, and the Court does not seem to relish hearing healthcare cases.  The conflict in Douglas is whether California violated the Medicaid Act by enacting 10% reimbursement rate reductions, but this is not the question before the Court.  The Court will consider whether the plaintiffs (a group of Medicaid providers and enrollees) may privately enforce the Medicaid Act against the state by claiming the state has violated the Supremacy Clause.  Depending upon the timing of the opinion, Douglas may give us hints as to how the Court will decide Florida v. HHS,  even though the United States has taken notably different positions in the two cases (about which I have written more here.)

Medicaid was intended to mainstream the poor into American medicine.  The Medicaid Act thus informs states that they must pay healthcare providers “sufficient[ly]” to ensure the same access to medicine for Medicaid enrollees as others in the geographic region enjoy.  This “Equal Access” provision is a pillar of Medicaid, and it has been a source of litigation against states that pay providers too little.  In fact, before Gonzaga, lower federal courts were in agreement that the Equal Access provision was enforceable via section 1983.  Through this litigation, the circuits developed varying methods for deciding sufficiency of payment, as the Centers for Medicare and Medicaid Services (CMS) has not enforced the Equal Access provision vigorously against the states.  Despite the lack of agency action, ”sufficiency” is key to Medicaid’s success; if states do not pay enough for the medical services they buy, Medicaid enrollees will be forced into substandard care or will not be able to find caregivers at all, and the program would be undermined.  Due to Gonzaga, and because CMS infamously does not monitor the states, Medicaid providers and enrollees have sought to enjoin states from violating the Medicaid Act under the Supremacy Clause.

California argued that the Medicaid Act does not include private actions, thus the plaintiffs could not seek an injunction because the statute fails to meet the “unambiguous conditions” element of the Dole test for conditional spending.  This argument speaks to clear statement advocates on the Court (such as Justices Alito, Scalia, and Thomas), because it claims that states do not have clear notice of Medicaid enforcement actions in federal court.  To the surprise of many, the United States’ amicus brief not only supported California but also urged that no private right of action exists for beneficiaries of federal spending programs (generally) to enforce federal standards against states.  The Acting Solicitor General’s brief thus took a much bolder position than was expected.  Remarkably, members of Congress and ex-administrators of the Department of Health and Human Services strongly disagreed with the SG’s position.  In fact, the ex-administrators, which represent both sides of the aisle, insist that CMS relies heavily on private enforcement to police the states.

Douglas may lead the Court to articulate a default rule that ends implied private rights of action under the Supremacy Clause, but Medicaid is a flawed vehicle for such a sweeping, federalism-based decision.  [More after the jump.]

One reason is that CMS has no monetary incentive to enforce the Equal Access provision; the more a state pays its Medicaid providers, the more the federal government is obliged to match with general revenue funding.  Thus, CMS saves money by allowing the states to underpay Medicaid providers in violation of the Equal Access provision, and draft regulations intended to shore up the Equal Access provision do not address this perverse incentive.  So, waiting for CMS to act, as the United States has urged, is futile, and states would be free from enforcement, public or private, judicial or executive.   

Douglas highlights some inconsistencies in the Rehnquist Court’s ‘federalism revolution.’  Even as it revitalized judicial enforcement of the Tenth Amendment in cases such as New York and Printz, the Court treated spending as an exception by stating that the federal government could basically buy state cooperation without running afoul of the Tenth Amendment.  On the other hand, the Rehnquist Court shored up state sovereign immunity through expansive Eleventh Amendment decisions and through limiting implied rights of action, which in combination partially closed the courthouse doors to beneficiaries of federal spending programs.  Douglas gives the Roberts Court a chance to consider directly some formerly peripheral thoughts regarding limiting access to federal courts when the law at issue is an exercise of conditional spending power. 

This leads to another reason Douglas is the wrong vehicle and should be decided narrowly.  In asking the Court to create a severe limitation on Supremacy Clause rights of action in conditional spending schemes, the United States’ brief articulated great deference toward the states in the Medicaid program, especially for their decisions regarding provider payment.  But the U.S. has taken a diametically opposed position in the Florida v. HHS litigation, in which the power to spend has been articulated very broadly in defense of the mandatory Medicaid expansion.  But, if the Court were to adopt the Solicitor General’s position in Douglas, then the Medicaid expansion could be eviscerated.  Here’s how: if the states do not pay Medicaid providers sufficiently, then the 16 million new Medicaid enrollees will have a very difficult time finding anyone to treat them.  PPACA did not add private rights of action to Medicaid, and it did not give CMS new enforcment mechanisms (money, regulatory authority, people power).  So, states could resist the expansion by underpaying Medicaid providers, and Douglas would make it so that no recourse exists (unless Congress acts, which is what the Court is trying to effectuate through clear statement rules).  Further, if the Court decides Douglas broadly, it may signal a willingness to decide both aspects of the Medicaid coercion question broadly, i.e., to expand the coercion doctrine and strike down the expansion itself.  (I know, I predicted a different outcome in my first post on Florida v. HHS….)

It is possible the Court will postpone deciding Douglas until it has heard the Medicaid coercion arguments on March 28th or even until it has decided Florida v. HHS.  Whenever Douglas is decided, the United States has taken a state-deferential position in the case that is at odds with the broad articulation of the spending power in defending the Medicaid expansion.

