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The Constitution At Work Session One: The Court and the Congress

The Constitution At Work Session One: The Court and the Congress. Supreme Court Decisions That Affect Our Lives OLLI at Vanderbilt – Spring Term 2013. Structure of the Course.

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The Constitution At Work Session One: The Court and the Congress

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  1. The Constitution At WorkSession One: The Court and the Congress Supreme Court Decisions That Affect Our Lives OLLI at Vanderbilt – Spring Term 2013

  2. Structure of the Course Session One – Historical background; The Court as a Check on Congress and the Executive (the Affordable Health Care Act litigation). [Bob Covington] Session Two—Constitution and Family. [Mark Brandon, Professor of Law and Professor of Political Science] Session Three—Death Penalty Issues. [Susan Kay, Associate Dean for Clinical Legal Education]

  3. Structure of the Course (cont.) • Session Four – The First Amendment (Thomas R. McCoy, Professor of Law, Emeritus) • Session Five – The First Amendment (David Hudson, Adjunct Professor of Law) • Session Six – Discrimination (Bob Covington)

  4. Quick 11th Grade American History Review: Events and Documents pre-1774 • Committees of correspondence • Formed both at colony and town level, often by legislative action; at first had only a short-term existence, but from 1772 on many became permanent until superseded by state governments. • Earliest: Probably Massachusetts in 1764 • Usual functions: Exchange information with other communities and colonies about steps being taken in response to various actions by the British parliament; slowly the range of authority grew until some constituted virtual “shadow governments.”

  5. Quick History: Events and Documents pre-1774 • Stamp Act Congress, 1765 • Met as response to New York and Massachusetts Bay resolutions • Nine of 18 British North American colonies present • Petitions sent to King, House of Lords, House of Commons; not all delegates felt authorized to sign • “Declaration of Rights” language: • 4th. That the people of these colonies are not, and . . . cannot be represented in the House of Commons . . . . • 5th That the only representatives of these colonies are persons chosen therein, by themselves; and that no taxes . . . can be constitutionally imposed on them but by their respective legislatures.

  6. Colonial America

  7. Colonial Transportation • NO: • Automobiles, cycles • Railroads • Canals • Steamships • Hotels • AVAILABLE: • Roads, suitable for horse traffic, some for carriages and wagons; First stagecoach service began 1766 between Philadelphia and New York (three days) • Rivers (flat-bottom “bateaus”) • Inns/taverns

  8. Colonial America: Roads

  9. Colonial communication • NO: • Telephone, telegraph, et cetera • AVAILABLE: • Postal service (smaller communities once a month; larger communities once a week or more, depending on how fast the “mailbag” filled. • Newspapers (often more advertising, poetry, diatribe than news, but becoming more “newsy” over time); 37 at the time of Independence

  10. B. Franklin’s Pennsylvania Gazette –an 1850 issue

  11. Quick History: The “Continental Association” – October 20, 1774 • September 1774: The first “Continental Congress” meets in Philadelphia; in October it adopts the provisions known as the “Continental Association.” These articles: • (a) impose trade boycotts until Britain repeals a variety of laws; (b) call for action by each colony’s government to enforce such bans; (c) recognize the function of the “committee of correspondence” in each colony; and (d) assume the continued existence of the Continental Congress. Signers include future Presidents John Adams and George Washington and future Chief Justice John Jay.

  12. Declaration of Independence -- 1776 • One nation or many? • “our Charters, . . . our most valuable Laws, . . . the Forms of our Governments, . . . our Legislatures” • “We, therefore, the Representatives of the united States of America, in general Congress, Assembled, . . . Declare that these United Colonies are and of right ought to be Free and Independent States.” • Includes protests against: • Quartering of troops • Suspension of trial by jury • Abolition of courts and refusal to apply “English law”

  13. The Articles of Confederation (drafted 1777; fully effective 1881) • Create a union of states, each of which “retains its sovereignty, freedom and independence and every power . . . not . . . expressly delegated” to the United States. • Provide for a Congress to meet every November, each state to have from two to seven delegates and one vote. • Limit the power of each state to negotiate treaties, declare war, or engage in military action, reserving these to the “United States in Congress assembled.”

