ACSBlog: The Blog of the American Constitution Society

by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center

Tomorrow – Wednesday, November 28 – the Supreme Court will hear oral arguments in a case that pits states wishing to protect public health against businesses looking to knock down regulation wherever they see it. The case is Rowe v. New Hampshire Motor Transport Association, and the legal issue involved – federal “preemption” of state law – garners few headlines, but is one of the most frequent subjects of Supreme Court decisions and touches nearly every area of American life.

Preemption is a necessary judicial tool for ensuring the supremacy of federal law in our divided system of government; it ensures that states do not undermine federal programs, or throw monkey wrenches in complex regulatory schemes that require national uniformity. But of late, businesses have been seeking, and increasingly courts have been granting, preemption of state regulatory and common-law safeguards, regardless of whether Congress anticipated or intended any such results.

On Wednesday and Thursday, the Senate Judiciary Committee held hearings on the nomination of U.S. District Judge Michael Mukasey to serve as U.S. Attorney General. Senators emphasized concerns about expansion of executive power in their questions to Judge Mukasey, touching on issues including surveillance, detention, and torture.

According to Amy Goodman of Democracy Now, "Mukasey defended many of President Bush's most controversial post-9/11 policies. He said the President has the right to indefinitely detain American citizens without charge. He refused to recommend the closing of the military prison at Guantanamo. And Mukasey said he does not believe prisoners at Guantanamo should be allowed the right of habeas corpus."

During his second day of confirmation hearings, Judge Michael Mukasey contended "the White House had constitutional authority to act beyond the limits of laws enacted by Congress, especially when it came to national defense," reported the New York Times.

He suggested that both the administration’s program of eavesdropping without warrants and its use of “enhanced” interrogation techniques for terrorism suspects, including waterboarding, might be acceptable under the Constitution even if they went beyond what the law technically allowed. Mr. Mukasey said the president’s authority as commander in chief might allow him to supersede laws written by Congress.

The Times reported a vote on his nomination may be delayed until Mukasey provides written answers to questions raised by Senate Judiciary Chair Patrick Leahy.

Mukasey quoted Tallyrand to characterize the so-called Bybee memo on abusive interrogation practices as "worse than a sin. It was a mistake."  The nominee also promised that under his tenure, "[l]egal decisions and the progress of cases [would be] decided by facts and law, not by interests and motives."

On Tuesday, the White House released a few of the documents sought by the Committee relating to warrantless surveillance, which Chairman Leahy (D-VT) had at one point demanded as a condition for Mukasey's confirmation.

Over the past several weeks, ACS has released a number of resources to inform debate about the future of the Justice Department, including video and transcripts of recent panel discussions and related issue briefs and video excerpts from those panels on the proper role of the DOJ.

Tonight, Frontline will air a documentary entitled "Cheney's Law," which Frontline introduces as follows:

For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review.

Now, as the White House appears ready to ignore subpoenas in the wiretapping and U.S. attorneys' cases, FRONTLINE's season premiere, Cheney's Law, airing Oct. 16, 2007, at 9 P.M. ET on PBS (check local listings), examines the battle over the power of the presidency and Cheney's way of looking at the Constitution.

"The vice president believes that Congress has very few powers to actually constrain the president and the executive branch," former Justice Department attorney Marty Lederman tells FRONTLINE. "He believes the president should have the final word, indeed the only word on all matters within the executive branch."

 

On October 10, 2007, ACS hosted a panel of distinguished former Department of Justice officials to discusses principles and best practices to guide the Department of Justice under the next Attorney General. Video of that discussion is available in the ACS Multimedia Library.

The panel included:

• Dawn Johnsen - Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law-Bloomington; former Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
• Joseph D. Rich - Director of Fair Housing and Community Development, Lawyers' Committee for Civil Rights Under Law; former Chief of the Voting Section, Civil Rights Division, U.S. Department of Justice
• James K Robinson - Partner, Cadwalader, Wickersham & Taft LLP; former Assistant Attorney General, Criminal Division, U.S. Department of Justice; former U.S. attorney for the Eastern District of Michigan
• Moderator Ronald Klain - Former Chief of Staff to the Attorney General; former Associate Counsel to the President
• Note: Bruce Fein, former Department of Justice official in the Reagan administration, was unable to attend because of a last-minute court appearance.

by Martin Flaherty, Co-Director of the Crowley Program in International Human Rights at Fordham Law School and Leitner Family Professor of Law.

Editor's note: the Supreme Court will hear argument in Medellin v. Texas this morning.

Though known primarily to specialists, Medellin v. Texas may be one of the most important cases that the Supreme Court will consider this Term. Making its second visit to the Court, this complex action in some way touches upon most of the cutting-edge issues in foreign relations law. As such, Medellin should have much to say about the future relationship between the United States on one hand and international law and institutions on the other, in an age characterized by globalization and responses to terrorism. As if this were not enough, Medellin also will go a long way toward determining the fate of 51 Mexican nationals on death row in several U.S. states.

The case centers on the rights of one of this group of Mexicans, Jose Ernesto Medellin, granted under the Vienna Convention on Consular Relations, a treaty that the U.S. signed and ratified in 1962. Article 36 of the Convention provides that “if [a foreign national] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.” It continues that the authorities of the host country shall inform the person of “his rights” “without delay.”

Thirty years later, Medellin was arrested by local police in Texas for the brutal murder of two teenage girls. The authorities read him his Miranda rights. But as with most foreign nationals placed under arrest in the U.S., Medellin was not informed of the apparently similar right to consult with consular officials from the nation of which he was a citizen. Medellin was then tried, convicted, and sentenced to death; he exhausted his appeals. Only after this point did Medellin learn of a possible treaty claim, whereupon he brought state and federal habeas actions seeking a retrial based on Texas’ violation of the Vienna Convention. His petitions at both levels were denied.

               The Courts

Judges live in fear after making controversial decisions, reports Law.com.

Greer, who said he's on the federal bench, was one of four current or former judges who appeared in a 90-minute seminar in San Francisco's Moscone Center West to describe how their lives were affected by their rulings in high-profile cases involving hot-button issues. . . .

Many judges believe the current presidential administration has exacerbated the problem by blaming unpopular rulings on "activist judges."

At the annual ABA convention, Justice Breyer says the last term was "a difficult one," reports the AP.

Jamin Rashkin at Slate examines how, in his opinion,  lower courts are protecting constitutional rights as the Supreme Court strips them away.

But even as the Supreme Court conducts broad U-turns on fundamental questions like free speech and racial equality in public schools, many lower courts—including some dominated by Republican appointees—have been acting with vigor to protect the rights of the people.

Findlaw's Michael Dorf argues "the Supreme Court wreaks havoc in the Lower Federal Courts -- Again." He argues a Court decision, Twombly, concerning "the standard to be used by federal district judges in deciding whether to dismiss a lawsuit before allowing the plaintiff to conduct civil discovery . . . has perplexed the hundreds of federal judges who have already had to confront dismissal motions citing Twombly."

Louis Fisher and David Gray Adler discuss whether "we can still count on the Court to protect the rights of citizens." They argue "such trust in the powers of one branch is and has always been misguided."

               The War on Terrorism

"Federal appeals court will hear arguments next Wednesday on whether to stop a class-action privacy suit based on allegations that the government and AT&T Inc. have been working together in an illegal wiretapping program," reports the Washington Post.  The Center for Constitutional Rights "argues that the new legislation violates the First Amendment and the Fourth Amendment," says SCOTUSblog.

The First Amendment claim is based on CCR's belief that its attorneys have been overheard by illegal wiretaps during private telephone calls or e-mails to clients or witnesses and perhaps other attorneys outside the U.S., intruding on attorney-client confidentiality. The Fourth Amendment claim is based on the argument that this overhearing was done without a warrant and with no suspicion of any criminal activity.

The Washington Post examines "How the Fight for Vast New Spying Powers Was Won."

"Mugabe cites U.S. program to justify wiretapping law," says Think Progress.

The Christian Science Monitor has a lengthy report on whether Jose Padilla -- an American citizen held for three years and seven months at the U.S/ Naval Consolidated Brig in Charleston, S.C on terrorism charges --  was tortured.

