When the legal challenges to the Affordable Care Act first started taking form, the assertion that Congress did not have the power to regulate the health insurance industry under either the Commerce Clause or the Necessary and Proper Clause was largely seen as an academic argument that had percolated in law schools thanks to a robust presence of the Federalist Society. After all, how could an industry that accounts for approximately 16 percent of economic activity in this country be said not to affect interstate commerce? Of course it can be regulated. Under the even the most cynical view opponents of the Affordable Care Act peddled these arguments simply as political cover for the Court to invalidate the law since the tension between the Obama administration and the conservative wing of the Roberts Court was nearly palpable.
The Court declined the political cover, a fact I think speaks loudly to the rumors that Chief Justice Roberts was concerned about the partisanship and rancor brewing within and around the Court, and the implications of this for his legacy. But the Chief Justice hardly “joined the liberal wing” of the Court in upholding the law. In fact, his decision gives conservatives a potentially significant tool to further attack the social safety net in its limitation of the Commerce Clause.
People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.
That is not the country the Framers of our Constitution envisioned.
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For centuries the Court has held that these congressional powers are broad and expansive, and that the main risk an expansive view of federalism poses is a political risk, not any real risk to individual rights or liberties. Then, in 1995, in the Court’s decision in United States v. Lopez, Chief Justice Roberts’ predecessor re-discovered those limits.
The Lopez decision invalidated the law banning the possession of guns near schools on the grounds that the activity challenged — gun possession and presumably gun use — was too far attenuated from the stream of commerce for Congress to regulate. Gun rights activists heralded the decision as a triumph of the Second Amendment, but social conservatives saw much more in the ruling. They saw the dawning of a new Golden Age limiting federal power and future legal avenues to challenge laws and policies they deeply opposed — like the Affordable Care Act.
In rejecting Congress’s ability to regulate the health insurance industry under the Commerce Clause while still upholding the mandate under Congressional taxing authority, Chief Justice Roberts builds on the Lopez line of reasoning in a way that did no broad political damage to the Court — after all, the mandate survived and only those on the hard right seem intent on calling for Roberts’ impeachment — while still giving lots of juicy tidbits for federal judges to cite in future rulings hemming in other Congressional action. And since so much of Congressional action on domestic programs relies on its authority under the Commerce Clause and the Necessary and Proper Clause, it’s too soon to say if this distinction is again merely academic.
More importantly, Roberts extends the logic of Lopez which may prove to be more significant than we realize even now as the Court considers future challenges to Medicaid funding, efforts to de-fund Planned Parenthood and affirmative action challenges. As the logic goes, just because social ills have a broad economic impact does not mean Congress is empowered to fix them.
It’s a logic that whole-heartedly rejects the very premise of the New Deal and our social safety system and one that was just re-inforced within the confines of a win on health care reform. Those of us that support the bill should celebrate the victory but we cannot get comfortable now. Chief Justice Roberts made it clear he upheld the law because he had to, both legally and politically. But in many ways the decision is a chilling repudiation of the heart and soul of its reform and a rallying cry for more vigorous challenges to the safety net. And we can expect conservatives to heed the call.
Read more of our coverage of the Democratic National Convention here.
On Thursday night, Hillary Clinton formally accepted the Democratic Party’s nomination for president. Her speech included many of the elements one expects from a nominee, but there were some standout moments—like when she mentioned disability rights, which she did repeatedly.
Clinton integrated disability into her discussion of her record, talking about her work to ensure that disabled children have the right to go to school and bringing up the health-care needs of disabled youth. Her commentary reinforced the fact that she has always cared about disability issues, particularly in the context of children’s rights.
But she did more than that. She referenced shortages of mental health beds. She explicitly called out disability rights as necessary to defend. And at one point, she did not mention disability, which in itself was radical. When she outlined her plans for gun reform and clearly stated that she wanted to keep guns out of the hands of people who shouldn’t have them, she referenced people with criminal histories and terrorists, but not mentally ill people, who have been fighting a surge in stigma thanks to perennial (and wildly incorrect) assertions that mental illness causes violence. That omission was clearly deliberate, given the meticulous level of crafting that goes into writing one of the most important speeches of a presidential candidate’s career.