  14. Articles of Confederation (cont.) • Create no executive branch as such, but a “president” of the Congress. With a one-year term • Provide for two types of “courts” [Article IX]: • “for the trial of piracies and felonies committed in the high seas” and “for receiving and determining finally appeals in all cases of captures” • To determine boundary disputes (a sort of sub-committee of the Congress itself) • Call for each state to give full faith and credit to the decisions of courts in other states

  15. United States Constitution • Drafted 1787; effective March 4,1789 • Structure: • Preamble • Article I: The Congress • Article II: The Executive • Article III: The Judiciary • Article IV: “Full Faith and Credit” clause; citizens entitled to move about freely from one state to another; governance of Territories and admission of new States • Article V: Amendment procedures • Article VI: The “supremacy clause”; recognition of existing debts • Article VII: Ratification procedure

  16. Constitutional Amendments: The Bill of Rights • Amendments I-X: The “Bill of Rights” [First Congress][Effective December 1791] • I: Freedom of assembly, petition, religion, speech • II: Well-regulated militia; Right “to bear arms” • III: No quartering of soldiers in private homes • IV: Limits on search and seizure; warrants • V: No conviction save through due process of law; self-incrimination not required; government takings of property limited

  17. Bill of Rights (cont.) • Amendments (cont.) • VI: Right to speedy trial; right to counsel • VII: Trial by jury preserved • VIII: No “cruel or unusual” punishment; no “excessive” bail • IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” • X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

  18. Later Amendments • XI: Federal courts not empowered to hear suits brought against a State by citizens of another State or nation. [1795] • XII: Electoral college to vote for President and Vice-President separately [1804] • XIII: Slavery abolished [1865] • XIV: No state to abridge the privileges and immunities of any “citizen of the United States”; no deprivation of life, liberty or property without “due process” of law; all persons entitled to “equal protection” [1868]

  19. Later Amendments (cont.) • XV: Right to vote not to be denied on basis of race, color or prior status as slave [1870] • XVI: Congress empowered to tax incomes [1913] • XVII: Popular election of Senators [1913] • XVIII: Prohibition of sale of alcoholic beverages [1919] • XIX: Right to vote not to be denied on basis of gender [1920] • XX: Fixes new dates for inauguration of Congress, President, Vice-president [1933]

  20. Later Amendments (cont.) • XXI: Prohibition Amendment repealed [1933] • XXII: President to serve no more than two terms [1951] • XXIII: District of Columbia to participate in election of President [1961] • XXIV: No poll tax [1964] • XXV: Presidential succession; selection of Vice-president in case of vacancy [1967] • XXVI: 18-year old vote [1971] • XXVII: No change in salaries of sitting Congress [1992]

  21. The Supreme Court • Created by Article III, Judiciary Act of 1789 • Justices nominated by President (Article II, §2); Originally one Chief Justice, five Associate Justices • After varying from five to ten, the Court has consisted of nine Justices since 1869 • Each original Justice would “ride circuit” much of the year, coming together for four to six weeks each February and August (limited mandatory circuit participation continued until 1891)

  22. The Current Court • Chief Justice: • John G. Roberts, Jr. (appointed 2005)(b. 1955) • Associate Justices: • Antonin Scalia (1986)(b. 1936) • Anthony M. Kennedy (1988)(b. 1936) • Clarence Thomas (1991)(b. 1948) • Ruth Bader Ginsburg (1993)(b. 1933) • Stephen Breyer (1994)(b. 1938) • Samuel Alito (2006)(b. 1950) • Sonia Sotomayor (2009)(b. 1954) • Elena Kagan (2010)(b. 1960)

  23. The Court’s Workload • Original jurisdiction • “In all cases affecting Ambassadors, other public ministers and consuls and those in which a state shall be a party” [Article III, section 2] • Typically, the Court appoints a special master to handle the actual development of the factual basis of these cases (such as boundary disputes), and [sometimes] recommend a resolution • Appellate jurisdiction • “All other cases” • Appeals • Grants of writs of certiorari

  24. The English “Common Law” Tradition • “Courts find law; legislatures make law.” • Stare decisis: the importance of precedent • Differentiating “holding” from “dictum” • What makes a case different enough to refuse to apply earlier holdings? • When is a court justified in overruling a prior case? • Obvious cases: Constitutional amendments, statutes that require different outcomes [Dred Scott; XIIIth, IVth, XVth Amendments; ] • Less obvious cases: changes in society [admission of women to the bar; Bradwell v. Illinois, 84 U.S. 130 (1873)]

  25. The Court as Referee: Marbury v. Madison , 5 U.S. 137 (1803) • Early days of American politics: the emerging party system • Federalist President John Adams loses to Democratic-Republican candidate Thomas Jefferson in the election of 1800. • The “lame duck” Congress, with a Federalist majority, creates a number of judgeships and Adams appoints the persons to serve. • The appointments become fully effective on delivery of a commission, that delivery being the duty of the Secretary of State.