Padilla's mental health itself is a form of evidence, mental-health experts say, and it strongly suggests that – at least in Padilla's case – the government's harsh interrogation and confinement tactics went too far. . . . "

Padilla's treatment in the brig raises another issue, [legal] scholars say: whether the Constitution ever permits the government to force a man to confess to involvement in terrorist plots and, in doing so, risk destruction of a portion of his mind. . . .

"He is not the same man who was taken into custody in 2002," says Angela Hegarty, a forensic psychiatrist in New York who spent 22 hours examining Padilla. "Whatever happened to him in there has radically changed him. . . ."

Jose Padilla had no history of mental illness when President Bush ordered him detained in 2002 as a suspected Al Qaeda operative. But he does now.

TalkLeft reports on a Newsweek article on whether Guantanamo Bay detainees may be force-fed.

               Law and Politics

No executive appointments during August break, RollCall reports.

Karl Rove has resigned effective the end of August, reports the New York Times. Firedoglake speculates as to why.

 Attorney General Alberto Gonzales admits "top aids got political briefings," reports the Washington Post.

Justice Department officials attended at least a dozen political briefings at the White House since 2001, including some meetings led by Karl Rove, President Bush's chief political adviser, and others that were focused on election trends prior to the 2006 midterm contest, according to documents released yesterday.

               Other News

Malfunctioning voting machines at the GOP Iowa Straw Poll forces a manual recount, according to Daily Kos.

A hearing on predatory lending and sub-prime loans has caught Melissa Ryan's attention.

Recently, the Bush Administration released a statement arguing that a bill to expand federal hate crimes protections to crimes motivated by gender, sexual orientation or disability based bias "raises constitutional concerns."  A recent letter signed by several law professors contests this conclusion:

Dear Senators:

In its Statement of Administration Policy (“SAP”) on H.R. 1592, The Local Law Enforcement Hate Crimes Prevention Act of 2007, the Administration raises constitutional concerns challenging the authority of Congress to enact one subsection of the proposed legislation. We write to express our view that this provision is clearly within the power that the Constitution grants to Congress. Moreover, we believe that the proposal comports with the Constitution’s structural precepts, including the principles of federalism that allocate power between the national government and the states.

 The SAP questions only the validity of the provision that proposes to add a new § 249(a) to title 18 of the United States Code. Section 249(a) would prohibit violent crimes motivated by the race, color, religion, or national origin of the victim.  In contrast to § 249(a), § 249(b) would prohibit violent crimes motivated by religion, national origin, gender, sexual orientation, gender identity or disability, but only if the crime were committed with some connection to interstate commerce, such as during interstate travel or in a way that affects interstate commerce. Section 249(b) is thus limited to circumstances clearly falling within Congress’s power to regulate interstate commerce.[1] U.S. Const. art. I, sec. 8, cl. 3. While the SAP does not challenge the validity of § 249(b), we are aware of some public commentary that questions the validity of extending federal statutory protection to gay, lesbian, bisexual and transgendered persons. These attacks are not well-founded. Section 249(b) extends protection only in instances that are within the recognized categories of congressional power under the Commerce Clause. Because § 249(a) is not similarly limited to effects on interstate commerce, its text, standing alone, does not expressly invoke one of Congress’s enumerated powers. The Administration’s constitutional concern apparently stems from the unqualified nature of §249(a).

A three-judge panel of the D.C. Circuit rehears Murphy v. IRS today.  Murphy originally held that Congress could not constitutionally tax certain forms of income, but was vacated after it was widely criticized by tax law experts who likened the court's reasoning to that of "tax protestors."  Tax protestors are litigants who refuse to pay federal income taxes, arguing that they are unconstitutional.

The panel in this case is the same as the original three-judge panel, and includes Chief Judge Douglas Ginsburg, who famously coined the term "Constitution in Exile" to describe his theory of narrow federal power, and controversial Bush appointee Janice Rogers Brown, who once advocated a revival of pre-New Deal limits on the federal government.

Writing in the Harvard Law & Policy Review, Elaine Kamarck argues that America's ability to prevent future debacles like the aftermath of Hurricane Katrina is hurt by a continued reliance on local first responders to manage large-scale disasters.  She proposes a restructuring of the nation's emergency management system to allow the federal government a more substantial role:

First, disaster assessment must become an automatic federal priority. The larger the disaster, the greater the probability that first responders and political leaders will also be victims. Waiting for them to make assessments, fill out paperwork, and navigate bureaucratic process can, as we have seen, cost lives. Requiring the federal government to do an assessment does not mean that the states should not, if able, do their own assessments. However, prudent planning should assume that in the worst disasters the locals will not be able to provide assessments. Maintaining the assumption embedded in the Stafford Act that state and local officials, victims of disaster themselves, will be capable of conducting assessments is unrealistic and dangerous in an era when disasters, for the reasons cited above, are likely to turn into catastrophes.

Second, FEMA should be moved out of DHS and given enhanced authority to create a truly federal response capability. This reorganization of federal emergency response could be modeled on a recent successful transformation of the armed forces. The last major reorganization of the United States military dealt with the traditional divisions—and rivalries— between the services and the need to make these historically separate bureaucracies into a coherent force in battle. One of its most important innovations was creation of the regional Commander-in-Chief (CINC) command structure in the Defense Department. This organization gives one person the power and authority to plan for a conflict and command the assets of the different service branches. Immediately before the September 11 attacks, Lieutenant Colonel Terrence Kelly published an article on homeland defense in which he suggested borrowing the concept of the CINC for a Homeland Defense Agency. The CINC option may have similar utility when applied to the need for coherent emergency response.

Brian Tamanaha examines the Wizard of Oz as exposing the flaws of originalism.  As Tamanaha explains, many historians read the turn-of-the-century classic as an allegory for McKinley-era politics, with the Wicked Witch representing imperialist aims in Asia, and the Wizard representing financial "wizards" who controlled the McKinley Administration.  He concludes that this not immediately apparent reading of Oz may suggest a flaw in originalism:

I'm sure others know about this, and maybe I'm exposing my particular ignorance, but I had no idea that The Wizard of Oz was a political allegory. What makes this discovery especially jolting, for me at least, is that its meaning at the time--when many people would have recognized Baum's allusions--was so radically different from its taken-for-granted meaning today.

I hesitate to sully a discovery that is fascinating for its own sake, but I will use this example to quickly make a serious (albeit tangential) point. The original meaning theory of constitutional interpretation has prominent contemporary advocates--including, famously, Justice Scalia--who point to solid political theory arguments in support. But we must be mindful of the elusiveness and haze that envelops original meanings. Unless we turn constitutional interpretation over to trained historians with ample resources and time (and even then there will be problems), our assumptions about original meaning will be precarious.

Commenters on Tamanaha's site suggest even trained historians have difficulty finding the original understanding of a document as venerable and ambiguous as the Wizard of Oz.  One points to a theory that the Wicked Witch of the West represents a "drought ruining western farmers," not Western imperialism, while another cites scholars claiming there is "no real conclusive proof" that Oz stands for more than is immediately apparent within the four corners of its text.

An recent decision by the Fourth Circuit held that a federal anti-spamming law protects spammers by shielding them against state anti-spam laws. The federal CAN-SPAM Act, which provides remedies against some spammers, contains a provision that preempts state anti-spam laws, "except to the extent that [state law] prohibits falsity or deception in any portion of a commercial electronic mail message . . . ." In an opinion by Judge J. Harvie Wilkinson, the Fourth Circuit held that this exception does not save an Oklahoma law which prohibits spam e-mail which "[m]isrepresents any information in identifying the point of origin or the tranmission path of the electronic mail message," or which "[c]ontains false, malicious, or misleading information which purposely or negligently injures a person."

At issue in this case were eleven spam e-mails sent to the plaintiff which incorrectly stated that the plaintiff had signed up to receive the spam e-mails, and which contained a return address in its header information which the plaintiff claimed was not owned by the sender. The court held that these inaccuracies were not sufficient to allow the Oklahoma law to be applied without preemption. The court argued that the word "falsity" in the CAN-SPAM Act is ambiguous, and can be read to either encompass mere inaccuracy, or to only apply to intentional lying.

