Federal Appeals Court Upholds Health Care Reform Act

Today, a federal court of appeals upheld the health care reform legislation. The plaintiffs argued that Congress lacked the authority to pass the legislation and, specifically, to penalize individuals for not purchasing health insurance. A majority of the appeals panel held that the Commerce Clause gave Congress the power to enact the legislation. Although one judge dissented, none of the judges seem bothered by the "action"/"inaction" distinction that opponent of the legislation have asserted. None of the judges agreed that the penalty was a tax.

Opponents of the law have argued that while Congress can regulate economic "activity" under its Commerce Clause authority, it cannot regulate "inactivity" -- or the status of being uninsured. The court ruled that the penalty allows Congress to regulate activities including self-insurance, which drives up the price of medical services and insurance in the interstate markets. I have made a similar argument on this blog (see, e.g., here). Ruthann Robson at Constitutional Law Prof Blog provides a nice summary of the ruling.

More Hot Air from "Hot Air": Implies Healthcare Reform Unconstitutional

No serious Constitutional Law scholar has argued that healthcare reform (in any of the currently proposed formats) is unconstitutional. Some conservative commentators, however, have tried unsuccessfully to float the argument.

Yes, Virginia, Healthcare Reform Is Constitutional
On August 22, David Rivkin Jr. and Lee A. Casey, two rightwing attorneys, argued in the Washington Post, that healthcare reform violated the Constitution. Their argument, however, only captured the hearts of conservatives desperate to find a good good reason to oppose healing the sick.

Today, the conservative blog Hot Air tried to revive the argument by posting footage of Senator Mark Warner explaining why healthcare reform is constitutional. Although the video link no longer works, the summary by Hot Air states that Warner cites to the Commerce Power as authority for healthcare reform. This is exactly correct, but I would add the Taxation and Spending Powers as well. I have thoroughly analyzed this issue in a prior blog post (and in the comments section to that post). Even conservative Constitutional Law professors have made similar arguments (see the post I linked).

Absurdity of the Question
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

Finally, I find it ironic that the GOP's so-called Bill of Rights for Seniors pretends to offer protection for Medicare, while conservatives have repeatedly asserted that healthcare reform violates the Constitution. If Congress lacks the power to pass healthcare reform, then it probably lacks the power to create Medicare, which conservatives claim to support. The inconsistencies are absolutely dizzying.

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

For over a year now, virtually every candidate for elected office has appropriated Obama's highly successful "change" mantra. But if you have taken just a few moments out your holiday festivities to read the latest political developments, Washington, DC will remain the same absent some catastrophic event.

What Happened to the Economy, Health Care, the Wars, and Civil Rights?
Despite all of the urgent problems the country needs to address, Senate Democrats apparently believe that their first major constitutional, political and media battle in 2009 should center around a two-year, filler Senate position. And as I write this essay, Republicans have just threatened to play the same game and block comedian Al Franken from representing Minnesota in the Senate -- despite his apparent 39-point victory over GOP incumbent Norm Coleman.

With such frivolity unfolding, our trustworthy media will undoubtedly flock like lemmings to Capitol Hill where they will remain planted and reporting every single development or rumored development in the messy drama. [Editor's Note: Despite the new Franken-Coleman developments, for the sake of space and my own sanity and free time, this essay focuses exclusively on the Blagojevich-Burris-Reid affair.]

Blagojevich Performing His Obligations As Governor
The 17th Amendment authorizes states to conduct Senate elections (Article I addresses the House) and to fill vacancies when they arise. In the event of a vacancy, the Constitution gives states the option of holding a special election or allowing a governor to choose the replacement. Illinois law allows the governor to fill Senate vacancies, and the current governor has done so, by naming Roland Burris to occupy Obama's vacated seat.

Not so fast, say Senate Democrats. Democrats refuse to allow Burris to occupy the seat because a federal prosecutor has filed a criminal complaint against Illinois Governor Rod Blagojevich, accusing him, in part, of conspiring to profit from public office by selling the vacated seat.

Many constitutional law scholars (myself included) believe that the weight of historical evidence, constitutional text, and Court doctrine deny the Senate the authority to veto Blagojevich at will. Nevertheless, Harry Reid, the Senate Majority Leader, says that the criminal charges place a "taint" over the selection process that renders any appointment by Blagojevich illegitimate, which in turn empowers the Senate to disregard Burris or any other candidate the governor had selected. I'm not buying this argument -- at all.