  26. Marbury v. Madison (cont.) • William Marbury had not received his commission as a justice of the peace when Jefferson took office on March 5, 1801. • Jefferson ordered his Secretary of State, James Madison, not to deliver the commission. • Marbury sued, filing his action in the United States Supreme Court. • Marbury sought a writ of mandamus, which would order Madison to deliver the commission.

  27. Marbury v. Madison (cont.) • A unanimous court ruled that it would not issue the requested writ, after analyzing three issues: • First, was the failure to deliver the commission illegal? [Answer: Yes] • Second, does the wrong done to Marbury justify a legal remedy? [Answer: Yes] • Third, may this Court provide the writ of mandamus remedy? [Answer: No] • The answer to the third issue flows from the Court’s reading of section 13 of the Judiciary Act of 1789 as compared to Article III, § 2, of the Constitution.

  28. The “judicial review” rationale • “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitu-tion . . . The court must decide that case conformably to the law, disregarding the constitution; or conformably to the constitu-tion, disregarding the law.”

  29. The opinion author: Chief Justice John Marshall

  30. John Marshall(b. September 24, 1755, d. July 6, 1835) • Chief Justice, January 31, 1801-July 6, 1835 • Nominated by John Adams • Former Secretary of State under Adams (1800-1801) • Many major decisions concerning federal-state relationship • McCulloch v. Maryland: States may not tax federal agencies • Gibbons v. Ogden: Federal statute governing steamship licensing preempts state power to govern the same activity

  31. Some common varieties of Constitutional argument • The Congress has used a power too broadly (typical Article I, section 8 case). • The Congress has violated a specific prohibition in the Constitution (typical Art. I, § 9 or First Amendment case). • A state has acted on issues entrusted entirely to the national government. (Art. 1 § 10) • A state has enacted laws inconsistent with Congressional action. (Art. VI, ¶ 2) • A state has violated a specific Constitutional prohibition. (E.g., the XIVth Amendment Due Process clause.)

  32. Two Centuries Later: National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012) • A challenge to particular provisions of the Patient Protection and Affordable Care Act, enacted in 2010. • The “mandate” that most adult individuals purchase health insurance coverage or pay a “shared responsibility payment” for failing to do so • The requirement that individual states expand their Medicaid programs or potentially lose some anticipated federal funds • Three cases, consolidated into one

  33. The parties • National Federation of Independent Business, alleging that its members will be adversely affected in a variety of ways by the “mandate” requirement and related provisions • Twenty-six states, protesting the impact of broadened Medicaid eligibility • Individuals, protesting the “mandate” on various grounds • Lead defendant: Kathleen Sebelius, Secretary of Health and Human Services

  34. The challenged statute • Lengthy and complex • Table of contents: 16 pages • “Certified” text (with a bit of white space here and there) runs 2,409 pages; an ordinary print 900+ pages • Ten broad divisions: • Title I: Quality, Affordable Health Care for All Americans • Title II: Role of Public Programs • Title III: Improving the Quality and Efficiency of Health Care • Title IV: Prevention of Chronic Disease and Improving Public Health

  35. The statute (cont.) • Title V: Health Care Workforce • Title VI: Transparency and Program Integrity • Title VII: Improving Access to Innovative Medical Therapies • Title VIII: CLASS Act (Community Living Assistance Services and Support) • Title IX: Revenue Provisions • Title X: Strengthening Quality, Affordable Health Care for All Americans

  36. The statute (cont.) • Overall approach highlights: • Maintains many existing programs, particularly employment-based health insurance; no “single payer” although Medicaid grows in significance • Adds a “new” player in the form of health insurance “exchanges”– probably often internet-based • Increases the proportion of Americans covered by health insurance, both private and public • Requires a high proportion of health insurance premiums to be used for actual provision of health care services, by limiting administrative costs (including salaries, dividends) to 15 or 20 per cent (depending on nature of insurer)

  37. The statute: Emphasis on expanding coverage • Why such a central focus: • Those not covered • Often untreated until a condition is both serious and expensive to treat • Usually lack a primary care physician and so are likely to use an emergency room for care, at relatively higher cost • Often are unable to pay for treatment, so that the cost of their treatment is shared in some way between those providing care and other patients who use the same care providers