Because the court found that the inaccuracies in the spam e-mails did not amount to outright lies, it held that the spammer could not be held liable under the preempted Oklahoma law. The court also argued that Congress intended the CAN-SPAM act to provide certain protections for spammers. A national standard imposing strict liability on spammers, argued the court, would "impede 'unique opportunities for the development and growth of frictionless commerce,'" which spam provides.

(hat tip: Bashman)

Digg This!

by Leslie A. Bailey, Brayton-Baron Fellow, Trial Lawyers for Public Justice

The scenario is not uncommon. A prescription drug is approved by the U.S. Food and Drug Administration ("FDA") as safe and effective, but after it has been on the market for some time, new data shows that the drug may increase the risk of a dangerous side effect. In light of this new safety data, the drug manufacturer is faced with a choice: hide the information from the public by continuing to market the drug with its existing label, or change the label. Too often, drug companies make the wrong choice, and fail to strengthen the warning. In cases like these, state tort law provides an essential means for injured individuals and their families to hold drug makers accountable, and thus to encourage responsible behavior by the industry.

This may seem like an uncontroversial proposition, but lawsuits by patients against drug makers for failure to warn of known risks are under attack these days-not only by Big Pharma, but by the FDA itself. Since 2001, the Bush-controlled agency has been filing amicus curiae briefs on behalf of drug manufacturers, arguing that many state law failure-to-warn claims conflict with-and thus are preempted by-the FDA's approval of the drug's label. In January of this year, the FDA took its new, pro-business preemption position one step further, inserting it-without congressional approval, without notice or comment, and in contradiction to previous official statements-into the preamble to a new prescription drug regulation. Since then, a growing number of drug makers have relied on the preamble to argue that injured victims cannot hold them accountable for failing to warn of known risks.

The Ninth Circuit has rejected a challenge to a California law which forbids recipients of public funds from using such funding to "assist, promote, or deter union organizing." In so holding, the court rejected an argument by the Chamber of Commerce and others, who asserted that the California law is preempted by the National Labor Relations Act and that it is unconstitutional under the First Amendment. In reaching this decision, the court noted that the California law had no impact on management's ability to leverage its own funds to impede union organizing. Only use of state grants and other public funds is prohibited.

On June 16, ACS hosted a panel at the 2006 National Convention which considered whether new federal laws are preventing plaintiffs from asserting their rights in court.

Much of the panel's discussion focused on the recently enacted Class Action Fairness Act (CAFA), which permits many class action defendants to remove their cases to federal court. Panelist Victor Schwartz, who supported CAFA, suggested that the law was enacted to end a "plague of litigation tourism," where plaintiffs would seek out favorable jurisdiction, but panelist Elizabeth Cabraser disagreed, suggesting its true purpose was to limit the availability of class remedies.

According to Cabraser, "There's nothing wrong with federal courts," except for the fact that "there aren't enough of them." Cabraser argued that, by funnelling a large number of suits from "a very large, diffuse system" of state courts into a relatively smaller federal system, CAFA creates a "bottleneck," which prevents plaintiffs from receiving a hearing.

Paul Bland of Trial Lawyers for Public Justice argued that CAFA's purpose was more sinister. "The Chamber of Commerce and their clients thought they could win more cases in federal court than they thought they could win in state court." Bland cites several reasons why federal courts might be more sympathetic to defendants than state courts, including the judge's backgrounds, state courts' reluctance to throw out a state consumer-protection law on preemption grounds, and federal courts' tendancy to favor arbitration.

Streaming video of the panel is available here. Panelists included:

• Alan Morrison, Senior Lecturer, Stanford Law School; Co-Founder, Public Citizen Litigation Group


• Elizabeth Cabraser, Lieff Cabraser Heimann & Bernstein, LLP


• Paul Bland, Staff Attorney, Trial Lawyers for Public Justice


• Margaret Russell, Professor of Law, Santa Clara University School of Law


• Victor Schwartz, Shook Hardy & Bacon

ACSBlog recently noted a D.C. Circuit decision holding that an income tax on non-physical damage awards exceeds Congress' power under the Sixteenth Amendment. Over at TaxProf Blog, Professor Paul Caron has assembled commentary from eleven tax law experts on the decision. Their views are almost universally critical.

A common theme in their criticism is concern that the D.C. Circuit opinion closely resembles the arguments of so-called "tax protestors," persons who refuse to pay income taxes on a "mistaken belief, firmly held, that the federal income tax is unconstitutional, invalid, voluntary, or otherwise does not apply to them under one of a number of bizarre arguments . . . ."

Professor Scott Schumacher of the University of Washington asks "what the tax protestors are going to do with the decision," concluding that he's glad he's "not still with the government." Florida Professor Marty McMahon agrees stating "[y]ou better bet the tax protesters are going to jump on that."

Other commentators question the wisdom of the court's resort to originalism in their opinion. As Professor Allan Samansky of Ohio State argues:

What struck me as most interesting (and bizarre) is the conclusion (assumption?) that the "meaning of the [16th] Amendment as it would have been understood by those who framed, adopted, and ratified it" should prevail today. Thus, whatever was not considered to be "income" in 1916 cannot be subject to an income tax today, absent a Constitutional Amendment. Originalism may have its place in interpreting our Constitution, but its use here seems crazy to me. Our understanding of economics has certainly become more sophisticated, but according to at least three judges our income tax is constrained by the notions prevailing ninety years ago. The implications of this approach are dramatic, to say the least.

Professor Stephen Cohen of Georgetown offers a somewhat dissenting view. He believes that "[t]here may be doubtful authority to declare an income tax provision unconstitutional on policy grounds as did the DC Circuit Court in Murphy. However, there is a strong argument that in principle, for policy reasons, the damages in Murphy should not constitute income."

On June 16, ACS hosted a panel at the 2006 National Convention that examined how on many critical issues of the day, including marriage rights for same-sex couples, stem cell research, medical marijuana, state law tort claims, and economic and environmental regulation, many traditional proponents of state prerogatives have shifted stance to advocate federal preemption.

As moderator Preeta Bansal noted, "for many progressives, state governments have long conjured up notions of backwater politics, resistance of civil rights, and other regressive policies." Faced with a conservative federal government, however, "many in the progressive commmunity have started turning to the states for progressive action . . . ."

The panel sought to find the proper balance between protecting federal supremacy and allowing state-level experimentation. Panelists included:

• Preeta Bansal, Skadden, Arps, Slate, Meagher & Flom LLP; former Solicitor General of New York
• Judge Marsha Berzon, U.S. Court of Appeals for the Ninth Circuit
• Steven Fineman, Lieff Cabraser Heimann & Bernstein, LLP
• Michael Greve, The American Enterprise Institute
• Christopher Schroeder, Professor of Law and Public Policy, Duke Law School; former Acting Assistant Attorney General, Office of Legal Counsel

Yesterday, the D.C. Circuit in Murphy v. IRS held a federal tax to exceed Congress' authority under the Constitution. The tax, which applies to damage awards for non-physical injuries, was struck down on the theory that such awards are not "income" within the Sixteenth Amendment's declaration that "Congress shall have power to lay and collect taxes on incomes, from whatever source derived . . . ."

Professor Orin Kerr suggests that this result may be attributable to "a very favorable panel for this sort of claim." The panel included Chief Judge Douglas Ginsberg, who famously coined the term "Constitution in Exile" to describe his theory of narrow federal power, and controversial Bush appointee Janice Rogers Brown, who once advocated a revival of pre-New Deal limits on the federal government.

Kerr, a recent clerk for Supreme Court Justice Anthony Kennedy, predicts that if the government chooses to appeal this case, the Court will agree to hear it, and one commenter on his site suggests that this case "has unanimous reversal written all over it."

Professor Marty Lederman echoes this belief that the D.C. Circuit's reasoning will not withstand scrutiny. According to Lederman, the Sixteenth Amendment was ratified to put an end to a "confusing" distinction between "direct" taxes, which Congress could only enact subject to restrictions, and "indirect" taxes. Given this history, Lederman argues that the D.C. Circuit's opinion is, at the very least, incomplete:

[I]n order to invalidate the tax in the Murphy case, it is not enough to hold that the award is not "income." It would be necessary further to hold that the tax is a "direct" one, prohibited by Article I -- and to explain why it is not otherwise authorized by the Necessary and Proper Clause. The court of appeals did not peform these analyses, and thus its opinion is woefully incomplete.