After the Supreme Court heard oral arguments in Douglas v. ILC, the Secretary of HHS approved some of California’s deep cuts in Medicaid reimbursement.   The Court requested additional briefing regarding the impact of the rate reduction approval, and the United States responded that the case was not moot because the grant of certiorari was based upon the Supremacy Clause question, not a determination as to the actual sufficiency of the state’s Medicaid payment rates.  As soon as the rate reductions were approved by HHS, the California Hospital Association, the California Medical Association, and other Medi-Cal providers filed additional claims for injunctive relief.  

Yesterday, U.S. District Court Judge Christina Snyder issued an injunction against California preventing the implementation of the HHS-approved rate reductions because they would cause irreparable harm to hospitals’ skilled nursing units (among other problems).  The new injunction keeps the issues in Douglas alive, whether as a matter of payment rate adequacy or as a matter of private enforcement of state violations of the Supremacy Clause.  Thus, even though HHS approved Medi-Cal rate reductions, the conflicts in Douglas have not been resolved. 

There is also a fascinating real-time separation of powers quandry in this case, which is highlighted by the injunction that was just issued.  Federal courts perceive states’ failure to abide by the mandate of the Equal Access provision, but HHS, whose job it is to ensure state compliance, turns a blind eye to state decisions that will limit access to medical care.  In the meantime, Congress does not modify the Equal Access provision to contain stronger language or a clearer private right of action, it merely relies on implied private enforcement actions (see the amicus brief of Members of Congress).  And HHS has issued paltry draft regulations to facilitate enforcement of the Equal Access provision, but the draft regulations do not guide CMS’s enforcement efforts so much as they provide some standards for states to self-report with little federal oversight.  It seems that federal courts are acting because the legislative branch either can’t or won’t, and because the executive branch either can’t or won’t ensure that this federal law is followed.  This makes the Obama Adminstration’s deference to state decisions all the stranger in Douglas, and courts’ patience with Equal Access litigation a bit more understandable.  It also helps to explain the sort of underlying tone of confusion at oral arguments.  The Court is left with the unenviable task of cutting this Gordian knot of inter-branch disfunction.

In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.

Read the full Note, How to Reach the Constitutional Question in the Health Care Cases by Daniel J. Hemel, at the Stanford Law Review Online.

Is the sky falling?  According to Florida et al., which filed their brief regarding PPACA’s Medicaid expansion today, the answer is a resounding yes.  In many respects, this brief rehashes the coercion arguments made in the district court and Eleventh Circuit.  The states continue to argue that they cannot afford the Medicaid expansion that will occur in 2014 (which I discussed on this blog here, here, and here), even though the federal government will pay 100% of the cost initially; and, they cannot afford not to participate in Medicaid because the costs of their medical welfare populations would be too high.  Thus, the states claim to be coerced into accepting this “onerous” new condition on federal funds.  Again, these arguments are not new. 

One aspect of the brief that was new was the inclusion of the severability arguments through describing the Medicaid expansion within the context of the universal insurance aspirations of PPACA (see especially fn. 18).   The states essentially contend that the minimum coverage requirement (“individual mandate”) gives impoverished Americans no option but to be in Medicaid, which in turn makes it so that the states cannot opt out of Medicaid.  The states further assert that this was Congress’s plan – to coerce the states by giving the poor no other options for obtaining minimum insurance coverage.  The fallacious assumptions underlying this argument are too numerous to unpack at this late hour, but at least two thoughts can start the job: first, New York v. U.S. does not require the federal government to offer alternatives to conditional spending programs (unlike, say, when it exercises commerce authority – the insurance exchanges in PPACA, which are a point of contrast in the brief, are an exercise of Commerce Clause authority, and states can either create them with some federal funding or reject them and the federal government will create the exchanges in the states that choose not to act — all of this fits neatly within the New York architecture).  Second, suffice it to say that the impoverished are not seeking private insurance alternatives to Medicaid.

Medicaid’s history is skewed by the brief more greatly than it was at lower court levels.  For example, the brief ignores the fact that Medicaid has always contained mandatory elements; these mandatory elements were one of the major defining features of the program as it was amended from Kerr-Mills, its predecessor program.  The brief also misrepresents the existence of mandatory eligibility and coverage standards and how they serve the aspirations of the program.  Likewise, the brief either misunderstands or misrepresents the minimum essential coverage requirement, which is actually more flexible for states than the mandatory coverage provisions for other Medicaid populations.  Additionally, the brief appears to misunderstand the statutory clarification that Medicaid provides both care and service (Congress here was responding to lower federal courts that had misconstrued certain language in the Medicaid Act).

Also, decisions such as Arlington, Dole, and Pennhurst that have required clear notice of conditions on spending are cited in the brief to support the states’ position that they have not voluntarily agreed to this condition on spending.  Before this point, the states have not argued that any other Dole element was violated, but the states now seem to indicate that these conditions were not unambiguous and thus the ‘contract’ with the federal government is unconstitutional.  In addition, the states offer a limiting principle that adopting their view of the coercion theory does not threaten other federal spending programs because Medicaid is by far the largest federal spending program (echoes of the federal government’s argument that nothing else is like healthcare).

Bottom line, the states want the Court to revive Butler and to expand the theory of coercion that the Court merely acknowledged in Dole and Steward Machine by relying heavily on Justice Kennedy’s concurrences and dissents that have expressed an interest in such an expansion.  The question is whether a majority of the Court is interested in a new limitation on Congress’s power to spend.

Reporting results for its monthly Health Tracking Poll published today, the Kaiser Family Foundation introduced the summary of its findings thus:  “As the Supreme Court prepares to hear legal challenges to the health reform law in March, most Americans expect the Justices to base their ruling on their own ideological views rather than their interpretation of the law…. Other key findings include:  The public doubts the Supreme Court renders judgments based solely on the law. Three-quarters (75%) say they think that, in general, Justices let their own ideological views influence their decisions while 17 percent say they usually decide cases based on legal analysis without regard to politics and ideology….”  Notable for a term that has the potential to render a few blockbuster cases.  (The public’s opinion of the Court is worthy of its own conversation, but it’s best left for another post.) 

