The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

The full essay is at "Free Speech and Public-Accommodations Law"

Presidential Authority and Bureaucracy: Regulatory Agencies

Circulating in Congress in the fall of 2012 was a bill that would have allowed "the White House to second-guess major rules and mandate that agencies carefully study the economic effects of new regulation. The change could, in effect, delay a number of rules for the financial industry. Those who support preserving the status quo where Wall Street regulates itself will find much to like in this legislation," said Amit Narang, a regulatory policy advocate at Public Citizen, a nonprofit government watchdog group.[1] President Obama had received $1 million from Goldman Sachs as a campaign contribution in 2008. Yet of how much value to Wall Street is a mere delay in regulation? Some, surely, but not enough to make this the decisive issue here. Rather, I submit that the president's control as chief executive of the regulatory agencies and the added bureaucracy are more salient in this case study. 

The full essay is at "Presidential Authority and Bureaucracy." 

1. Ben Protess, “Lawmakers Push to Increase WhiteHouse Oversight of Financial Regulators,” The New York Times, September 10, 2012. 

On the Unitary and Imperial American Presidency

In December 2009, Abdullah II, King of Jordon, dismissed the prime minister and replaced him with a palace aide and loyalist, dissolved Parliament, and postponed legislative elections for a year.   For all the defects of a representative democratic system, it is far superior to autocratic rule, especially by a dictator.   It is natural for people to resist preemption. “The nature of humans is they want democracy,” said Ali Dalain, an independent member of the Parliament that was dissolved. “One person cannot solve all problems and cannot make everyone happy, so people must share in determining their fate.”[1] These quotes are revealing from the standpoint of the American notions of the unitary executive and the imperial presidency.    

The full essay is at "The Unitary and Imperial U.S. Presidency."

1. Michael Slackman, "Jordan's King Remakes His Government," The New York Times, December 22, 2009.

On the Economic Justification of American Society and Federalism: The Oxymoron of Congress Mapping the Human Brain

In his 2013 State of the Union Address, President Obama cited brain research as an example of how the government could and in fact should literally “invest in the best ideas.”[1] He cited the $140 return to the economy from every dollar that had been invested to map the human genome, and added that funding the Brain Activity Map would be a job-creating investment in science and innovation. In terms of comparative economic advantage, he said, enlarging the “knowledge economy” would be a good strategy for maintaining a formidable standard of living. As laudatory as more knowledge of the human brain is, Obama's perspective suffers from economic reductionism and a lack of political basis.

A Congressional rendering of how the human brain might be mapped.  Source; nytimes.

The full essay is at "Economic Reductionism of Society and Federal Government."

1. John Markoff, “Obama Seeking to Boost Study of Human Brain,” The New York Times, February 17, 2013.

The Ministerial Exception: A Religious Right to Discriminate

In early 2012, the U.S. Supreme Court recognized, for the first time ever, a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference. In his written opinion, Chief Justice Roberts wrote, “The Establishment Clause [of the First Amendment to the U.S. Constitution] prevents the government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” The wrench in the works here concerns the matter of delimiting the exception, given the inflation in what constitutes “ministerial” in terms of tasks.

The full essay is at "The Ministerial Exception."

Christianity by State: The Religious Dimension of Federalism

According to the  2010 U.S. Religious Census of Religious Congregations & Memberships Study by the Association of Statisticians of American Religious Bodies, less than 50 percent of the people living in the United States identified themselves as Christian adherents in 2010. There were more than 150.6 million out of 310 million. Even so, candidates for the U.S. presidency still felt the need to vocalize the fact that they are Christian (while the opponent doesn't quite measure up in that respect). President Obama made a point during his first two years in office to stress his Christianity as if it were the membership card to the Oval Office. It would seem that the litmus test was already antiquated and thus needlessly constrictive on potential candidates.

The full essay is at "Christianity by State."

Automatic Standing: The American States in Federalism Cases

Unlike that of the E.U., the U.S. system of public governance is structurally biased toward  political consolidation at the expense of federalism. In fact, the bias extends to jurisprudence. This is evident in a ruling by the U.S. Court of Appeals for the Fourth Circuit on September 8, 2011 against Virginia on the 2010 federal health-insurance reform law.

The full essay is at "Spending in American Federalism."