Legally, Governor Blagojevich's Position Remains Unaltered
Despite the filing of criminal charges against Blagojevich, his role as governor has not changed. Blagojevich has not been convicted or even indicted, and even if he had been, this alone would not effectuate his removal from office.

Also, the Illinois legislature declined to deprive Blagojevich of the power to fill the vacancy -- a move that, if successful, would have prevented the current conflict. Instead, the Attorney General asked the Illinois Supreme Court to declare Blagojevich incompetent to serve -- in other words, to conduct an undemocratic judicial impeachment of the governor. The court, however, refused to do so. Meanwhile, impeachment proceedings have progressed at a snail's pace.

To make matters worse, the prosecutor has announced that he needs an additional three months to prepare a case against the governor, but he has requested that the impeachment panel refrain from taking testimony from alleged candidates (or their agents) with whom Blagojevich allegedly tried to make a deal. Due process, however, requires that material witnesses participate in fact-finding proceedings so that the accused can confront them and factfinders can develop a reliable record.

If the Illinois impeachment panel progresses without testimony from material witnesses, then its conception of due process will rival that of the outgoing Bush administration. Nonetheless, the panel has now promised to deliver a "quickie" impeachment with results by as early as next week.

The impeachment panel's promise reduces to simple equation: Withholding necessary witnesses PLUS steamrolling the proceedings EQUALS a denial of procedural fairness. With liberals promising to conduct rapid, outcome-already-determined impeachment proceedings without testimony from material witnesses change has not arrived, certainly not in Illinois -- the cradle of change.

Reid's "Taint" Argument Is Tainted
Reid and his supporters argue that the Senate must exclude any candidate Blagojevich selects because the criminal complaint taints the selection process. But the "taint" argument does not hold up to scrutiny. First, "taint" is such a broad and amorphous concept that it could support a Senate veto under an infinite number of scenarios, which would effectively obliterate the 17th Amendment's framework, which authorizes states to fill Senate vacancies.

That taint argument also assumes wrongdoing by Blagojevich simply because a prosecutor accused him of committing a crime. Personally, we might "believe" that Blagojevich is guilty of a crime, but a criminal complaint is simply a set of allegations -- not facts.

The constitution that I teach mandates that prosecutors prove allegations against defendants -- not that defendants prove their innocence. In other words, our constitutional culture assumes the innocence of the accused. Court doctrine treats the presumption of innocence as an essential element of a system of justice and ordered liberty.

Senate Democrats, however, have discarded the presumption of innocence and are using the criminal complaint to disempower not only Blagojevich, but any candidate he selects for the position. But unless Burris bought the seat, the taint argument simply cannot apply.

Reid nonetheless insists that the Senate must reject any person that Blagojevich selects. This blanket assertion -- made without any factfinding whatsoever -- undermines Reid's credibility and worsens the due process deprivation by treating with suspicion every potential appointee, regardless of whether a legitimate basis for linking that person to impropriety exists. Because Reid's argument undermines basic constitutional principles that require procedural fairness, his threat to exclude Burris in order to prevent taint is itself tainted.

Business As Usual in Washington, DC
For those of you who feared that change would devastate Washington, be not afraid. If you still dream of a different tomorrow, you should probably temper your hope.

Most of the nation's political leaders promised "change" in 2009. The Burris (and now Franken-Coleman) controversy, however, indicates that Congress will cling (at least in the near future) to the familiar past and will engage in public grandstanding over relatively insignificant matters when they could instead use that energy to tackle the world's most pressing problems. If you remain unpersuaded, here are some facts to consider [Editor's Note: Beware of Sarcasm]:

* While Bush hunted fruitlessly for nonexistent weapons of mass destruction, Congress subpoenaed athletes and held days of hearings in order to rid professional sports of terroristic steroid use.

* In 2005, after the ultimately destructive housing bubble had already begun, Congress convened an emergency session on national security to reverse a decade of exhaustive Florida litigation that allowed Terry Schiavo to end her life with dignity.

* And in the 1990s, while millions of Americans suffered from a lack of health care, members of Congress made sure that no future president would ever consensually stain a blue dress "not his wife's" (thanks for the line, Cokie Roberts) without suffering severe consequences.

Today, foreclosures, unemployment and bankruptcies have reached record levels. The nation's armed forces continue to battle two costly and deadly wars (costly, deadly, and war -- redundant). Poor people lack essential resources such as health care, jobs, food, shelter and education. Violent crimes have surged as jobs vanish. Children remain "left behind." And deprivations of civil and human rights continue but often go unnoticed and unpunished.