It is not just the general public that believes politics will win out; amici supporting the states seem to be appealing to ideology.  In reading all of the amicus briefs supporting Petitioners’ claim that the Medicaid expansion is unconstitutionally coercive, several themes reflecting this strategy emerge, such as:

• Rejection or non-acceptance of New Deal era programs and precedents (the foundation of spending programs such as Medicare and Medicaid).
• Asking the Court to invent a coercion doctrine to limit the power to spend and/or seeking a return to U.S. v. Butler, the 1936 decision that articulated a Hamiltonian understanding of the power to spend as a separate enumerated power but that also declared the provision of the act at issue to be unconstitutional as infringing on states’ rights.  (One brief even seeks reversal of Butler’s adoption of the Hamiltonian view in favor of the Madisonian view that the power to spend only supports the other enumerated powers.)
• Eschewing precedent - paragraphs unfold with no cites (the Texas brief is a good example).  Citations that do exist are often to concurrences, dissents, scholarship, or think-tank reports.  Justice Kennedy’s concurrences and dissents are well represented. 
• Providing a limited picture of the Medicaid Act and the expansion by failing to account for prior mandatory modifications to the program as well as the statutory architecture of the program (which contains both mandatory and optional elements). 
• An assertion that states cannot leave Medicaid because the federal government somehow improperly taxes state citizens, therefore states cannot tax their populations enough to pay for a state-based Medicaid equivalent. (This reflects an argument articulated by Professor Lynn Baker in her spending power articles, though it is not always attributed.) 
• Hyperbolic analogies (such as characterizing states as drug addicts).

 A couple of additional thoughts come to mind in reading the amicus briefs:

• State dependence on federal funding speaks to state behavior, not federal.  
• Coercion is too nebulous and perverse to be a coherent constitutional doctrine. This is illuminated by the amicus briefs, which essentially assert that the more money the federal government offers, the less control it should be able to exercise over either the money or the states.
• The Court has no standard by which to judge whether the federal government offers too much money to states.  Too much money relative to what?  If healthcare is expensive, then in a cooperative federalism arrangement the federal government must offer sufficient money to encourage a state to implement a program that will be costly.  The sum of money speaks to the nature of the program, but it does not dictate whether the federal government may permissibly offer the money to the states. 
• The tax argument is a distraction that denies the existence and purpose of the 16th Amendment as well as long-standing reliance on redistributive tax policy.

Despite the Medicaid expansion being the surprise question before the Court for many observers, it may dictate the outcome of the case.  The Court could dodge the Commerce Clause question by virtue of the Anti-Injunction Act but still limit congressional authority by adopting the anti-federal spending position of the states and their amici.  An additional theme - that Medicaid is essential to the minimum coverage provision – could make it so that Medicaid is the downfall of PPACA rather than the individual mandate.  Such a result would fly in the face of severability jurisprudence; but, much about this litigation is unprecedented.

I just returned from this morning’s oral argument in Department of HHS v. Florida, the challenge to the constitutionality of the Affordable Care Act (ACA). This week the Court is devoting three full days (six hours) of argument to the case, the most in half a century. The case has been a constitutional law professor’s dream because it illustrates the application of so many issues we cover in the course, including standing, the commerce power, the tax and spending powers, and theories of constitutional interpretation. I have had my first year Con Law students read the decisions below and the principal briefs before the Court and we devoted two full days of class to a roleplaying exercise where the students argued the issues.

This morning when I arrived at the Court at 7:30am there was a very lengthy line outside the Court building even for members of the Supreme Court Bar. When I saw the line I figured that I would not have a chance to get a seat in the bar section, but I at least would be able to listen to live audio of the arguments in the Lawyer’s Lounge. However, many people in the bar line were members of the press and the line shrunk quickly when they were ushered into the building. Also the Court wisely decided for today’s session to entertain no admissions for new members of the Supreme Court bar, freeing up extra seats in the bar section. I received ticket #47 and by 8:45am I was seated in the courtroom with other members of the Court’s bar. Sitting next to me was a state legislator from Maine who had flown to D.C. for the argument. She reported that when she arrived at the Court at 5:20am she was the thirteenth person in the bar line and that many of the people in front of her had been paid to wait in line for other bar members.

I was seated directly in front of the press section, which was filled to overflowing by 9:30am. Being a fly on the wall to conversations among the veteran reporters who cover the Court was interesting. One mused that he could create a stampede from the bar section simply by announcing that he was looking for experts to comment on the case. Another vowed dire consequences “if one more public relations person from a fourth-tier law school calls me to insist that I have to talk to some associate professor about this case.” Considerable chatter occurred concerning which prominent officials were in the Court (“Justice said Eric Holder will be here, but I don’t see him.”).

When the Justices took the bench at 10am, Justice Scalia announced the Credit Suisse Securities decision on the running of a statute of limitations in securities litigation. He went into great detail about the case, taking ten full minutes and causing many in the press and bar sections to roll their eyes. Chief Justice Roberts then in three minutes succinctly explained the Court’s Zivotofsky decision, holding that the constitutionality of a statute requiring the State Department to list people born in Jerusalem as having been born in Israel is not a political question.