Federalizing the Criminal Code: Racial Opportunity Costs

On December 13, 2011, a bipartisan group of legal experts told a panel of lawmakers in the U.S. House of Representatives that the federal criminal code had grown so large that U.S. citizens could not possibly keep up with it. “We ought to get rid of the old myth that you’re presumed to know the law,” Rep. John Conyers (D-Mich.) said. About 4,500 criminal statutes exist, according to Ed Meese, a former U.S. Attorney General under President Reagan. “This is in addition to over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison,” he said. “So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize.” The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.

The full essay is at "Federalizing Everything."

The U.S. Senate in Disarray: Founding Principles or Mismanagement?

Herding cats. This expression typically is used to describe two arcane artifacts of human organization: academic faculties and the U.S. Senate. In the latter case, the operational difficulty stems at least in part from the principles on which the legislative chamber is based. More particularly, the senators represent semi-sovereign polities rather than individuals, and governmental autonomy, however slight that may be, translates into senate mechanisms such as the filibuster as well as the related super-majority needed to end such a “debate,” and the power that a single senator has to object to a unanimous-consent request made on the Senate floor. In May 2015, Mitch McConnell, the majority leader, found himself mired in both mechanisms as he sought to end debate on whether to give the Pacific trade deal (TPP) fast-track (i.e., no amendments) treatment, and then to extend the Patriot Act. Whereas The New York Times points to McConnell’s failure to live up to his promise to take the Senate back to its committee process and away from passing legislation by senate leaders making deals such as by horse-trading, I contend that more utility lies in examining how the Senate’s basic principles contribute to the dysfunction.[1]

The complete essay is at Essays on Two Federal Empires.



See also: “The U.S. Senate Approves Fast-Track for Pacific Trade Deal.”

---

[1] Jennifer Steinhauer and Jonathan Weisman, “N.S.A. and Other Matters Leave McConnell’s Senate in Disarray,” The New York Times, May 23, 2015.

Chief Justice John Roberts: Federalism Beyond Medicaid

“As chief justice, Roberts has been extremely careful with the institutional reputation of the court.” So says one of the lawyers who filed a brief to unhold Obama’s signature health-insurance law of 2012. Even so, the Roberts court had since 2005 cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants, and the government’s authority to take race into account in college admissions decisions. The question of the reach of federal power, which is at the heart of the case on the health-insurance law, has been less salient, particularly relative to the Rehnquist court, according to Sri Srinivasan, principal deputy solicitor general for the U.S. Government at the time of the case.

The last time the U.S. Supreme Court had “ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.” Not long after he joined the U.S. Court of Appeals for the District of Columbia Circuit in 2003, Roberts argued unsuccessfully that the commerce clause should not be used by Congress to protect an endangered species—a toad—which “for reasons of its own, lives its entire life in California.” That is at least predominately not an economic objective, however, and the Morrison and Lopez cases in the Rehnquist court had dealt with non-economic objectives through the commerce clause.

                            John Roberts, Chief Justice of the U.S. Supreme Court                       Brendan Hoffman/NYT

Roberts’ general view regarding the commerce clause can be grasped from what he said at his confirmation hearing to be the Chief Justice. “It is a broad grant of power,” he said. Congress “has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.” If he meant that Congress has the definitive authority to assess whether a proposed Congressional law fits within the commerce clause, Roberts was putting Congress in a conflict of interest in terms of Congressional power.

Concerning the conflict of interest, the vested interest that Congress has in its own authority can be expected to weigh heavily in any self-determination concerning whether the commerce clause applies to a piece of legislation. Separation of powers does not forestall the Court from its responsibility to interpret the U.S. Constitutional through judicial review of Congressional laws. Even if it can be assumed that lawmakers who voted for Obama’s health-insurance law believed the commerce clause justifies the mandate, those lawmakers should not have the final say in judging the matter of their own use of power. Otherwise, there is little in the U.S. Constitution that can limit government, and this is what a constitution does for a living.

Fortunately, Roberts did not leave the matter of the health-insurance mandate to Congressional judgment in the oral arguments. Like some of the other justices, he expressed concern over the power of Congress to create commerce by forcing citizens to purchase a product even so that the manner of payment for healthcare could be better regulated. Such a concern was hardly new. His observation on the following afternoon concerning whether the Congressional expansion of Medicaid violates the states’ sovereignty, and thus federalism, is more stunning as a rebuke on Congressional power.