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The nominee’s speech would have been remarkable on its own, but what made it truly outstanding is that it was far from the first appearance of disability at this year’s Democratic National Convention (DNC). The convention included disabled people every evening as part of a larger inclusive policy that made 2016 a banner year for disability rights activists, who are used to being invisible. These kinds of appearances normalized disability, presenting it as a part of some people’s lives and a source of pride, not shame or misery.
On Monday, for example, disability rights activist Anastasia Somoza rolled out to give a sharp, compelling speech that didn’t cast disability in a tragic or exceptional light. She wasn’t the only wheelchair user to appear on the DNC stage—Paralympic athlete Mallory Weggemann led the pledge of allegiance on a different evening. Dynah Haubert, an attorney for Disability Rights Pennsylvania, took the stage on Tuesday. Nor were wheelchair users the only disabled people represented. Ryan Moore, a longtime friend of Clinton’s, spoke about health care and his experiences as a man with spondyloepiphyseal dysplasia congenital syndrome, a form of dwarfism. Connecticut Gov. Dannel Malloy talked about his learning disabilities. Musician Demi Lovato, who has bipolar disorder, took on mental health.
Former Iowa Democratic Sen. Tom Harkin, a nondisabled man who played an instrumental role in the push to pass the Americans with Disabilities Act (ADA) in 1990, taught the crowd sign language during a lively speech about the fight for disability rights on Tuesday, the 26th anniversary of the landmark legislation.
On Wednesday night, former Rep. Gabby Giffords (D-AZ) strode out onto the DNC stage in Philadelphia, smiling and waving at the crowd, to make a few short remarks. “Speaking is difficult for me,” she concluded, “but come January 2017 I want to say these two words: ‘Madam President.'” Her speech was about gun violence—a subject with which she’s intimately familiar after being shot in the head in 2011.
This level of representation is unprecedented. Some speakers, like Somoza, explicitly talked about disability rights, putting the subject in the spotlight in a way it’s never been at previous conventions. Others, like Giffords, came up on stage to talk about something else entirely—and happened to represent disability while they were at it. Similarly, Rep. Tammy Duckworth (D-IL), a decorated combat veteran and double amputee, talked about military policy.
This is a striking contrast from the treatment of disability at previous Democratic National Conventions: When disabled people have appeared, it’s often been in the form of a lackluster performance that objectifies disability, rather than celebrating it, as in 1996 when former actor Christopher Reeve framed disability as a medical tragedy.
Disability rights activists have spent decades fighting for this kind of representation. In 1992, two years after the passage of the ADA, the platform included just three mentions of disability. This year, the subject comes up in 36 instances, woven throughout the platform for an integrated approach to disability as a part of society, rather than as something that needs to be walled off into a tiny section of the platform, tokenized, and then dismissed.
In the intervening years, disabled people in the United States have fought for the enforcement of the ADA, and taken the right to independent living to court in 1999’s Olmsted v. L.C., which was namechecked in the 2000 platform and then forgotten. Disabled people advocated to have their rights in school codified with the Individuals with Disabilities Education Act (IDEA) in 2004, pushed for inclusion in 2010’s Affordable Care Act, and are fighting to pass the Community Choice Act and Disability Integration Act (DIA). Disability rights in the United States has come a long way since 1990’s infamous Capitol Crawl, in which disability rights activists dragged themselves up the steps of the U.S. Capitol, pleading with Congress to pass the ADA.
And as activists have pushed for progress in the courts and in Congress, disability rights have slowly become more prominent in the Democratic party platform. The ADA has been a consistent theme, appearing in every platform since 1992 alongside brief references to civil rights; historically, however, the focus has been on disability as a medical issue. The 1996 platform introduced Medicare, and health care in general, as issues important to the disability community, a refrain that was reiterated in years to come. In numerous years, Democrats addressed concerns about long-term care, in some cases positioning disabled people as objects of care rather than independent people. Disabled veterans have also played a recurring role in the platform’s discussion of military issues. But beyond these topics—again, often approached from a dehumanizing angle—and the occasional lip service to concerns about discrimination and equal rights, until the 2000s, education was the only really consistent disability issue.