Lederman concludes his commentary by wondering if the incompleteness he describes will lead to this opinion receiving the "same blogospheric slam-down that greeted Judge Taylor's craftwork in her recent opinion on the NSA surveillance question."

By Jane Perkins, Legal Director, National Health Law Program*

Stating that "sympathy cannot be indulged to create bad law," Judge William Hodges, of the Middle District of Florida, has ruled that certain Medicaid Act provisions cannot be enforced under section 1983. The case concerned a child and Medicaid EPSDT recipient who has various conditions, including developmental delay, scoliosis, paraplegia, hydrocephalus, and spina bifida. The child requested coverage of a power wheelchair with a lift system. The plaintiffs relied on 42 USC 1396 (stating purpose of the Medicaid Act), 1396d(r) (requiring coverage of Medicaid coverable services needed to correct or ameliorate problems); and 1396a(a)(10)(B)(i) and 42 CFR 440.220 (regarding amount, duration and scope of medical assistance).

The defendant challenged the plaintiff's claims as failing to meet the 2d and 3d prongs of the section 1983 enforcement test (called the Harris v. James test by the court and in the pleadings; Harris is an 11th circuit case predating Gonzaga). These prongs focus on whether the provision sought to be enforced creates a binding obligation on the state and whether the interest is too vague and amorphous for a court to enforce.

In response, the plaintiff cited a Florida Medicaid statute and Esteban v. Cook, a Florida federal district court case that enjoined monetary caps on wheelchair coverage. The Court quickly rejected reliance on the Florida law and the district court case, stating that it is federal congressional intent that is relevant. Regarding the specific Medicaid subdivisions, the Court said they imposed no binding obligation on the defendant to provide the plaintiff with a power wheelchair. The Court said amendment of the complaint would be futile.

Numerous cases allowing enforcement of the challenged provisions, including the Fifth Circuit's SD v. Hood decision, were not cited.

The case is published only in Westlaw, A.G. v. Arnold, 2006 WL 334218 (M.D. Fla. Feb. 13, 2006).

*This post is intended only as a summary of the case in question. The National Health Law Program did not represent the plaintiffs in the case.

Professor Steve Vladeck reports that Alabama Supreme Court Justice Tom Parker has essentially urged his colleagues to nullify the 8th Amendment's prohibition against "cruel and unusual punishment" as interpreted in Roper:

Over at How Appealing, the ever-reliable Howard Bashman links to a terribly disturbing op-ed by Alabama Supreme Court Justice Tom Parker apparently published over the weekend, and arguing, I kid you not, that his brethren on the Alabama Supreme Court grievously erred by following (not refusing to follow) the U.S. Supreme Court's 2005 decision in Roper v. Simmons, holding that the execution of anyone under the age of 18 is unconstitutional.

I'm really not making this up. Leaving aside how inappropriate I think it is for a sitting judge to write an op-ed excoriating his colleagues, even on a case where he was recused, the substance of the op-ed hearkens back to John Calhoun and the nullification debates. Here's Justice Parker, in his own words:

[M]y fellow Alabama justices freed Adams from death row not because of any error of our courts but because they chose to passively accommodate -- rather than actively resist -- the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.

Justice Parker doesn't try to distinguish Simmons; he just argues it was wrong -- the product of the "liberals" on the Supreme Court.

by Lauren K. Saunders, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

Chief Justice John Roberts participated in his first high profile case this week when the Supreme Court heard oral arguments in Gonzales v. Oregon, 125 S.Ct. 1299 (2005). The case addresses the question whether former Attorney General John Ashcroft properly interpreted the Controlled Substances Act to forbid prescriptions in legal doses under Oregon's Death with Dignity Act. The case raises three distinct issues: whether Ashcroft had the statutory authority under the CSA to define legitimate medical practices or whether the CSA leaves that issue to states; whether a vague federal law should be interpreted to invalidate the decision of state voters without a clear statement from Congress that it intended that result; and whether Congress has the authority under the Commerce Clause to forbid physician assisted death even if it acts clearly.

The justices' views on the federalism issues were clouded by Oregon's free fall down the slippery slope when Oregon Senior Assistant Attorney General Robert Atkinson insisted on claiming that Oregon had the authority to define legitimate medical practice in any way it wanted, including legalizing wide use of morphine for recreational uses or steroids for bodybuilding. None of the justices liked that argument. Justices Breyer, Stevens and Souter tried to help Atkinson out, pushing him to come up with alternative theories even if the Court were unwilling to go that far. That would not have been hard, since several of the justices suggested that the very purpose of the CSA was to stop recreational drug use, which was unrelated to end of life decisions including assisted death. Atkinson also could have argued that the Attorney General, acting without guidance from Congress, should not be allowed to overrule the Supreme Court's prior admonition that America's "earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide ... should [continue] in a democratic society." But Atkinson largely resisted, and stuck to his extreme states' rights argument.

Roberts was largely silent during Solicitor General Paul Clement's argument for the federal government, though he did ask for any precedent for an Attorney General involving himself in the definition of appropriate state medical practices. Roberts peppered Atkinson with questions about whether allowing Oregon to set its own rules would undermine the uniformity of federal drug law enforcement and permit a "patchwork" of different state approaches. Justice Scalia made similar points. Roberts' focus on the need for uniform federal law was somewhat surprising the concern raised during his confirmation hearing that he would have a narrow view of federal authority under the Commerce Clause.

The New York Times reports today about the legal challenges faced by the federal government in Hurricane Katrina's wake:

After the hurricane passed New Orleans and the levees broke, flooding the city, it became increasingly evident that disaster-response efforts were badly bogged down.

Justice Department lawyers, who were receiving harrowing reports from the area, considered whether active-duty military units could be brought into relief operations even if state authorities gave their consent - or even if they refused.

The issue of federalizing the response was one of several legal issues considered in a flurry of meetings at the Justice Department, the White House and other agencies, administration officials said.

Attorney General Alberto R. Gonzales urged Justice Department lawyers to interpret the federal law creatively to help local authorities, those officials said. For example, federal prosecutors prepared to expand their enforcement of some criminal statutes like anti-carjacking laws that can be prosecuted by either state or federal authorities.

On the issue of whether the military could be deployed without the invitation of state officials, the Office of Legal Counsel, the unit within the Justice Department that provides legal advice to federal agencies, concluded that the federal government had authority to move in even over the objection of local officials.

In response to the New York Times, Slate's Mickey Kaus asks, "But why should the [administration] even have the federalist excuse? Why should there be any doubt that the President can take command of a relief effort within our own country? "

Connecticut Attorney General Richard Blumenthal called the enforcement of No Child Left Behind's testing mandate "arbitrary and capricious" in papers filed in federal court today. Blumenthal claims that the federal government has required Connecticut to spend additional funds to test students every year, rather than every other year as was past practice, without any evidence that it benefits students. Connecticut officials claim it costs the state $112 million each year to comply with the act, while the federal government's appropriation of $71 million leaves an unfunded mandate of $41 million. Blumenthal sought support from other states in filing the lawsuit but cited "fear of retaliation" in explaining why no other would join.

ACS is pleased to announce the availability of streaming video from another panel at the ACS 2005 National Convention, "Progressivism and State Constitutional Law." The session featured:

• Justice Theodore Boehm, Indiana Supreme Court;


• Judge Jessica R. Cooper, Michigan Court of Appeals;


• Judge James L. Dennis, U.S. Court of Appeals for the Fifth Circuit;


• Judge Kermit Lipez, U.S. Court of Appeals for the First Circuit;


• Justice Miriam Shearing, Former Chief Justice, Supreme Court of Nevada; and


• moderator Robert Schapiro, Professor of Law, Emory School of Law.

ACS will continue releasing video content from the 2005 National Convention over the coming weeks. Visit the ACS Video Archives at your convenience to see the latest additions.