At issue in the oral arguments over Medicaid was whether the discretion of the Secretary of Health and Human Services to withhold all federal funding for Medicaid should a state government refuse the expansion financed 90 percent by the U.S. Government constitutes coercion. Justice Breyer suggested that such a threat was not rational and thus could not stand as viable discretion, even given the statute’s allowance. However, Justice Scalia pointed out that a statute itself need not be rational. Even if coercion is not involved in offering a gift of federal money, the threat to withhold what the state had been accustomed to receive could constitute coercion because the states had already become dependent on the federal trough.

The reality is, the Chief Justice said, the states have “since the New Deal” cheerfully accepted federal money. “It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done.” He could well have ended his statement with “has given.”  Of course, the “gifts” of federal money have come with strings, and the expansion of Medicaid that was at issue in the oral arguments is no exception. Indeed, the expansion is backed up by an explicit threat of withholding the existing funding should a state government refuse. Beyond the question of whether either the strings or the threat constitute coercion, Justice Roberts’ broad constitutional observation of compromised independent sovereigns transcends the issue of Medicaid. American federalism itself has been compromised.

The state governments, which together constitute a system of government within the federation, have become like dependent vassals from decades of taking money from the General Government of the Union. States implementing federal statutes constitutes decentralized consolidation, not federalism. The federal model constructed in convention in 1787 requires two systems of government, each of which is sovereign in its own domains of power authorized by a constitutional document. A reduction to one sovereign is like collapsing one lung, and the person is compromised. What were to be sovereigns having residual power and able to serve as a check on overreaching by another sovereign, the federal government—one of limited powers—had been compromised by dependency. As salubrious as gift-giving is, if the practice makes others dependent over time, sickness impairing liberty is bound to result.

In a unanimous decision in 2011, Justice Kennedy wrote that limiting the power of the U.S. Government “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.” When a government in a federal system of public governance (e.g., the U.S. Government) is allowed to encroach on the domains of another system of government in the federation (e.g., the state governments), the precedent is established by the deed itself whereby the constitutional parchment is relegated or rendered wholly impotent in constraining government. As providing constraints on government is the job of a constitution, the constitutional basis of governance itself is compromised when one government in a federal system gets away with monopolizing the governmental sovereignty. Ultimately, the rule of law is compromised here by power aggrandizement—an addiction to power that operates in denial of constraints.

Regardless of whether the states were at fault in taking so much federal money or Congress had over-reached even in offering the gifts (gifts with strings), the federal system itself is out of balance, or sick, because the states are no longer governmentally sovereign. To prescribe a treatment, the medicinal focus must go beyond questions of fault to arrive at remedies oriented to restoring health to the system as a whole. That is to say, the focus must be on the overall system of federalism. Deferring to the patient (i.e., Congress), saying in effect, heal thyself, is a recipe for death. With the people largely unconscious, the media and popular politics myopic, and the presidency too often issue-oriented and partisan rather than oriented to the whole, Chief Justice John Roberts may hold the fate of the patient in his hands.

 

Sources:

Adam Liptak, “In Health Act, Roberts Given Signature Case,” The New York Times, March 12, 2012.
http://www.nytimes.com/2012/03/12/us/health-care-act-offers-roberts-a-signature-case.html?pagewanted=all

Adam Liptak, “On Day 3, Justices Weigh What-Ifs of Health Ruling,” The New York Times, March 29, 2012. http://www.nytimes.com/2012/03/29/us/justices-ask-if-health-law-is-viable-without-mandate.html?pagewanted=all

Adam Liptak, “Appealing to a Justice’s Notion of Liberty,” The New York Times, March 30, 2012. http://www.nytimes.com/2012/03/30/us/justice-anthony-m-kennedy-may-be-key-to-health-law-ruling.html

Mexico’s Name-Change: A United States No Longer?

Shortly before leaving office, Mexican President Felipe Canderón sent to the Mexican legislature a proposal to amend the state’s constitution by renaming the country “Mexico,” from the “United Mexican States.” His rationale was that Mexico didn’t need “a name that emulates another country and which none of us Mexicans uses on a day-to-day basis.” Indeed, the emulation evinces a category mistake in that it treats what was province in an empire, that of New Spain, as an empire.

                                   Mexico's head of state, Felipe Calderon, who proposed the name-change.  

The full essay is at Essays on Two Federal Empires, available at Amazon.

E.U. Directives: Applicability to American Federalism

Far from having gone off the court to an easy retirement in the Bahamas, U.S. Supreme Court justice John Paul Stevens found a calling in advocating the addition of four words to the U.S. constitution, here put in italics: “The laws of the United States . . . shall be the supreme law of the land; and the judges and other public officials in every state shall be bound thereby.” While the proposal seems innocent enough, and even a matter of progress after the fashion of the E.U. Stevens’ rationale befits the more general shift at the time from federalism to consolidation in American governance.