In 2000, however, the Democrats went big, building on eight years under President Bill Clinton, and the influence of his then-first lady. For the first time, disability wasn’t simply lumped under “civil rights.” The platform explicitly called out the need for protection from disability hate crimes, but it also began to introduce the idea that there were other issues of relevance to the disability with a discussion of the digital divide and the obstacles that held disabled people back. Almost 30 years after the passage of the Rehabilitation Act of 1973, which barred disability discrimination by government agencies and contractors, the Democrats were starting to embrace issues like accessibility and independent living, which also played a prominent role in 2000.
And this week, the efforts of a generation of disability rights activists are on display everywhere in Philadelphia, where Daily News columnist Ronnie Polaneczky observed that accessibility is a top priority across the city. The DNC is providing expanded accessible seating, wheelchair charging stations, service dog relief areas, Braille materials, closed captioning, American Sign Language interpreters, medication refrigerators, and more. That’s radical inclusion at work, and the result of incredible efforts by disability rights organizers—including the 400 delegates who disclosed disabilities.
Those same organizers have been hounding the presidential candidates, holding them accountable on disability over and over again. They’ve brought up concerns about independent living, wage disparities, education, access to services, accessibility, hate crimes, reproductive rights, the “marriage penalty” and government benefits, and casual disablism in campaign rhetoric and practices. Advocates leaned on the Clinton campaign until it began captioning its content, for example. RespectAbility sent journalists out on the trail, #CriptheVote organized Twitter, and Rev Up encouraged people to register to vote and get involved. The disability community may be more explicitly politically active this year than ever before, and the DNC has been responding accordingly.
Notably, in a platform that has loudly called for a Hyde Amendment repeal and pushed for other abortion rights, the Democrats have also reinforced the need for access to reproductive health for disabled people, a revolutionary clause that’s gone virtually unnoticed.
This is a platform—and convention—of aggressive inclusion, and it reflects a victory for disabled people in the United States. It does still lack some components the disability community would like to see, like a shoutout to the DIA, which Clinton supports. This is, however, the start of what looks like a robust and real relationship between the Democrats and the disability rights community.
Oral arguments Monday inUnited States v. Texas, the case challenging the Obama administration’s 2014 executive actions on deferred deportation of immigrants, were a good reminder that the Republican game plan for the rest of the Supreme Court term is resulting in both terrible politics and terrible law. Rather than hold hearings on the nomination of Merrick Garland to replace the late Justice Antonin Scalia, which could potentially sway the Court to a more centrist majority, Republicans are trying to run out the clock. By doing so, they hope to save what remains of a term that was supposed to be packed with conservative wins—chief among them killing off the Obama administration’s deferred deportation actions.
But like many recent Republican political strategies, the consequences of this intentional delay are potentially devastating for millions of people.
At issue in United States v. Texas is the Obama administration’s immigration program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and the expansion of an existing program, Deferred Action for Childhood Arrivals (DACA). In a nutshell, to qualify under the current versions of these programs, individuals must have continuously resided in the United States since January 1, 2010; register with the government; and pass a criminal background check. There are more steps and details to qualify, obviously, but the gist of the actions, according to the Obama administration, is to try to keep families together. The administration’s actions do not grant legal residency status to any qualified person; they simply put prosecuting individuals’ cases at a low-level priority, which could theoretically mean enough time for them to obtain lawful status.
Combined, the programs are estimated to benefit approximately four million undocumented immigrants now living in the United States.
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The deferred action programs are effectively exercises of prosecutorial discretion. All law enforcement officers, from your local cop to FBI agents, have a certain amount of legal discretion in determining whether and to what degree a particular law should be enforced. In the context of immigration law, that prosecutorial discretion comes in the form of immigration agents determining whether or not to initiate deportation proceedings. Just how much prosecutorial discretion and under what circumstances it can be employed is at issue in this case.
Law enforcement officers reside, constitutionally speaking, in the executive branch. So does the president of the United States. That means, generally speaking, prosecutorial discretion is a function of executive power.
Yet Texas, joined by 25 other Republican-controlled states, argues the president does not have the power to defer deportation of large numbers of people under DAPA and the expanded version of DACA.