By Lauren K. Saunders, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

Note: This post is a summary of a longer article. The full article, including footnotes, is available on the NSCLA website.

As the Senate prepares to review a Supreme Court nominee, it should not overlook an issue that should be of great concern to both Democratic and Republican Senators: preserving Congress's power. Three of Congress's most significant powers - the power to regulate interstate commerce under the Commerce Clause, to spend money for the "general Welfare," and to enforce the 14th Amendment (which incorporates the Bill of Rights) - remain under serious attack. Congress ignores those threats at its peril.

Although the threats generally come from conservative judges, they threaten both liberal and conservative causes. The Commerce Clause is the basis for the Civil Rights Act of 1964 and federal laws against child pornography. Congress has used the 14th Amendment to justify laws protecting voting rights and religious practices. Laws as diverse as those requiring universities to allow military recruiting, requiring public libraries to use internet filters to protect children, and banning discrimination in federally funded programs are based on the spending power.

From 1937 to 1995, the Supreme Court generally deferred to Congress on the need for federal legislation. Then, in a series of Supreme Court starting in 1995, the Court struck down several federal statutes as beyond Congress's power. These include all or part of the Gun Free School Zones Act, the Religious Freedom Restoration Act, the Violence Against Women Act, the Age Discrimination in Employment Act and the employment discrimination provision of the Americans with Disabilities Act. The Court also largely eliminated Congress's power to make states liable for violating federal law, holding that they cannot be sued or required to pay damages for violating federal overtime or patent laws - or most other laws.

by Robert Schapiro, Professor of Law, Emory Law School

This blog post is the first in a series on topics that will be addressed at the 2005 ACS National Convention. The blog post provides a preview of the panel Prof. Schapiro will be moderating on Progressivism and State Constitutional Law. A complete convention schedule and on-line registration are available.

In the Goodridge decision in 2003, the Supreme Judicial Court of Massachusetts found the right to same-sex marriage protected by the Massachusetts Constitution. Goodridge brought great public attention to the potential power of state constitutional law. This decision, however, provided just one of many examples of the so-called "new judicial federalism," in which courts interpret state constitutions to grant rights beyond those recognized in the Federal Constitution. As Supreme Court Justice William Brennan noted in an influential article in the Harvard Law Review in 1977, at a time when the United States Supreme Court has become less hospitable to claims of individual rights, resort to state constitutions has seemed a promising alternative.

The new judicial federalism has focused on a variety of different provisions in state constitutions. State constitutions often contain clauses similar to those in the federal Bill of Rights. Many state courts have exercised their ability to interpret these clauses more expansively than their federal analogs. Thus, courts have understood state constitutions to grant more protection to criminal defendants and broader rights of free speech than the Federal Constitution. Courts also have relied on unique provisions of state constitutions, such as education clauses and remedy clauses, to enter territory uncharted by the federal courts. For example, state courts have been deeply involved in school finance reform, an area that the federal courts have explicitly avoided. Indeed, state courts have been willing to acknowledge claims of positive constitutional rights, such as rights to education or housing, that the Supreme Court has found categorically unprotected by the Federal Constitution.

In some significant areas, state constitutions are likely to provide the primary arenas for constitutional struggles in the years to come. Following the decision in Goodridge, state courts will confront issues of sexual orientation in a variety of contexts, including marriage, civil unions, adoptions, and property rights. Implementing state constitutional mandates for education will continue to pre-occupy many state courts. Now that the United States Supreme Court has approved the use of public vouchers for religious education, the focus has turned to state constitutional restrictions on directing public money to religious organizations. In addition, the growth of tort "reform" movements in many places has challenged state courts to define the access to civil justice mandated by their state constitutions.

In all of these areas, state constitutions offer progressive prospects. However, it would be a mistake to assume that developments in state constitutional law will represent a simple continuation of the legacy of the Warren Court. Three interrelated considerations temper that assessment.

Over the last few years, state and local governments have created innovative solutions to environmental problems such as mercury pollution, energy generation, wetlands protection, and even global warming. In some cases, state and local governments are acting to fill a void at the federal level. In others, state and local governments are using their unique powers and local knowledge to address environmental concerns. Environmental law and policy clearly showcases the role of state and local governments as laboratories of democracy. A new website, www.redefiningfederalism.org, is dedicated to highlighting the best results from these laboratories.

The impetus behind redefiningfederalism.org came from a book by Community Rights Counsel, also called Redefining Federalism, which was published in November, 2004, by the Environmental Law Institute. The book raises the fundamental question: If federalism is about protecting the states, why not listen to them? State Attorneys General, in amicus briefs filed in major Supreme Court federalism cases over the past 15 years, have laid out a vision of federalism as a neutral principle, a way to allocate power between levels of government to best meet the needs of citizens. According to these briefs, federalism is not a liberal or conservative ideology, or a charged zero-sum battle between federal and state officials. The Washington Post Outlook section published an op-ed on the core themes of Redefining Federalism.

Redefiningfederalism.org also contains links to key Supreme Court federalism cases, which set the parameters of state and federal power, and to the amicus briefs that state attorneys general have filed in many of these cases. Environmental law and federalism issues will intersect more and more as the Supreme Court continues to refine its federalism jurisprudence and state and local governments become more experienced and innovative environmental actors.

In a piece with a title ("More Tokes to Come in Medical Pot Case") perhaps better suited for High Times than the ABA Journal, John Gibeaut looks at what the future may hold for medical marijuana. He writes:

To hear White House drug czar John Walters tell it, the U.S. Supreme Court finished off the debate over medical marijuana once and for all this week when it allowed continued federal enforcement against ill people who use the drug to ease their pain.

"Today's decision marks the end of medical marijuana as a political issue," Walters said in a statement Monday. The press release was issued after the justices held 6-3 that Congress may ban medical pot despite laws in 11 states that allow physicians to prescribe it for their patients. Gonzales v. Raich, No. 03-1454.

But the political dispute remains alive as Congress prepares to vote as early as next week on a measure that effectively would end raids by federal agents on patients' homes, such as one that sent the case to the high court in the first place.

Meanwhile, proponents of medical marijuana say they still have significant legal weapons at their disposal as the case heads back to the lower courts to be litigated on separate issues.

Gibeaut writes that the plaintiffs plan to continue to pursue both legal and political strategies:

Raich and Monson still plan to make arguments based on substantive due process and medical necessity, which the appeals court didn't reach because it decided their case on commerce clause grounds.

Raich says she also plans to travel to Washington to lobby for an amendment to an appropriations bill that would cut off money to enforce the law against medical marijuana users. A vote could come as soon as Tuesday, her lawyers say. Similar measures have failed at least twice before.

"Even though we lost, it doesn't mean that the battle is over," Raich says. "I still have some life left in my body."

The American Enterprise Institute is hosting a panel on proposed legislation to curtail and amend federal court consent decrees at 8:00 am on June 9. Panelists include Simon Lazarus, co-chair of the Constitution in the 21st Century Separation of Powers and Federalism Issue Group, Wade Henderson, Michael S. Greve, Rep. Roy Blunt, and Sen. Lamar Alexander.

by Lauren K. Saunders, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

In a case with implications for congressional power in widely ranging areas, the Supreme Court held by a 6-3 vote that Congress has the power under the Commerce Clause to criminalize the noncommercial use of medical marijuana under the federal Controlled Substances Act ("CSA"). Gonzales v. Raich, No. 03-1454, ---S.Ct.---, 2005 WL 1321358 (June 6, 2005). For now, the majority firmly upheld the Commerce Clause jurisprudence that has, for the most part, prevailed since 1937. But the split among the conservatives indicates that the battle may not be over if the composition of the Court changes.

Justice Stevens wrote the majority opinion, in which Justice Kennedy joined the moderates, with Justice Scalia in concurrence. Justices O'Connor and Thomas and Chief Justice Rehnquist dissented. As the alignment of the justices generally showed, the Court viewed the case as having more to do with Congress's power vis a vis the states than with control of drugs or marijuana. Although the federal government was on conservative side in this case and the "states' rights" position was a liberal one, in most federalism cases the positions are reversed. The Court's endorsement of broad federal power will be important - though perhaps not decisive - in ongoing challenges under the Endangered Species Act, the Americans with Disabilities Act, the Freedom of Access to Clinics Act, and the interplay between the CSA and Oregon's Death with Dignity Act, among others.