The argument then got underway. The Court has divided the three days of argument by subject matter. The main event will be tomorrow when the Court focuses on the constitutionality of the individual mandate, the requirement that everyone purchase health insurance. This is the portion of the ACA that was struck down by the 11th Circuit as exceeding Congress’s power under the commerce clause. Today’s argument focused on whether the Anti-Injunction Act, a statute that dates from 1867, barred the Court from hearing challenges to the ACA because of its requires that taxes first be paid before their legality can be challenged in court. The only penalty the ACA provides for failing to purchase health insurance is that an extra payment must be made on one’s income tax return with the payment roughly designed to reflect what the cost of insurance would have been. Because the Solicitor General has taken the position that this payment is not covered by the Anti-Injunction Act, the Court appointed Robert A. Long, Jr. as special counsel to make that argument. Thus, today’s argument was divided into three parts.

Long argued first that the Anti-Injunction Act applied and deprived the Court of jurisdiction to hear the case until after payments for failure to buy insurance became due in 2015. Solicitor General Donald B. Verrilli, Jr. then argued that the Anti-Injunction Act did not apply to this case, but that in cases where it did apply it should be considered to be a jurisdictional bar. Gregory G. Katsas, representing the states challenging the constitutionality of the ACA, argued that the penalty was not a tax barred by the Anti-Injunction Act and that the government had properly waived any argument to that effect.

Based on the questions from the Justices, it seems most unlikely that the Court will use the Anti-Injunction Act rationale to postpone for a few years a decision on the constitutionality of the ACA. Several Justices noted that when the constitutionality of the Social Security Act was challenged 75 years ago in Helvering v Davis, the government waived application of the Anti-Injunction Act, something it could not do if the Act were a jurisdictional bar. Solicitor General Verrilli said the Court need not decide the jurisdictional issue if it agreed that Congress did not intend to subject the ACA to the Anti-Injunction Act. Justice Kennedy brought down the house when he replied, “Don’t you want to know the answer anyway?”

Thirteen minutes into the argument all Justices but Justice Thomas had asked questions. Thomas did not ask any questions. He has not asked a question at oral argument for six years, though some have speculated that tomorrow he may do so when the focus is on the constitutionality of the individual mandate. The Justices did not tip their hands today about how they felt concerning this constitutional issue.  Justice Alito did chide the Solicitor General for arguing today that the sanction for failing to purchase insurance is not a tax, while arguing tomorrow that it is. In one exchange between Justice Kagan and the Solicitor General, Kagan kept referring to the “penalty” while Verrilli kept answering by referring to the “tax.” When the Chief Justice noted that they were using different terms, Verrilli switched to “tax penalty” as a compromise.

Tomorrow the government is making the argument that the individual mandate is constitutional as an exercise of both the commerce and the taxing powers. The tax power is implicated because the only sanction for violating the mandate is payment of a penalty on one’s income tax. Opponents of the mandate argue that it never would have been adopted by Congress if it had been advertised as a tax. However, there is precedent that even measures not specifically called “taxes” can be upheld under the taxing power in certain circumstances.

The upshot of today’s argument is that the Court is most unlikely to use the Anti-Injunction Act to duck a decision on the merits of the constitutional issues. Thus, tomorrow is the main event (Wednesday’s argument will be devoted to severability and the sleeper issue of whether the Medicaid expansion is unconstitutionally coercive of the states). I will not be attending the argument tomorrow because I have a morning class in Constitutional Law, but my class and I certainly will continue to follow this case closely.

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right.

In his dissent in Richardson v. Ramirez which held that § 2 of the Fourteenth Amendment implicitly authorizes states to deny voting rights based on a felony conviction, Justice Marshall exposed this fear of “subversive voting.”  He surmised that the California statute at issue resulted from a concern that the “likely voting pattern [of citizens with criminal convictions who had completed their sentences] might be subversive of the interests of an orderly society.”  These ideas echoed from an earlier Second Circuit case, Green v. Board of Elections, brought by a defendant convicted of conspiring to teach and advocate the overthrow and destruction of the government.  In defending New York’s felon disfranchisement statute, the court articulated a clear subversive voting rationale rooted in viewpoint discrimination:

[I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases. . . . A contention that the [Constitution] requires [a state] to allow convicted mafiosi to vote for district attorneys or judges would not only be without merit but as obviously so as anything can be.

These cases demonstrate that the fear of how these citizens would vote and the impact of their vote is what motivated the legislature to restructure them out of the electorate.  If this strikes you are odd, you are in good company.   The Supreme Court held in Carrington v. Rash that “‘[f]encing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”  Moreover, this principle was reinforced in several voting qualifications cases from the late 50s through early 70s in which states attempted to structure the electorate based on the perceived viewpoint of would-be voters.  The Court later established in Romer v. Evans that the right to vote cannot be denied because of what a voter is advocating—in other words, for viewpoint.  However, the Court has yet to extend this principle to citizens with felony convictions.

With all this talk about expression and viewpoint, surely someone must be asking whether the First Amendment has any role to play here.  I think it does.  In a recent article, I argue that felon disenfranchisement is motivated, in part, by a form of viewpoint discrimination that ascribes an anti-social, criminal-minded political consciousness to citizens with felony convictions.  Felon disfranchisement laws should be reconsidered under the equal protection clause and informed by First Amendment values.  One possible avenue for reconsidering the constitutionality of felon disfranchisement laws and their impact on the structure of the electorate is the theory of First Amendment Equal Protection, a discrete dimension of Equal Protection jurisprudence that is informed by First Amendment values.  While there has been some recognition of the First Amendment’s relevance in the area of partisan redistricting and certain other areas of election law, the First Amendment has not yet been held to inform voter qualification challenges and the legislative tampering with the structure of the electorate that these laws afford.  However, in the same way that redistricting permits incumbents to draw undesirable voters out of their districts, felon disenfranchisement laws allow legislatures to excise from the electorate a group of citizens that does not represent the status quo, the vast majority of whom are marked by the intersection of race, class, and low socio-economic status.  Pippa Holloway’s essay, Race and Partisanship in Criminal Disfranchisement Laws: Antecedents of the 2000 Election Controversy in Florida, featured here, provides a historical account of felon disenfranchisement practices maintained for both partisan and racial motivations.