In other words, Texas and the conservative-run states are challenging the administration’s use of executive power when it comes to immigration reform.
Those states filed a lawsuit in federal district court in Texas in February 2015 challenging the administration’s actions, arguing they were beyond the scope of its authority and that states risked the immediate harm of a couple thousand dollars in administrative damages without immediate court action. The district court agreed and issued a highly unusual nationwide injunction blocking the administration’s immigration actions from taking effect anywhere in the country, even in states not joined in the lawsuit or ideologically opposed to the measure. Not surprisingly, the ultra-conservative Fifth Circuit Court of Appeals upheld the injunction. The Department of Justice appealed that decision to the Roberts Court, which in January agreed to hear the case.
It’s not entirely clear that the district court had the initial authority to issue the ruling that it did, which is a legal issue to be sorted out at some point. But here’s the sticky part: Nobody, even the most dedicated court watchers, really knows when that will be! Maybe the Roberts Court will address it. Maybe they won’t. Maybe it’ll take a separate lawsuit in a separate jurisdiction to test the enforceable limits and logic of the order, should we get a non-decision in the form of a tie in United States v. Texas.
And such a tie may very well happen. Before Scalia’s death, the conventional logic among court watchers was that the Roberts Court could split 5 to 4 ruling against the administration unless immigration advocates could convince Justice Anthony Kennedy to build on an earlier decision he authored supporting, in very broad terms, the executive’s authority to deal with immigration matters. That case, Arizona v. United States, involved SB 1070, Arizona’s infamous “papers please” law that purported to empower local law enforcement to detain people on possible immigration violations, despite the fact that immigration enforcement is squarely within the power of the federal government and not the states. In striking many of the provisions as unconstitutional, Justice Kennedy stressed in that decision the importance of prosecutorial discretion.
Specifically, Kennedy wrote, “Discretion in the enforcement of immigration law embraces immediate human concerns,” such as “unauthorized workers trying to support their families.” He continued:
The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.
Deferred deportations are, at their very essence, exercises of executive authority. Given Kennedy’s language in Arizona v. United States, it’s reasonable for immigration advocates to have considered Kennedy a swing vote in support of the administration. I mean, he wrote about “human concerns” like undocumented workers trying to support their families as a justification forexercising discretion in not initiating deportation proceedings against every undocumented person possible.
But the Justice Kennedy concerned with the human toll of deportation seemed to be missing in action during oral arguments Monday, which makes it increasingly likely the Court will deadlock 4 to 4 on whether the deferred deportation actions are constitutional.
Rather than lean on his recent embrace of executive power on immigration matters, Justice Kennedy appeared concerned that the administration had created an entirely new policy that veered away from executive action and into legislative. “And it seems to me that that is a legislative, not an executive act,” Kennedy said to Solicitor General Donald Verrilli during arguments. Verrilli pushed back, but Kennedy didn’t seem to be buying it.
Kennedy went on to describe why he was considering the programs legislative acts rather than exercises of prosecutorial discretion. “The briefs go on for pages to the effect that the president has admitted a certain number of people and then Congress approves it,” Kennedy said. “That seems to me to have it backwards. It’s as if the president is setting the policy and the Congress is executing it. That’s just upside down!”
Should the Court split 4 to 4, the immediate impact would be to leave in place the Fifth Circuit ruling. But such a ruling would effectively answer nothing as to the constitutionality of DAPA and DACA expansion, leaving those policies up for a possible re-hearing the next term or even a challenge in another jurisdiction.
The point is we would get uncertainty in the law, and approximately four million people would continue with uncertainty as to the policies’ effect on their lives.
Which brings us back to the Republicans in Congress and their current strategy of running out the clock on the Garland nomination. The best chance conservatives have to hold onto what started out as a promising Supreme Court term for the kind of hot-button issues their base loves—abortion, birth control, immigration, and union busting—is to hope for as many ties this term as possible, find a way to win the presidency in 2016, and appoint their own replacement for Scalia. It is in every way an extension to the conservative approach to governing since Obama was first elected: Sit on the ball and run out the clock. The big question now is whether, and to what extent, the conservatives on the Roberts Court are willing to play along.