  38. Expanding coverage (cont.) • Reasons why many are not insured • The “adverse selection” problem – those who choose no coverage are often those likely to need care only in exceptional cases (e.g. accidents) • The “cherry picking” and “inside limits” problems – individuals with pre-existing conditions unable to get meaningful coverage at affordable rates • Very low income thresholds for Medicaid eligibility • The statute’s solutions • Eliminate cherry picking and inside limits • Require almost all adults to obtain insurance • Require states to use a different income threshold

  39. The complex language of the statute: The “mandate” provision: 26 U.S.C. § 5000A • (a) Requirement to maintain minimum essential coverage • An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.

  40. “Mandate” language (cont.) • (b) Shared responsibility payment • (1) In general • If a taxpayer who is an applicable individual. . . fails to meet the requirement of subsection (a) for 1 or more months, then, except as provided in subsection (e), there is hereby imposed on the taxpayer a penalty with respect to such failures in the amount determined under subsection (c). . . . • (2) Inclusion with return • Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.

  41. “Mandate” language (cont.) • (d) Applicable individual • For purposes of this section— • (1) In general • The term “applicable individual” means, with respect to any month, an individual other than an individual described in paragraph (2), (3), or (4). • (2) Religious exemptions . . . • Religious conscience exemption • Health care sharing ministry • (3) Individuals not lawfully present . . . • (4) Incarcerated individuals . . .

  42. “Mandate” language (cont.) • (e) Exemptions • (1) Individuals who cannot afford coverage . . . • (2) Taxpayers with income below filing threshold . . • (3) Members of Indian tribes . . . • (4) Months during short coverage gaps . . . • (5) Hardships . . .

  43. Medicaid coverage expansion provision, 42 U.S.C. § 1396(a)(10)(VIII) • Contents A State plan for medical assistance must— . . . (10) provide— . . . (A) for making medical assistance available . . . to— (i) all individuals— . . . (VIII) beginning January 1, 2014, who are under 65 years of age, not pregnant, not entitled to, or enrolled for, benefits under [other provisions of this statute] . . . . and whose income (as determined under subsection (e)(14)) does not exceed 133 percent of the poverty line (as defined in section 1397jj(c)(5) of this title) applicable to a family of the size involved . . . .

  44. Medicaid expansion language (cont.) • 42 U.S.C. § 1397jj(c)(5): The term “poverty line” has the meaning given such term in section 9902(2) of this title . . . . • 42 U.S.C. § 9902(2) The term “poverty line” means the official poverty line defined by the Office of Management and Budget. . . . . The Secretary shall revise annually . . . the poverty line . . . .

  45. Huh? • From the Federal Register, January 20, 2011: “Due to confusing legislative language dating back to 1972, the poverty guidelines have sometimes been mistakenly referred to as the OMB . . . guidelines . . . . In fact, the OMB has never issued the guidelines; the guidelines are issued each year by the Department of Health and Human Services. . . . Under the authority of 42 U.S.C. § 9902(2).”

  46. 2012 Poverty Guidelines • Persons in household Poverty guideline • 1 $11,170 • 2 15,130 • 3 19,090 • 4 23,050 • 5 27,010 • 6 30,970 • 7 34,930 • 8 38,890 • For households with more than 8 persons, add $3,960 for each

  47. Briefs and Arguments • In addition to the original petition for a writ of certiorari (request that the Court hear the case), eighteen briefs submitted • Oral argument held on three successive days, March 26, March 27, March 28 in 2012

  48. The Opinions • Chief Justice Roberts, joined in part by Justices Ginsburg, Breyer, Sotomayor, and Kagan (59 pages) • Justice Ginsburg, joined by Justice Sotomayor, and joined in part by Justices Breyer and Kagan (61 pages) • Justice Scalia, joined by Justices Kennedy, Thomas, and Alito (65 pages) • Justice Thomas (2 pages)

  49. Five Issues before the Court • Does the Anti-Injunction Act apply? • Is the Medicaid Expansion justified under the “spending power” granted the Congress? • Is the “mandate” that individuals purchase health insurance within the power of Congress under the “commerce clause”? • In enacting the “mandate” did the Congress act within its powers under the “taxing” authority granted by the Constitution? • If the Court strikes down either or both, does the statute as a whole fail?

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