Majority Opinion. After the Court struck down the Violence Against Women Act and the Drug Free School Zones Act in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), respectively, some had feared a resurgence of the Court's pre-1937 practice of reading Congress's commerce powers narrowly. In Raich, however, the Court rejected a "myopic focus" on Lopez and Morrison outside of the "larger context of modern-era Commerce Clause jurisprudence."

The Court found that noncommercial medical marijuana is indistinguishable from the wheat in Wickard v. Filburn, 317 U.S. 111 (1942), which upheld Congress's authority to restrict home-grown wheat for personal consumption as part of a national scheme of controls on agricultural production. The Court had previously cast some doubt on Wickard, characterizing it as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," Lopez, 514 U.S. at 560. But in Raich, the Court held that Wickard "firmly establishes Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." The Court noted that, unlike in Lopez and Morrison, the plaintiffs challenged only a particular application of the CSA, not the entire statute. The Court refused "to excise individual applications of a concededly valid statutory scheme."

The majority also firmly endorsed the deference to Congress that has prevailed, by and large, since the Court abandoned strict scrutiny of economic legislation in 1937. "We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding'" (citations omitted). Nor was it relevant that the CSA lacked legislative findings about the specific impact of medical marijuana on the interstate market: "[W]e have never required Congress to make particularized findings in order to legislate."

Scalia's Concurrence. Justice Scalia wrote separately but did not directly attack the majority's reasoning, explaining that his approach is, "if not inconsistent with that of the Court, at least more nuanced." He emphasized the "expansive scope of Congress's authority" to facilitate or restrict interstate commerce, reaching even, when necessary, to "those intrastate activities that do not themselves substantially affect interstate commerce." He relied on the 1937 case of NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which began the modern approach to the Commerce Clause, and also listed with approval cases upholding regulation of racial discrimination in restaurants and hotels, wage and hour laws, surface coal mining, intrastate price-fixing, the activities of a local grain exchange, and intrastate transactions at a stockyard.

Scalia noted, however, that these broad extensions of the power to regulate interstate commerce must comply with the Necessary and Proper Clause and must be "appropriate" and "plainly adapted" to exercise of that power. He hinted that this might not be the case if a statute, unlike the CSA, violates state sovereignty

SCOTUSBlog reports that, in a 6-3 decision, the Court has upheld the power of the government to regulate intrastate medical marijuana use in Gonzales v. Raich. Writing for the majority, Justice Stevens explains that "[t]he case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the Act's findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progency foreclose that claim."

A slip opinion is not yet available on the Supreme Court's website. Based on the Stevens' quote above, however, this decision appears to be a victory for proponents of a broad federal power to regulate, and a defeat for advocates of states rights.

by Lauren K. Saunders, Directing Attorney, Herbert Semmel Federal Rights Project

[Ed's note: this article was originally produced by the National Senior Citizens Law Center. The original version, which includes footnotes and citations, is available at this link]

California Supreme Court Justice and D.C. Circuit nominee Janice Rogers Brown has criticized the Supreme Court decisions of 1937 as the "Revolution of 1937" and "the triumph of our own Socialist Revolution." Most people, however, know little about what happened that year. At best, they are aware that it was the year of the "switch in time that saved nine" (and the New Deal), but are unfamiliar with the legal doctrines that were rejected or the implications for reviving them.

Below is a look at the three significant developments of 1937 and what they say about Brown's likely approach to the issues she might face as a federal judge. First, the Court ended the Lochner era's strict scrutiny of economic and social legislation under the doctrine of substantive due process with its inviolate "liberty of contract." Second, the Court upheld legislation establishing the Social Security and unemployment insurance programs. Third, the Court abandoned its restrictive view of Congress's powers under the Commerce Clause, giving Congress greater latitude to enact legislation in a wide variety of areas. In short, Brown's aggressive anti-government philosophy and her willingness to strike down popular legislation protecting individuals is exactly what the Court rejected in 1937.

Adopting Brown's pre-1937 views could threaten federal and state statutes in innumerable areas: many federal criminal statutes, including those against the production or possession of drugs or child pornography; the Civil Rights Act of 1964 and other anti-discrimination statutes; highway speed limits; the national drinking age of 21; the Occupational Safety and Health Act; environmental laws like those regulating clean water, clean air, safe drinking water, toxic waste sites, endangered species, and air pollution; minimum wage, maximum hour, and child labor laws; federal and state laws protecting peaceful labor activities and collective bargaining; the Employee Retirement Income Security Act; Americans with Disabilities Act; Age Discrimination in Employment Act; Family and Medical Leave Act; Fair Labor Standards Act; Coal Industry Retiree Health Benefit Act and other pension protection statutes; Food Drug and Cosmetic Act; Federal Trade Commission Act; the Sherman Act; Federal Educational Records Privacy Act; local rent and eviction control statutes; state and federal Medicare and Medicaid statutes limiting the rates hospitals, doctors, nursing homes can charge patients; laws promoting affordable prescription drugs; fees funding lead paint remediation or health and safety inspections of rental housing; laws prohibiting violence against abortion clinics; the Religious Land Use and Institutionalized Persons Act, and perhaps even the taxes funding the new Medicare prescription drug benefit and proposed Social Security personal accounts.

by Lauren K. Saunders, Directing Attorney, Herbert Semmel Federal Rights Project

In Cutter v. Wilkinson, No. 03-9877, ---S.Ct.---, 2005 WL 1262549 (May 31,2005), the Supreme Court unanimously rejected a facial Establishment Clause challenge to section 3 of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a)(1)-(2), which applies to individuals in institutions. Justice Thomas joined the opinion of the Court, but wrote separately to express his view that the Establishment Clause does not apply to states and that RLUIPA likely exceeds Congress's power under the Spending and Commerce Clauses, positions with quite radical implications.

RLUIPA prohibits governments from imposing a substantial burden on religion unless the burden furthers a compelling governmental interest by the least restrictive means. It applies largely in prisons, but also in other types of government run or funded institutions like nursing homes or other facilities "for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped." Justice Ginsburg's decision for the unanimous Court noted the enormous control over institutionalized persons, and found that RLUIPA is consistent with the Establishment Clause because it "alleviates exceptional government-created burdens on private religious exercise." She also noted that, notwithstanding the strict scrutiny standard, Congress expected courts to accord due deference to the security and safety needs of jail administrators.

Justice Thomas agreed that RLUIPA was constitutional "under our modern Establishment Clause case law," but reiterated his belief that the Establishment Clause is not incorporated into the Fourteenth Amendment and "'is best understood as a federalism provision' that 'protects state establishments from federal interference.'" That is, states can establish religion and Congress cannot preclude them from doing so.

Thomas also commented that RLIUPA "may well exceed Congress' authority under either the Spending Clause or the Commerce Clause." He cited his concurrence in last year's decision in Sabri v. United States, 541 U.S. 600 (2004), in which insisted that Spending Clause legislation must be reviewed under a higher standard than mere rationality to ensure that there is an obvious, direct condition between spending conditions and the spending itself. Such an approach could doom not only RLIUPA but also other measures that Congress has adopted to prohibit recipients of federal spending from discriminating against the elderly, disabled and other groups, as well as possibly rights under the Nursing Home Reform Act.

Thomas also quoted from his concurrence in United States v. Lopez, 514 U.S. 549, 587 (1995), where he indicated his view that the power to regulate commerce extends only to trade, not manufacturing or other commercial ventures. Again, that position has repercussions far beyond protections for religious practice. His approach would likely doom the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as wells as minimum wage and maximum hour laws and labor and environmental laws.