The complete essay is at Essays on Two Federal Empires, available at Amazon.

SCOTUS Decision on Obama's Healthcare Act: The States v. The Poor

The U.S. Supreme Court ruled on June 28, 2012 that the mandate in the Affordable Healthcare Act (“Obamacare”) is not constitutional under the commerce clause (i.e., Congress cannot force citizens and residents to buy health insurance). As per Scalia’s dissent, “when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond ‘adjust[ing] by rule or method,’” which is how “to regulate” has been defined. To adjust by rule or method is not to bring the product of commerce into being, but, rather, to assume its existence.  Instead of being considered a regulation affecting commerce between the states, the core element of the Affordable Care Act of 2010 survives in the decision as a penalty under “Congress’s enumerated power to ‘lay and collect Taxes.’ (Art I, sec. 8, clause 1).” Essentially, Congress has the authority to tax people who decide to go without health insurance. From Robert’s opinion for the Court, “the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes . . . And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax” (p. 32). This reasoning essentially saved the Act.

To be sure, the Court did not allow the Affordable Care Act to survive intact. Besides invalidating the rationale for the mandate under the commerce clause, the decision holds that states can refuse to go along with the expansion of Medicaid under which more of the poor, who are not able to afford insurance for lack of income, are to be included in the program. At the time, “the Medicaid program required states to cover only certain discrete categories of needy individuals—pregnant women, children, needy families, the blind, the elderly, and the disabled.” There was no mandatory coverage for most childless adults. In the expansion, all individuals under the age of 65 with incomes below 133 percent of the federal poverty line are covered.

It can be asked whether people who cannot afford insurance at all will be able to be covered by the expanded Medicaid program, given that the decision enables states to refuse the expansion. In its decision, the Court ruled that Congress cannot withhold the existing Medicaid funds of states that refuse to go along with the change. In her statement from the bench, Ginsburg noted that "seven members of the Court . . . buy the argument that prospective withholding of anticipated funds exceeds Congress' spending power." In other words, Congress cannot use its spending power to threaten states.  In his majority opinion, Chief Justice Roberts points out that Congress can offer additional grants to states—essentially bribing them into going along with the expansion—but a state’s existing Medicaid funding cannot be threatened.

House Minority Leader Nancy Pelosi (D-Calif.) reacted to the ruling by opining that, nonetheless, the states would find the Medicaid funds hard to resist. “A big expansion of Medicaid is part of this bill, as you know, and in order to make it saleable and tactical, we have 300 percent of the benefits described in this bill paid for in Medicaid to the states those first three years of the bill. I don't think the governors will turn that down,” she said. "First of all, the people will have the need; the urgency is there. They don't have to have any matching funds. . . . I believe that once this bill is rolling and states experience the benefits of it, it will be very hard for a state to say, ‘I'm not taking 100 percent of the coverage that Medicaid would provide for these people.’ That's our thinking on the subject," she added. She did not say, however, that after 2016 the states could have to pick up as much as 10 percent of the cost of the expanded benefits. Moreover, she did not address the possibility that ideology could trump even the financial incentives. 

Indeed, some Republican Governors were already holding back from saying whether they would accept the Medicaid funds. One Republican governor, Florida's Rick Scott, didn't waste any time in coming out against the expansion on the grounds that the government of Florida could not afford the increase. "Florida will opt out of spending approximately $1.9 billion more taxpayer dollars required to implement a massive entitlement expansion of the Medicaid program," the former health care executive said. At the time, roughly 4 million of 19 million Floridians lacked health insurance. That's a bit more than 20 percent of the population. To be sure, Scott acknowledged that for three years, from 2014 to 2016, the federal government would pay all the costs of the expansion, but after that, "the burden increasingly shifts to Florida taxpayers." Of course, those taxpayers are also U.S. taxpayers, and in this capacity they would be contributing to the expansion in other states beginning in 2014, without any benefit going to themselves. 

Thinking along such lines, Jacob Lew, the White House chief of staff at the time, predicted that the "vast majority of the states will come in. For those few that are slow to come in, they're going to have to answer to people why they're turning this down and why they're letting people go without coverage." However, Republican Governors such as Scott could appeal to other priorities, especially those that are favored by voters who already have health insurance. Accordingly, Scott argued that Medicaid was "growing three and a half times as fast as Florida's general revenue," and was already taking away money needed for education. In effect, Scott was already building an electoral majority with an interest in letting 20% of the population in Florida continue without health insurance. 

