Analysis Law and Policy

A Pyrrhic Victory? In ACA Ruling, Roberts Court Takes Big Swipe At Social Safety Net

Jessica Mason Pieklo

Let's celebrate the win in the Affordable Care Act but be clear about how we characterize that win.

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. LopezChief 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.

Analysis Law and Policy

Millions Wait While Supreme Court Appears Ready to Dawdle on Immigration Reform

Jessica Mason Pieklo

Oral arguments Monday showed a conservative block of Supreme Court justices willing to let immigration reform languish well beyond President Obama's time in office.

Oral arguments Monday in United 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 Statesinvolved 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 for exercising 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.

Analysis Law and Policy

Can ‘One Person, One Vote’ Survive the Roberts Court?

Jessica Mason Pieklo

On Tuesday, conservatives on the Court appeared willing to toss aside a foundation of our representative democracy as another form of "reverse racism."

The U.S. Supreme Court on Tuesday heard arguments in Evenwel v. Abbott, a case that challenges the fundamental component of representational democracy in how legislative districts are drawn.

Evenwel challenges “one person, one vote” in the drawing of state senate districts in Texas, arguing legislators should draw statewide districts based on the number of registered voters instead of the current method based off the total population as measured by the U.S. Census Bureau. If the plaintiffs succeed in their claim, the impact would be devastating for racial and social justice movements.

The conservative wing of the Roberts Court seems eager to accept the plaintiffs’ legal theory that by drawing legislative districts based on the total population rather than the number of registered voters, states violate the Equal Protection Clause of the 14th Amendment. To understand that, and the Evenwel challenge as a whole, it helps to know a little bit about the group behind it and the history of civil rights successes it hopes to undo.

Evenwel is the latest in a series of “representation” cases dreamed up by Edward Blum, director of the Project on Fair Representation, the organization behind Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. Blum is also behind Fisher v. University of Texas at Austin, the case challenging the race-based admissions policy at the University of Texas on the grounds that it discriminates against white students. The Roberts Court hears arguments in that case Wednesday.

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Under the 14th Amendment, states are allocated seats in the House of Representatives by “counting the whole number of persons in each state.” States follow this process when determining their own statewide districts, thus counting the total number of people living in their state and carving up districts based on that tally, irrespective of the total number of registered voters in each district.

The plaintiffs in Evenwel argue that by counting children, documented and undocumented immigrants, prisoners, and other non-voters, Texas denies “eligible voters their fundamental right to an equal vote.”

They call it “the principle of ‘electoral equality.’”

Even the conservative U.S. Court of Appeals for the Fifth Circuit found that argument absurd, and dismissed the claim as “a theory never before accepted by the Supreme Court or any circuit court.”

In fact, the Supreme Court has quite explicitly ruled the exact opposite, during the last round of conservative political attacks on voting rights in the 1960s. This was most notable in Reynolds v. Simswhere the Supreme Court ruled that legislative districts had to be roughly equal in population rather than based on geographic area, as had been the practice, in part motivated by conservatives’ attempts to dilute the political power of urban areas compared to rural. “Legislators represent people, not trees or acres,” Chief Justice Earl Warren famously stated.

The Court issued the Sims decision in 1964. The following year Congress would pass the Voting Rights Act (VRA), explicitly prohibiting voting discrimination on the basis of race. For the first time in our country’s history, representational democracy was open for non-whites.

Conservatives have never stopped challenging the VRA since its passage.

Chief Justice John Roberts built his career in conservative jurisprudence working to undo the landmark civil rights law. It was almost possible to feel the smug in his smile when in 2013 the Court effectively gutted the law by telling Congress it had to go back and redesign the formula used to determine which states with a history of racial disenfranchisement would be subject to federal oversight.

But the principle of “one person, one vote” in terms of legislative apportionment is settled law. Or so the legal community thought.

Blum had tried twice before to bring a challenge to the “one person, one vote” principle and was turned away both times by the Roberts Court. The fact that on Tuesday the Court heard his argument, let alone seriously considered it, is itself victory for conservatives trying to advance “post-racial,” “All Lives Matter” rhetoric to upend civil rights advances, especially when it comes to voting rights. During the arguments, at least four, and maybe five, Supreme Court justices appeared willing to buy into the idea that democratic representation should be available only to registered voters, because to account for everyone who is not a registered voter is somehow discriminatory.

If they win, legislative districts would become older, whiter, more rural, and more conservative. Political power would shift from urban areas to rural areas. Our elected officials would be even older and whiter than they already are. Right now, people of color hold approximately 12 percent of all statewide elected offices. That number has been on the rise, thanks to decades of apportioning districts based on total population rather than registered voters, but a vote for the plaintiffs in Evenwel would change that upward progression of more diverse elected officials.

It would leave children, immigrants, most people who have committed felonies, and mentally ill people who do not have the legal capacity to vote effectively without a say in electoral representation, despite the fact that each of those populations is obviously impacted by the policy decisions their elected officials make.

If there is something that can save the “one person, one vote” principle from being cast aside by the Roberts Court, it is the fact that like conservatives’ ongoing crusade to upend health-care reform, the plaintiffs in Evenwel failed to offer any alternative method to apportioning districts that would work across the 50 states. That lack of a clear path away from more than 50 years of settled constitutional law may be what prevents the conservatives, and Justice Anthony Kennedy in particular, from issuing a sweeping ruling this term. Maybe.