Indeed, Thomas's restrictive views of Congress's Commerce Clause and Spending Clause authority would leave Congress with virtually no ability to enact legislation to protect individuals. Because of restrictive interpretations of the Fourteenth Amendment, both in the 19th Century and under the Rehnquist Court, it is only because of expansive views of the Commerce Clause and Spending Clause that Congress has any ability to pass legislation protecting individual rights.

by Douglas T. Kendall and Jennifer Bradley

Occasionally, the Supreme Court issues an opinion that is so surprising and definitive that it warrants rethinking an entire area of Supreme Court jurisprudence. The Court's ruling this week in Bates v. Dow Agrosciences LLC is just such a decision. In Bates, the Court provides a roadmap for federalism as a neutral principle, rather than an ideology.

In Bates, the Supreme Court cleared the way for 29 Texas peanut farmers to sue Dow, claiming that a pesticide called "Strongarm" damaged their crops. The farmers assert that Dow knew or should have known that the pesticide would stunt peanut growth in certain soils, such as those in west Texas where the farmers tried to grow their crops. The Court rejected Dow's claim that suits based on state laws should be prohibited when a manufacturer complies with federal labeling requirements.

The New York Times' Linda Greenhouse called Bates "one of the Court's most significant rulings on the pre-emptive effect of federal statutes." The ruling shows that the Court's right and left flanks-which seem to agree on the need for dramatic reforms to the Court's preemption case law-may have convinced the Court's center that changes are necessary. In two cases over the past six years, a slightly shifting coalition of four dissenting justices-anchored by the odd threesome of Justices Stevens, Ginsburg, and Thomas-have called for the Court to jettison its free-ranging inquiry into whether to find "implied" preemption of state law in a federal statute because state law represents an "obstacle" to federal objectives. As Justice Thomas writes in a separate opinion in Bates, joined by Justice Scalia, the ruling "comports with this Court's increasing reluctance to expand federal statutes beyond their terms through doctrines of implied preemption." But the impact of Bates could extend far beyond the narrow confines of preemption law.

Over the past 15 years, the Supreme Court's five most conservative justices have attempted to define what the Court has called "Our Federalism" in rulings that have redrawn the boundaries between state and federal power. These rulings have both terrified and infuriated liberals. Terrified because the rulings seemed to threaten bedrock federal protections ranging from the Americans with Disabilities Act, to the Endangered Species Act, even to portions of the Civil Rights Act of 1964. Infuriated because the Court seemed to capriciously abandon its pro-state federalism principles when confronted with a case in which a state or local policy advanced a progressive cause. "Our Federalism" was looking suspiciously like a purely anti-regulatory agenda.

Bates goes a long way towards dispelling that suspicion. Indeed, the case suggests that the Court is creating a new federalism jurisprudence, one that takes a more generous view of both federal and state power. In Tennessee v. Lane (2004) and Nevada v. Hibbs (2003), the Court upheld important portions of the ADA and the Family and Medical Leave Act, dismissing the claim that Congress lacks the ability to pass these laws under Section 5 of the 14th Amendment. This term, the Court is widely expected to hold, in Ashcroft v. Raich, that the federal government has the authority under the Commerce Clause to regulate small quantities of medical marijuana. This would arguably be the most sweeping exercise of federal power ever blessed by the Court.

Bates, in turn, shows that the Court is willing to shoulder what Justice Brandeis called the Court's "grave responsibility" to protect states as democracy's "laboratory." Every Justice in Bates rejected the claim of Dow and the Bush Administration that federal pesticide law broadly insulated the chemical giant from liability under state law. In doing so, the Court reversed the nearly unanimous conclusion of lower courts, and it opened the way for innumerable suits by farmers and others against pesticide giants like Dow. Few were predicting a victory by the farmers in Bates, and no one foresaw that the federal government's position would be unanimously rejected.

The implications of the shift in preemption law and the broader recasting of federalism should be clear to anyone who has witnessed the states emerge in recent years as the leading engine of progress in health care, the environment, and corporate reform-and who has seen the supposedly pro-federalism Court all too often strike down progressive state statutes. The Court seems in Bates and other recent cases to be moving away from a polarizing, ideologically-driven form of federalism to a more neutral version that can unite the Court and draw support across the political spectrum. If this proves true, Bates will be more than a big victory for Texas peanut farmers, it will be a milestone in American law.

Douglas T. Kendall is Executive Director of Community Rights Counsel, a public interest law firm in Washington D.C. Jennifer Bradley is Federalism Project Director at Community Rights Counsel.

ACS and the Center for American Progress are co-sponsoring a sold-out National Press Club event on the "Constitution-in-Exile." Panelists include

• Jeffrey Rosen, Professor of Law, George Washington University School of Law; Legal Affairs Editor, The New Republic
• Cass Sunstein, Karl N. Llewellyn Dist. Service Prof. of Jurisprudence, University of Chicago Law School
• Michael Greve, Scholar, American Enterprise Institute
• Moderated by: Simon Lazarus, Of Counsel, Sidley Austin Brown & Wood; Public Policy Counsel, National Senior Citizens Law Center

ACSBlog Editor Jeffrey Jamison provides this explaination of the Constitution-in-Exile was originally published on this site last January 25th:

During last week's inauguration, Chief Justice Rehnquist made good on his promise that, despite months of extensive treatment for thyroid cancer, he would administer the oath of office to begin President Bush's second term. While his ability to perform this task admirably might have quelled the doubts of some, most courtwatchers could not help but renew their speculation as to how long the chief justice will be able to uphold the more important duties of his position. As USA Today's Legal Affairs Correspondent Joan Biskupic put it, "[t]he conservative chief justice's appearance at the inauguration is unlikely to tamp down the notion that he might retire soon." At this point, the big question is not whether the chief justice will retire or even when, but rather whom President Bush will select to fill the ensuing vacancy on the Court and if any of the other justices will follow the chief justice's lead during Bush's second term.

An impending vacancy on the court is all the more relevant in light of George Washington Law School Professor and New Republic Legal Affairs Editor Jeffrey Rosen's pre-election warning that, "instead of revisiting Roe v. Wade, a second Bush administration is more likely to focus on judges who will restore the Constitution in Exile." The Constitution in Exile is not an amendment to or article of the Constitution locked away or banished to a tropical island waiting for Nicholas Cage to discover it using clues from the Federalist Papers, but a term first coined in 1995 by Federal Appeals Court Judge and failed Reagan Supreme Court nominee Douglas Ginsburg to describe a conservative reading of the Constitution. Ginsburg, in criticizing the federal courts for granting too much deference to the legislative and executive branches of government, declared:

"So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes."

Ginsburg's Constitution in Exile is, as Yale Law School Professor Jack Balkin termed it, a "Shadow Constitution" created to remedy the Constitution of any defects the theorist believes exists. University of Maryland Professor Mark Graber adds, "Americans estranged from the official constitutional lawmaking process typical rely on counter-constitutional stories of redemption. Proponents of politically disfavored positions continually produce elaborately detailed and justified constitutions-in-exile. These shadow constitutions lay out the constitutional meanings that would become official should the author or his political faction acquire the power necessary to articulate official constitutional meanings."

Writing in the New York Times Adam Cohen highlights the "activist" opinions of Justice Scalia:

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia's reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Conservative politicians insist that courts should defer to the democratically elected branches, but conservative judges do not seem to be listening. The Supreme Court's conservative majority regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act. The court has even established a bizarre series of hoops Congress must jump through to pass a law protecting Americans' 14th Amendment equal-protection rights. Congress must prove in many cases that the law it passed is "congruent" and "proportional" to the harm being addressed. Even John Noonan Jr., an appeals court judge appointed by President Reagan, has said these new rules - which Justice Scalia eagerly embraces - reduce Congress to the level of an "administrative agency."

The St. Petersburg Times analyzes a growing disregard for federalist principles among those in power and the frustration among the conservative intelligensia resulting from it.

It's a bedrock principle of Republican conservatism: Whenever possible, the federal government should let the states manage their own affairs. But as Republicans exercise their growing power in Washington, they increasingly are ignoring that fundamental belief, with a host of legislation aimed at trumping state authority....

Last week, House Republicans pushed an energy bill that would limit the ability of coastal states to challenge offshore oil and natural gas projects. And states couldn't require more energy-efficient ceiling fans. An immigration proposal, called Real ID, would strictly dictate how states could issue drivers' licenses, and to whom. And the recent Terri Schiavo case set a new level of congressional involvement in an issue that historically has been handled by the states.