Accordingly, the Democratic leaders in the federal government may have been overly optimistic in assuming that universal coverage in these United States would result from the law. To be sure, some of the states that had Republican governments at the time would probably "flip over" to the Democrats at some point. It would be difficult for a later Republican governor to take the expanded benefits away. Even so, Scott's ideological preference for education over an expansion in medical entitlements for the poor can be expected to be more popular in some of the American republics than in others. The U.S. itself is a veritable empire, both in terms of territory and in being a union of republics. A one-size-fits-all federal law that involves ideological preferences is thus suboptimal. In other words, it makes perfect sense that states should be free to opt out of the expansion of Medicaid (i.e., as per their respective ideological preferences). There is, however, a cost, which is borne more by some than others.

Republican Governors Rick Scott (FL), Scott Walker (WI) and Bobby Jindal (LA)

Were other states, like Louisiana and Wisconsin, to say “thanks but no thanks” to the expansion, the Affordable Care Act would fall significantly short of providing universal health insurance. In the states without the expanded Medicaid, the poor people would presumably not be able to afford individual health insurance (which does not have the required cost advantages of group plans), and yet the mandate would apply so they would be subject to the tax imposed on people who do not have health insurance. The 4 million uninsured Floridians would find themselves suddenly subject to an annual tax collected by the IRS were they unable to afford the premiums for private individual insurance. Scott may really have been putting poor Floridians in dire straits. At the very least, Congress could exempt them from the tax, even if doing so would give other states more of an incentive to balk on the expansion.

As a guiding principle, Congress should encourage rather than thwart state-choice, restricting it when necessary to preserve the Union, even as Congress also provides minimum U.S.-wide protection to the minority position in any state so the people don't fall through the cracks. To fortify federalism without leaving the most vulnerable out in the cold in terms of health-care, the Congress could establish a minimum level of sustenance as a basic human right deserved by any American citizen. Given their sovereignty retained, the fifty American republics could decide for themselves whether to go beyond the “basic common 'human' denominator.” The federal government would be directly responsible for the floor, with the states having as their own programs anything above the foundation.

Sources:

National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., 567 U.S. Supreme Court (2012).

Alex Becker, "Obama Health Care Law: Republican Governors, Legislators Not Ready to Fully Commit," The Huffington Post, June 30, 2012. 

Robert Pear, "Republican Governor of Florida Says State Won't Expand Medicaid," The New York Times, July 2, 2012.  

Amanda Terkel, “GOP Governors Resist Implementing Obama’s Health Care Law Despite Supreme Court Ruling,” The Huffington Post, June 29, 2012. http://www.huffingtonpost.com/2012/06/29/gop-governors-obama-health-care_n_1637456.html

No State Left Behind: American Education Eclipsing Federalism

Facing a federal requirement that every student be proficient in math and English by 2014, the member-states in the U.S. rushed to apply for waivers in 2011 and 2012. In 2010, 38 percent of the schools had failed to meet their goals for annual progress toward the 2014 goal. The U.S. Secretary of Education thought that figure could soar to 80 percent. When a school fails to meet such goals, the No Child Left Behind law requires “a series of interventions by the district and the state that can culminate in a state takeover. With so many schools failing, “that threatened to create an impossible burden on states and districts,” according to Chester Finn, director of an institute that studies education.[1] The waivers did not come without strings, however. The Obama administration pushed the governments to measure teacher performance, and put increased emphasis on low-performing groups as well as on the lowest-performing schools.

The full essay is at "No State Left Behind."

1. Richard Perez-Pena, “Waivers for 8 More States from ‘No Child Left Behind,” The New York Times, May 30, 2012.

The General Welfare Clause: Is the Power of Congress Constitutionally Unlimited?

Art. 1, Sec. 8. of the US Constitution: Congress “shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Does this clause mean that the US Government can legislate in any way that benefits the Union? According to Thomas Woods, the general welfare clause “was a restriction on the power of the federal government: it had to exercise the powers delegated to it with an eye to the welfare of the country as a whole, not to the particular advantage of one state or section.” That is to say, the Congress could provide for the general welfare of the United States only within its delimited powers listed in the US Constitution.

The complete essay is at Essays on Two Federal Empires.