Although these critical issues require immediate attention, our nation's "leaders" have decided to spend precious intellectual and political resources in order to defeat a two-year, probably one-"term," legally appointed replacement Senator. Weighing the costs and benefits, Senator Reid, the Senate's flawed priorities and procedural unfairness will probably harm society much more than living with Blagojevich's alleged taint.

PS: After analyzing the constitutional and political issues at stake in this situation (and writing about them on the blog), I began to wonder why this was even happening. This essay is the product of those thoughts.

Related Readings on Dissenting Justice:

Some Media Outlets Begin "Palinizing" Roland Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Anti-Gay Group Thanks Obama, Seeks to Exploit Black Homophobia to Constitutionalize Bigotry

Earlier this year, the California Supreme Court invalidated a state law that prohibited same-sex marriage. Applying state constitutional law, the 4-3 ruling held that the law unjustifiably denied equal protection to gays and lesbians. In November, voters in California will consider a ballot initiative that would amend the state constitution to prohibit same-sex marriage, which would effectively overrule the court's decision.



Recently, a group pushing for the amendment extended gratitude to Senator Barack Obama as it mobilized voters to support the initiative. Although Senator Obama opposes same-sex marriage, he also opposes the ballot initiative and supports the California Supreme Court decision, a "spinderella" move that Obama and Senator Hillary Clinton both made during the Democratic primaries. Senator John McCain opposes same-sex marriage as well, but in 2004 he also opposed a Bush-sponsored U.S. constitutional amendment banning same-sex marriage. McCain argued that the proposed amendment was "un-Republican" because it would interfere with state autonomy. McCain, however, supports the California initiative. Both presidential candidates are spinning and tip-toeing on the issue because they want to maximize their appeal to moderate and independent voters, but they also must hold on to support from core groups within their respective parties.



Although Obama opposes the California ballot initiative, Project Marriage, an organization that favors the measure, believes his candidacy could help its cause. The organization hopes that Obama will bring out enough black socially conservative and evangelical voters who, though Democrats, are pro-life, antigay, and committed to conservative religious values. Black religious conservatives, unlike white evangelicals, tend to vote for Democrats, due to the party's more liberal record on civil rights in modern U.S. history. But conservative organizations have successfully exploited social conservatism among blacks to advance discriminatory agendas, particularly in the area of gay rights. This has created some highly unusual political coalitions. One black minister from Chicago, for instance, boldly proclaimed that he would march with the Ku Klux Klan in order to protest the legalization of same-sex marriage (yes - this really happened).



Conservative groups also mobilized black opposition to gay rights in order to secure the passage of anti-gay legislation in Ohio and Colorado during the late-1990s. In Colorado, one conservative group released a video called "Gay Rights, Special Rights," which visually contrasted scantly clothed participants in gay and lesbian festivals and the thousands of people who attended the March on Washington. The group sought to portray gays and lesbians as a bunch of privileged, promiscuous, party-goers, who do not need "special" civil rights protection. But if we used this same logic and looked at imagery from Freaknic (an annual party sponsored by black fraternities, known for having heaps of alcohol and "hook-ups") and the March on Washington, then one could legitimately conclude that today's blacks do not deserve civil rights.



Opinion polls show that all racial groups oppose same-sex marriage. So singling out blacks for condemnation on this issue, as some liberal commentators have done, applies a double-standard. But black alignment with conservative political organizations produces specific harms for black people, which makes black homophobia a self-defeating and ultimately dangerous political strategy.



First, when blacks help to legalize anti-gay discrimination they directly harm gays and lesbians who are also black, including many vocal supporters of racial justice. Also, black alignment with conservative political organizations in opposition to gay rights, emboldens social movement organizations that also resist laws and policies that would empower communities of color and strengthen the enforcement of race-based civil rights. Furthermore, the effort to constitutionalize discrimination against disparaged social groups and to restrain their liberty should trouble all blacks, given the roles that legally sanctioned inequality and repression, including sexual abuse and stigmatization, have played in the nation's history of racial oppression. When blacks approve anti-gay discrimination and the denial of liberty to gays and lesbians, they condone the very style of legal power that was employed to harm and which continues to harm blacks and other people of color.