Of course, other laws, most notably voter identification laws about which I hope to write in future posts, also shape the electorate in profound ways.  Felon disfranchisement is particularly vexing, however, because it involves the intersection of two historically discriminatory systems—the electoral and penal systems—as well as two constitutional provisions that protect the value of equality.  This new viewpoint on felon disfranchisement advances John Hart Ely’s notion that “[n]ot everything that was assumed to be constitutional in 1868 remains immune to the Equal Protection Clause (assuming it ever was) and Section 2 [presumed by Richardson to permit felon disfranchisement] says nothing stronger on the subject of denying felons the franchise than that in 1868 it was assumed to be constitutional.”  It is time to challenge this presumption in the face of justifications that contravene core equality principles of both the First and Fourteenth Amendments.  It is also time to have enough confidence in our electoral process not to be afraid to hear what folks like Snake have to say.

The Stanford Law Review Online has just published an Essay by Eric Segall and Aaron E. Carroll entitled Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act. Professor Segall and Dr. Carroll explore the constitutional and practical arguments for upholding the ACA:

The Supreme Court’s decision on the constitutionality of the Affordable Care Act (ACA) will likely be handed down on the last day of this year’s term. If the Court finds that the ACA—either in whole or in part—violates the Constitution, the health care industry will be shaken to its core. And, no matter what legal justification the Court uses to invalidate the ACA, the structure of constitutional law will be severely undercut. The resulting medical and legal chaos will be expensive, divisive, and completely unnecessary. Nothing in the text, history or structure of the Constitution warrants the Court overturning Congress’s effort to address our national health care problems.

They conclude:

The leading academic proponent of a decision overturning the ACA has conceded that the law is an attempt to “transform a sixth of the national economy.” Whatever can be said about that economic plan as a policy matter, there can be no question that (1) it is a regulation of commerce among the states; and (2) there is no textual or precedential constitutional principle that suggests Congress can’t use all reasonable tools to regulate that commerce, including the use of an individual mandate.

Read the full article, Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act by Eric Segall and Aaron E. Carroll, at the Stanford Law Review Online.

I have just returned from the perennially-satisfying Health Law Professors Conference at ASU (where it was hot enough to singe your eyebrows).  For folks interested in any aspect of healthcare law, this conference is highly recommended; the panels are strong on substance, the people are unfailingly collegial, and the event is bound to be near you at some point, as it moves to a different law school each June.  This year I shared a panel entitled “Theories of Health Reform in the United States” with three excellent speakers, including CoOp co-guest blogger David Orentlicher (Rights to Health Care in the United States: Inherently Unstable), Abby Moncrieff  (Healthcare Federalism, Healthcare Rights, and the ACA), and Christina Ho (Recursivity and Health Reform in the US: An Application of Niklas Luhmann’s Essays on Self-Reference). 

I gave my talk the hilariously vague title “Healthcare as a Vehicle for Constitutional Change” when I submitted the abstract many months ago.  It turned out, though, that this title was both useful and not a red-herring.  I presented elements of an essay on Post-Reform Medicaid, including a point I mentioned here in December that the United States has not told a consistent story about Medicaid to the Court this term.  In Douglas v. Independent Living Center, the Solicitor General articulated a deferential stance toward the states, a position consistent with longstanding states’ rights concerns in the Medicaid program.  On the other hand, the federal government has advocated a very broad view of federal authority under the spending power to modify and expand Medicaid in Florida v. Health and Human Services. Adding to the confusion, Congress has acted in ways that are contradictory regarding Medicaid throughout the program’s history, and those conflicting attitudes have been accentuated by the executive branch’s dissonant litigation strategies this term. 

I posited that these competing visions make it difficult for the Court to get the decision in Florida v. HHS “right.”  If the United States cannot present a cornerstone of the universal health insurance design in a coherent manner, then the Court’s job is much harder in both Medicaid cases this term.  It seems that the healthcare aspect of Florida v. HHS has been lost before the Court, making healthcare a sub-optimal “vehicle for constitutional change.”  The pithy decision issued in Douglas provides an example.  While the Breyer majority articulated concern for Medicaid as a program in enunciating the reasons to allow HHS to exercise primary jurisdiction, the Roberts dissent only described Medicaid as “spending legislation” and jumped right to federalism, spending power questions, and clear statement rules.  It is easy to see how the Court could jump to the big constitutional questions in Florida v. HHS.  (It also happens that the result in Douglas aligns with a study published in Health Affairs regarding political affiliation and attitudes toward healthcare access, but that is probably a topic for anther day.)

The Medicaid expansion is predicted to cover 16 million new lives; added to the existing 69 million Medicaid enrollees, Medicaid would become the nation’s largest health insurer covering some of our most medically-fragile and poorest citizens.  Much is at stake on the ground, but healthcare may not be a very good vehicle for the change that could be approaching.

The Stanford Law Review Online has just published an Essay by Lucas Guttentag entitled Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View. The author discusses the upcoming Supreme Court ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070. He argues that discrimination must be a crucial consideration in the Court’s review of the federal preemption challenge brought by the United States:

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.