"There is a level of hypocrisy here that is breathtaking," said Norman Ornstein, an expert in Congress at the American Enterprise Institute, who echoed the sentiments of scholars at other conservative think-tanks in Washington. "You've got conservatives who have just absolutely wrapped themselves in the cloak of the 10th Amendment who miss no opportunity to talk about how government closer to the people is better, and how the federal government should be curbed. Then they go to these incredible lengths because they don't like the decisions that states are making."

The list of federal impositions into realms historically dominated by the states goes on.

The trend is most apparent on two fronts: undercutting the regulatory authority of states, particularly on environmental matters; and advancing a conservative social agenda, such as with the Schiavo case and the proposed constitutional amendment to ban gay marriage.

Matthew Spalding, director of the Center for American Studies at the Heritage Foundation, the nation's largest conservative think-tank, suggests looking at the problem from a different angle: Name a recent case where Republicans in Congress chose not to act because they felt constrained by the Constitution. "It's extremely difficult to point to an example of that," Spalding said.

Already this year, the president has signed a law that moves most class-action suits from state courts to the federal courts, a measure designed to make it harder for such suits to succeed. Republicans say they're also determined to pass a bill that would cap damages from medical malpractice suits, though those cases are decided by state courts.

By Lara H. Schwartz, Senior Counsel, Human Rights Campaign

On April 13, 2005, the Constitution Subcommittee of the Senate Judiciary Committee held a hearing on "threats" to "marriage protection initiatives." In contrast with earlier hearings (there have been nine since September 2003) on banning marriage rights for same-sex couples, the majority actually focused-albeit inaccurately, on law. Subcommittee chair Sam Brownback of Kansas called two law professors to make the case that a constitutional amendment is needed to protect the institution marriage from "activist judges." Two notable features of the testimony presented by BYU professor Lynn Wardle and Notre Dame professor Gerard Bradley were (1) that both professors attempted to address the most persuasive arguments that went into defeating the amendment last year, namely federalism and civil rights; and (2) that doing so required logical acrobatics unbelievable to anyone.

Message One: We Have to Kill Federalism to Save It. In 2004, many lawmakers and opinion leaders who are no friends of the lesbian and gay rights movement opposed the Federal Marriage Amendment ("FMA") on federalism grounds. Both Wardle and Bradley made feeble attempts to argue that it is marriage equality litigation-not the FMA-that truly threaten federalism. Here's the gist: state courts deciding marriage cases, said Wardle, are invoking state constitutional doctrines that have federal counterparts in federal law. This, according to Wardle, federalizes the issue. You read that right: state courts interpreting state constitutions federalizes the issue of marriage equality.

by Lauren K. Saunders, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

The Eleventh Circuit has held that, as applied to public education, the prohibition on discrimination against the disabled in public services and accommodations in Title II of the Americans with Disabilities Act is valid 14th Amendment legislation and properly abrogates states' sovereign immunity. Association for Disabled Americans, Inc. v. Florida, Int'l Univ., No. 02-10360, ---F.3d---, 2005 WL 768129 (Apr. 6, 2005). The brief 4-page opinion was written by Carter appointee Kravitch and joined by Bush I appointee Birch and Reagan appointee Gibson of the 8th Circuit. The opinion may be the first to hold that Title II is valid as specifically applied to a non-fundamental constitutional right.

The plaintiffs charged that the state university failed to provide qualified sign language interpreters, effective note takers, and other aids such as physical access to facilities. They sought only injunctive relief, but named both the university itself as well as university officials.

The court followed the Supreme Court's three-step process for analyzing whether the Constitution authorizes Title II as applied to public education. First, the relevant constitutional right is the right to be free from irrational disability discrimination in education. Even though, unlike the court access rights at stake in Lane, education is not considered a fundamental right, "the Supreme Court did not specify the need for a fundamental right to be at stake in order to satisfy this prong of the inquiry." The "gravity of the harm [from discrimination in education] is vast and far reaching .... Thus, the constitutional right to equality in education, though not fundamental, is vital to the future success of our society."

Second, the court considered whether there was a history of unconstitutional discrimination supporting Congress's judgment that prophylactic legislation was necessary. The court noted that the Supreme Court in Lane had "considered the record supporting Title II as a whole, and conclusively held that Congress had documented a sufficient historical predicate of unconstitutional disability discrimination in the provision of public services ...." The court also noted that Lane cited several cases involving state discrimination in education.

Third, Title II was a congruent and proportional response to that history of unconstitutional discrimination. Like the discrimination at issue in Lane, unequal treatment of individuals with disabilities in education has a long history and has persisted despite several legislative efforts to remedy it. Title II is a limited remedy, prohibiting only discrimination by reason of disability, and requiring only reasonable modifications. It is thus an appropriate response because "[d]iscrimination against disabled students in education affects disabled persons' future ability to exercise and participate in the most basic rights and responsibilities of citizenship, such as voting and participation in public programs and services."

The following was originally posted on the blog of ACS Yale Chapter's upcoming conference The Constitution in 2020"

What values and principles does our Nation stand for? What kind of society do we want for ourselves and our children? Will our Constitution continue to stand as the leading model for its embodiment of a constitutional democracy with a genuine balance of powers and a commitment to liberty, equality, justice and the rule of law? And, as a growing number of constitutional democracies join us in addressing the economic, social and political challenges of this new century, can we revitalize our own centuries-old constitutional traditions by learning from those who are shaping their own, sometimes very new, constitutional orders? The answers to those questions are at the heart of the Constitution in 2020 conference and the larger American Constitution Society project, The Constitution in the 21st Century, of which it is a part.

We live increasingly in a legal landscape imagined largely by conservatives. Conservatives have captured the intellectual initiative in popular and even much elite discourse. Their success in framing and communicating fundamental conservative principles has contributed to real legal and political change over the last two decades. Will we allow narrow and sterile conservative interpretations of our Constitution's vital principles and protections to reshape our national character and control our daily lives?

Our answer, on this weekend and on every day of the coming years, is a resounding "No."

Professor Jack Balkin weighs in on the Schiavo controversy:

Congressional Republican leaders seem to have lost any concern about "activist" federal judges interfering with the State of Florida's legal system. It is not surprising that Congressional Republicans are fair weather federalists when it comes to these issues, and that they want the federal courts to get involved in right to die cases like Schiavo's. Few national politicians are seriously interested in federalism or judicial restraint when this would interfere with something they really care about. The Schiavo controversy demonstrates, I think, that pro-life values are likely to trump federalism values and concerns about an activist judiciary when the chips are down; they will even trump them when politicians think they can gain something from grandstanding, which appears to be what is going on here. Cultural conservatives may talk loudly about decentralization and rail against activist judges, but, like just like most liberals, they believe that activist federal judges who decide things they way they like aren't activist at all. They are judges who uphold important rights.

By Rupak Shah, Editor-at-Large

The concept of federalism technically refers to the distribution of power between the federal and state governments. Historically, though, the doctrine of federalism has become associated with those calling for greater state government autonomy. Throughout the 20th-century federalism arguments were advanced almost exclusively by those on the right. The Federalist Society, a conservative and libertarian legal association, more recently has been a major force in promulgating an interpretation of the Constitution limiting the federal government's power.

On the other hand, progressives have traditionally fought for stronger federal control, particularly in the area of human rights. Now with Republicans firmly in charge in Washington, and given such recent legislation as the Class Action bill, pre-empting state law and moving cases from state to federal courts, many progressives are rethinking this logic. Some are wondering if progressive federalism, where states exercise their powers to innovate, develop and execute their own policy initiatives in specific areas, may be a superior alternative.

by Bert Brandenburg, Executive Director, Justice at Stake^*

Terry Schiavo's tragedy has triggered a national debate, including discussion of the propriety of a new law sending her case into federal court for additional review. What's not so well known is that the For the Relief of the Parents of Theresa Marie Schiavo Act is just the latest in a recent string of Congressional "court-stripping" attacks on our courts.

What is court-stripping? It's an effort to take jurisdiction or discretion away from a court or a particular judge, often to deny a particular group access to the courts. Politicians increasingly use cour