My argument does not seek to equate homophobia and racism (a misguided analogy that gay rights advocates frequently invoke), but rather to demonstrate that they both constitute gross departures from the norms of equal protection and due process that are central to any progressive and anti-racist understanding of the constitution. Because anti-gay laws and policies undermine and erode these norms, black homophobia is inevitably anti-black.



I would also add that when Democratic politicians (regardless of race) oppose same-sex marriage, they too legitimize discrimination. Accordingly, liberal activists should hold them accountable for their positions, rather than giving them a free pass to abandon their constituents. The left, including the loudly anti-Republican and proudly liberal crowds at Daily Kos, HuffingtonPost, and MoveOn have been noticeably silent regarding Obama's opposition to same-sex marriage and his conservative stances on other issues (such as his support of the death penalty as punishment for rape and his recently articulated belief that the Second Amendment protects an individual -- rather than just a state -- right to bear arms). Obama's election will only bring symbolic progress if, as president, he readily abandons or fails to take on progressive concerns. And he will undoubtedly toss aside progressive issues if the left does not engage in any meaningful analysis and dissent. The right holds its governmental leaders accountable, and it often forces Republicans to embrace conservative values (hence McCain picking the solidly pro-life Palin). Democrats on the other hand have earned an often-deserved reputation for being "weak," precisely because they fail to defend liberal values against intense political opposition.



I am not sure that California blacks will provide enough swing votes to secure passage of the proposed amendment, but if religious Latinos, another group that conservative organizations often exploit, join blacks in supporting the amendment, then the strategy might succeed. Persons of color need to realize that their support of discrimination against other vulnerable groups weakens an already fragile and dwindling societal commitment to civil rights agendas, and it harms blacks who themselves are gay or lesbian. Thus, their actions ultimately have a detrimental effect on the very communities they claim to serve.

Related Readings on Dissenting Justice:



The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table



Embracing Uncle Good-But-Homophobic: Why "Reaching Across the Aisle" to Rick Warren Does Not Feel Safe to Everyone



New Obama Drama: GLBT Groups Upset That Rev. Rick Warren Speaking at Inauguration



Reactions to Reverend Rick Warren from My Blogger Buddies



Don't Ask, Don't Tell, Don't Hold Your Breath



Stonewalling on Don't Ask, Don't Tell? No Action Until 2010



Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights?



Progressives Awaken from Obama-Vegetative State



Would Obama Have Won If He Were Black...and Gay?



Black Californians and Proposition 8: Is White Gay Anger Justifiable?

FORTHCOMING ARTICLE: "RACIAL EXHAUSTION"

Abstract

Racial Exhaustion

Professor Darren Lenard Hutchson

Washington University Law Review (vol. 86, 2008)

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme Court have all taken a skeptical stance towards claims of racial injustice by persons of color and have resisted demands for tougher civil rights laws and race-based remedies. They have viewed these policies as: (1) unnecessary, given the eradication of racism and the prior implementation of formal equality measures; (2) excessive in terms of substance or duration; (3) futile because the law cannot alter racial inequality; (4) misguided because nonracial factors explain racial disparities; and (5) unfair to whites and a special benefit for persons of color. Adhering to these beliefs, a majority of the public has reached a point of racial exhaustion.

This Article argues that the public's racial exhaustion did not recently emerge, and it is a product of a hard-fought and successful battle against racial subjugation. Instead, throughout history, opponents of racial justice measures have invoked this discourse to contest equality measures and to portray the United States as a post-racist society, even when efforts to combat racial hierarchy were in an embryonic state and persons of color lived in extremely vulnerable political, social and economic conditions. To elaborate this claim, this Article examines political resistance to civil rights legislation and remedies immediately following the Civil War and during Reconstruction, after World War II and through the Cold War era, and in contemporary political and legal discourse in order to demonstrate the persistence of racial exhaustion rhetoric. This Article then considers how social movement actors, civil rights lawyers and theorists, and scholars interested in the interaction of law and rhetoric could respond to the persistent portrayal of racial egalitarianism as redundant and unfair by dissecting the premise of these claims, placing them in an historical context, and, if necessary, by strategically modifying their arguments to focus on class and other structural barriers that correlate or intersect with racial inequality. Despite the presumptive constitutionality of class-based remedies, political opposition to social welfare policies and the depiction of these programs as handouts to undeserving individuals - including persons of color - might limit the efficacy of economic approaches to racial inequality. Moreover, the intersection of race and poverty suggests that class-based remedies alone might not adequately address racially identifiable material inequity.

DOWNLOAD HERE: http://ssrn.com/abstract=1113563