But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws. In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws.

He concludes:

While the precise force and scope of the Civil Rights Laws with regard to non-legal resident aliens remain undetermined, and Arizona claims to be penalizing only undocumented immigrants, defining the federal interest solely through the lens of immigration regulation and enforcement is still too narrow. Federal law is not only about federal immigration enforcement—it is equally about preventing discrimination. Measuring state laws only against the intricacies of federal immigration statutes and policies misses this essential point.

Some Justices may recognize the broader non-discrimination interests presented in the federal government’s preemption claim. And even if the pending challenge does not enjoin any or all of the S.B. 1070 provisions, civil rights challenges will more directly raise the rights of immigrants, their families and communities. But that eventuality should not obscure the importance of understanding that the federal values transgressed by S.B. 1070 and similar laws encompass both immigration and anti-discrimination imperatives.

Read the full article, Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View by Lucas Guttentag, at the Stanford Law Review Online.

I was fortunate to hear Justice Ginsburg’s speech at the ACS National Convention on Friday evening, during which she reiterated her position about the value of dissents (to signal how Congress could change the law [think Ledbetter], and to make a point for historical purposes [think Gonzales v. Carhart]).  Of course, everyone in the audience was abuzz that Ginsburg was hinting at a dissent in Florida v. HHS, even though many were Court watchers who know better than to act as Supreme Court soothsayers. 

Every day brings more public speculation about the future of PPACA, and everyone seems to be making contingency plans.  This phenomenon may speak more to the unpredicability of the Roberts Court than it does to the merits of the arguments.  The current Court has been willing to revisit precedent, tweak it, sometimes even overrule it, and such willingness makes outcomes difficult to predict.  I also wonder if this speaks to the undertheorization of the Rehnquist Court’s federalism revolution (with nods to Dan and Paul over at prawfsblawg).  After all, Lopez is really a summary and categorization of existing commerce power precedent with a traditional state power overlay.  The commerce power has a long history of interpretation, including the seminal “plenary power” description from Chief Justice Marshall.  But, little tells us how the Roberts Court will read the Commerce Clause. 

This is even more true for the spending power question in the case.  The spending power is so undertheorized it basically has no theory.  The Dole test for conditional spending is merely a Rehnquist-style summary and categorization of prior spending precedent, but none of that precedent provides a theory either, unless you believe the contract analogy from Pennhurst rises to the level of theory.  The power to spend also has no early, foundational Marshall interpretation like Commerce or Necessary and Proper.  Given that the federal government lacked significant ability to spend until the Sixteenth Amendment was ratified in 1913, the lack of early precedent is unsurprising.  But, the first case to provide a heuristic (U.S. v. Butler ) merely affirmed that the Hamiltonian view of the power to spend was correct, that spending is an enumerated power.  Not only did that case avoid expressing a theory for interpreting the General Welfare Clause, it went on to limit Congress by the Tenth Amendment, thus arguably producing a self-conflicting result.  With no underlying theory, the federalism questions and topic-specific healthcare questions stand on a house of cards.

So, why all the pre-postmortems?  Maybe because we still haven’t figured out what most advanced countries did a long time ago – we all do better when we are all well.  I was speaking with someone from Scotland recently, and he was befuddled by the fight over achieving universal health insurance coverage in the United States.  He asked a question that should have been rhetorical, “Isn’t healthcare a good thing?”  If we haven’t decided that healthcare is both essential and good for all of our citizens, then no amount of preparation will facilitate the actual postmortems.

Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment.  This is an important First Amendment opinion with lots of points for discussion.

The Stolen Valor Act makes it a misdemeanor to “falsely represent oneself as a recipient of military honors.  The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.

I will just note a few things that captured my attention after a first read:

Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements.  In particular, he relies heavily on the ability of counterspeech to flush out the truth.  In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors.  Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.

It is this same confidence in the marketplace of ideas that has played a vitally important role in the Court’s free speech jurisprudence from New York Times v. Sullivan to Citizens United.  It is also the same marketplace of ideas theory of the First Amendment that has been heavily criticized for decades.   In a recent book chapter about Sullivan I wrote for Foundation Press’s First Amendment Stories, I wonder whether the assumptions that case made about the marketplace of ideas are more or less true in the digital age.  In today’s Alvarez opinion, a majority of the Justices indicate that they believe the Internet can make counterspeech more effective and easier, not harder.  I wonder how far the Justices would be willing to take their trust in the Internet as an effective tool for counterspeech and what it means for the future of defamation law.

The dissent raises some good questions about whether it would even be possible to create a complete and accurate list of those who have received military honors.  The dissent also might have questioned the assumption that people would actually refer to the database, or even trust its reliability; furthermore, they might have mentioned recent studies indicating that even exposure to true facts appears to do little to correct false beliefs and perversely tends to make people even more confident in their beliefs (known as the “backfire” effect).  One need only remember that some people still believe that President Obama was not born in this country to question the ability of the Government to counteract even easily verifiable false speech.

Public v. Private Concern: Curiously, the dissenters indicate that they are still big fans of the marketplace of ideas, but only with respect to statements on matters of public concern.  (They really have to say this, don’t they, to justify decisions like Citizens United and R.A.V.)  Justice Alito is worried that “[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern” would be particularly problematic.  For a long time the question of whether speech is a matter of public or private concern has been important in defamation and privacy law as well as cases involving government employees.  Last year’s decision in Snyder v. Phelps also relied significantly on this distinction.

It is not all that obvious to me that the speech at issue in Alvarez was a matter of private, rather than public, concern, especially given that the defendant made the statements when he was publicly introducing himself as a newly elected board member of the Three Valley Water District Board.  I am sympathetic to efforts to distinguish between speech of high and low value, but embracing a public v. private concern dichotomy is likely to cause more problems that it will solve.  That said, I predict we will see that the distinction between public and private concern, or high- and low-value speech, will play an increasingly important role in the Court’s free speech opinions in the future.

Justice Kagan: Even more interesting that the Chief’s decision to join the plurality opinion is Justice Kagan’s decision to join Justice Breyer’s concurrence.  In this opinion, Justice Breyer claims that intermediate scrutiny and not strict scrutiny is the proper framework for analyzing the constitutionality of the statute.  He embraces this lower level of scrutiny because he believes that false statements about easily verifiable facts that do not involve “philosophy, religion, history, the social sciences, the arts, and the like” are less likely than true facts to make a valuable contribution to the marketplace of ideas.  (Combined with the dissenters, that’s five votes for basing First Amendment protection on the perceived value of the speech.)  Justice Breyer notes that the approach he advocates is similar to a proportionality test examining the “fit” between the statutory ends and means.

Many of us wondered whether Kagan actually believed the argument she supported as Solicitor General in U.S. v. Stevens (the animal cruelty case), and now I think we have confirmation that she did.  I am still wondering what her vote here means for her views on the constitutionality of the FCC’s regulations on indecency in broadcast media, an issue the Court ducked last week.  Like the dissenters, Justice Breyer and Justice Kagan seem to advocate different standards for high- and low-value speech.  Just as we can never count on Justice Breyer as a reliable vote to protect free speech rights, Justice Kagan’s vote in Alvarez indicates that we are going to have to hesitate before we make any assumptions about how she will vote in First Amendment cases.

Breyer’s concurrence is going to control on the issue of when the Government can restrict false speech, and I have to agree with the dissent’s complaint that it gives unclear guidance about how Congress could rewrite the statute to pass constitutional scrutiny.  Both the plurality and concurrence suggest that Congress could avoid a First Amendment problem by amending the statute to require some sort of material harm resulting from the false representation.  That seems easily enough done.  But Justice Breyer also mentions that Congress could instead narrow the scope of the law so that it applies only to some military awards.  This kind of sounds like a suggestion that Congress limit the law to the worst of the worse, an approach a majority of the Court liked in Virginia v. Black (the cross-burning case). But Justice Breyer also expresses concern about free-roaming prosecutorial discretion and his belief that even intentional lies can serve many valuable social purposes.  I came away from reading Breyer’s opinion with the impression that he is still unsure what he thinks about laws that criminalize false speech.

Constitutional interpretation: One of the plurality’s concerns was that if this law survived constitutional scrutiny, there would be no logical stopping point for what lies the Government could criminally punish.  The dissenters rejected this argument out of hand, stating that “[t]he safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.”  Interesting statement coming on the same day these three dissenting Justices also voted to strike down the healthcare mandate.  As Rebecca Tushnet said on her blog, “Eat your broccoli!”

Justice Alito: One thing that wasn’t so surprising about this decision was that Justice Alito wrote the dissenting opinion.  You might all remember that he has been writing lots of dissents in First Amendment cases lately, including Snyder v. Phelps (Westboro Baptist church funeral protests), Brown v. Entertainment Merchants Association (violent video games) and U.S. v. Stevens (animal cruelty).  At least this time he wasn’t a lonely dissenter; Justices Thomas (who also tends to march to his own drummer on First Amendment issues) and Scalia joined his opinion.

Today, Chief Justice Roberts truly wore King Solomon’s crown. He managed to split the issue with regard to both the “individual mandate” requiring all Americans to have health insurance coverage by 2014 as well as the expansion of Medicaid making all Americans up to 133% of the federal poverty level eligible for Medicaid coverage. The Medicaid aspect of the decision is particularly confusing, given that one must count the votes twice to understand what has happened.

First, seven of the justices (Roberts, Breyer, Kagan, with Roberts writing in the majority; Scalia, Kennedy, Thomas and Alito, with Scalia writing for the joint dissent) voted that the Medicaid expansion was unconstitutionally “coercive” under South Dakota v. Dole. So, the first vote as to whether Congress has the power to require states to expand Medicaid was answered with a no; this is impermissibly coercive because the states have too much to lose if all of their Medicaid funds are at stake. This is the first time the Court has ruled that federal spending legislation is impermissibly coercive.

But, the second question is whether that historic vote for impermissible coercion means the Medicaid expansion fails in its entirety. [more after the jump]  Here, five justices voted to uphold the expansion but strike the remedy (removal of all Medicaid funding), rather than strike the expansion from the statute. Justices Roberts, Breyer, Kagan, Ginsburg, and Sotomayor agreed that the proper response was to sever the Medicaid expansion so that if a state does not comply with the expansion of Medicaid eligibility, the state cannot lose all Medicaid funding. Instead, it will only lose the funding attached to the expansion but will continue to receive existing Medicaid funding. Justices Scalia, Kennedy, Thomas, and Alito would have invalidated the entire Medicaid expansion. The ultimate result is that the Medicaid expansion was upheld, but states may opt out of it without jeopardizing all of their Medicaid funding under 42 U.S.C. 1396c.

I was surprised by the number of votes in favor of impermissible coercion, but I also would be surprised if many, if any, states opt out; they will have great pressure from both physicians and hospitals to get their poorest residents into Medicaid. Also, states that opt out of the Medicaid expansion would have to figure out how to fund the cost of the poorest uninsured, who often arrive in emergency departments with late-stage injuries and diseases and thus cost more to treat. Of course, if a number of states opt out, then states that have fully-expanded Medicaid may see greater increases of their enrollment that ultimately could lead to political pressure to modify Medicaid eligibility in a different way (as we have seen at other points in Medicaid’s history).

It is hard to say what the future implications of the reaffirmed coercion doctrine will be. The majority applied the coercion concept primarily through factual application rather than by expanding supporting theory (other than reiterating the “political accountability” notion from New York v. U.S). Undoubtedly more challenges to spending legislation will follow, but this disposition does not tell us much more about coercion than we knew before 10:15 this morning.

More to come when the reporter calls calm down.

Ok, folks, you read it here first.  In December, I stated that I thought the Court would be inclined to solidify the coercion doctrine but would be likely to uphold the Medicaid expansion.  I am still parsing the way in which the Court performed this legal novelty, because, as I noted yesterday, even though there were seven votes holding the Medicaid expansion to be coercive, five votes upheld Congress’s power to create the expansion but basically severed the remedy for noncompliance, thus effectively upholding the expansion while also expanding the coercion cause of action.  Though I was surprised at which justices were willing to agree that Tenth Amendment limits exist on conditional spending (Breyer? Kagan?), I was not surprised that the Court expressed its federalism project through the vehicle of Medicaid’s expansion.

Although this was the first time the Court has struck down federal spending legislation as coercive, the Court still has not given us a theory to understand how it will decide future coercion cases.  The Court refused to define coercion beyond assessing the Medicaid expansion as being “beyond the line” where “persuasion becomes coercion.”  (p. 55)   We do have two points of clarification, though.  First, Florida’s brief was clearly persuasive to the Chief Justice, because he bought the states’ argument that too much money could be taken away if the states do not comply with the Medicaid expansion.  This clarifies an aspect of South Dakota v. Dole’s coercion dicta, which could be read to mean either that Congress has offered too much money or that Congress threatened to take away too much money.  Here, the Court accepted that Congress can offer the money for the Medicaid expansion, but it took issue with the fact that the Medicaid Act gives HHS the power to take away all Medicaid funding.  So, Congress can offer a lot, it just can’t threaten to take it all away.

The second point of clarification is that the Court is willing to apply the Tenth Amendment as a limiting principle to conditional spending legislation under this newly solidified coercion doctrine based on the New York v. U.S. notion of “political accountability” (which I highlighted during oral arguments).  But, the opinion relies on prior federalism opinions such as New York and Printz, which are heavy on dual sovereignty and light on cooperative federalism.  Political accountability does not provide a framework for understanding how future coercion claims might play out.[more after the jump]  

We can also see that the Court does read amicus briefs.  (Because I co-authored an amicus brief supporting the Medicaid expansion, I read all of the opposing briefs on the issue, which I blogged about in January.)  One of the most obvious influences on the Roberts opinion, aside from Florida’s submission, is Professor Blumstein’s amicus brief.  Blumstein advocated that the expansion is a new program that he called “New Medicaid” or “Medicaid 2.0,” which is reflected in the way the Roberts/Breyer/Kagan plurality evaluated the Medicaid expansion.  This is a complete mischaracterization of the expansion, and a dangerous one.  Medicaid is a federal program that sets a floor of requirements upon which states can build, and Congress decided that eligibility for Medicaid should be uniformly expanded rather than allowing states to continue to hew to outdated notions of the “deserving poor” (a change that was long overdue, which I wrote in Federalizing Medicaid).  To characterize eligibility for the program as outside the scope of the federal government’s control of the program is bizarre.

I want to get to the concurrence and dissent later.  So, what is the upshot for now?  Undoubtedly we will see future coercion cases, and not just in healthcare.   While Medicaid is one of the oldest conditional spending programs, it is one of many. Other conditional spending programs include educational funding, transportation funding, environmental protection laws, and welfare laws, just to name a few.  The irony is that policing the federal-state relationship through coercion could actually lead to more pure federal programs and fewer cooperative federalism programs, thereby expanding federal uses of power and removing states from the policymaking. So, not only are the courthouse doors open to all forms of cooperative federalism that may be “coercive,” but also the federal government could either drop programs or take them over, either way cutting states out of the equation.

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.

He concludes:

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.

Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.

The Stanford Law Review Online has just published a Note by Kendall Turner entitled Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent. Turner argues that the Ninth Circuit has an opportunity to make an important change to the rules governing the application of First Amendment protections to the speech of public employees:

In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this behavior: after learning that certain suspects were not yet under arrest, he allegedly urged his employees to “beat another [suspect] until they are all in custody.”

After some delay, Dahlia reported his colleagues’ conduct to the Los Angeles Sheriff’s Department. Four days later, Burbank’s Chief of Police placed Dahlia on administrative leave. Dahlia subsequently filed a 42 U.S.C. § 1983 action against the Chief and other members of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights.

She concludes:

Dahlia offers the Ninth Circuit an opportunity to overturn Huppert and articulate a narrow understanding of Garcetti. This narrow understanding accords with the reality of public employees’ duties—for the duties they are actually expected to perform may differ significantly from the responsibilities listed in their job descriptions. A narrow reading of Garcetti is also essential to ensuring adequate protection of free speech: The answer to the question of when the First Amendment protects a public employee’s statements made pursuant to his official duties may not be “always,” but it cannot be “never.”

Read the full article, Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent at the Stanford Law Review Online.

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.

He concludes:

By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.

Read the full article, Software Speech at the Stanford Law Review Online.