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By Sonja Ralston, a judicial law clerk to the Hon. Guido Calabresi of the United States Court of Appeals for the Second Circuit. Ralston taught bilingual first grade prior to law school, and has published several scholarly papers on education law.

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On Tuesday, the federal Department of Education announced the winners of the final round of its Race to the Top program. Nine states and the District of Columbia join Delaware and Tennessee, which won the first round in April. All told, forty-six states and the District of Columbia competed for a share of the $4 billion in prize money to implement comprehensive education reform plans, making it the largest state-based "competitive, discretionary grant" - in short, prize - in national history.

Though prizes are not an entirely new means of governing (in 1714, Parliament established the Longitude Prize to develop accurate measures of longitude on the open water and awarded £100,000 over fifty years), the Obama administration has newly emphasized competitive grants. But even among the administration's prize programs, Race to the Top is special: unlike the Longitude Prize or the Department of Energy's prizes for energy-efficient light bulbs and better batteries, the goal is to spur policy rather than technological innovation. Therefore, it invites states rather than individuals, companies, universities, or cities to compete.

Race to the Top represents a new approach to federalism: one that strikes a better state/federal balance in substantive policymaking than traditional spending programs while simultaneously doing more to leverage the impact of federal dollars.

In terms of the balance of policymaking, Race to the Top puts more power in the hands of states than other federal education programs. Overall, the federal government provides around 10 percent of K-12 public education spending each year, but that funding is overwhelmingly concentrated in two areas: aid to high-poverty school districts under Title I of the Elementary and Secondary Education Act (ESEA) and aid to school districts for the education of students with disabilities under the Individuals with Disabilities Education Act (IDEA). In each of these block grant programs, Congress, not the states, decides how the money will be spent. For example, IDEA sets very specific standards for what counts as a disability, how students with disabilities must be accommodated in schools, and what procedures schools must follow.

In contrast, Race to the Top gives states greater discretion over how to spend the funds. Fifty percent of any Race to the Top award can be distributed as the state sees fit, within guidelines that are so loose that a state could comply by spending the money on essentially any education program. Additionally, the 500-point rubric for awarding Race to the Top grants has dozens of subcategories, allowing states to pick what reform issues to focus on. As a result, each state's application proposes a different approach to improving education. Race to the Top thus gives real meaning to the cliché, "laboratories of democracy."

Under Race to the Top, states, not the federal government, set policy even when uniformity is important, as it is for learning standards. Under the Race to the Top rubric, a state received up to 40 points for joining "a consortium of States that . . . develop[s] and adopt[s] a common set of K-12 standards." The federal Department of Education did not write the standards; it didn't even establish the group that wrote the standards. The National Governors' Association took the lead, starting last summer, and published the Common Core Standards this June, which forty-eight states (and the District of Columbia) helped develop and thirty-five (and the District) have already adopted.

Prizes also have the potential to leverage federal dollars. Consider the now-familiar Ansari X Prize. It awarded $10 million to the company that first produced a private manned spacecraft, whereas competitors spent over $100 million. The $4 billion the federal government is spending on Race to the Top is only around 25 percent of what it spends every year on Title I. Yet unlike other small programs, which are pilot projects only implemented in a small percentage of schools or districts, the process of merely applying for Race to the Top led to changes in the laws of nearly every state, from lifting caps on the number of charter schools to eliminating data firewalls.

Race to the Top gives the federal government more bang for its buck than most education spending. Unlike, for example, Title I (a block grant program the Department of Education administers according to a congressional formula), Race to the Top is a discretionary - and therefore flexible - funding program. Funds are awarded by the agency, not by Congress, so there's no push for pork, the program need not spend a proportionate amount in every state, and it is not the kind of block-grant pre-requisite that might lead to contentious congressional votes - like when attempts to add national standards to annual ESEA funding were repeatedly defeated.

Finally, Race to the Top is special because its competitors are states - and only states. This focus on states in the first two rounds has policy benefits: making the states the competitors is the most direct way to prod states to change course on alternative school structures like charters or autonomous schools, teacher tenure, and standards. But it also embraces a larger virtue: federalism. By giving the states real choices about how to accomplish federal policy priorities rather than just making them administrative go-betweens that cut checks and write reports, Race to the Top reaffirms states' status as sovereigns with authority over - and responsibility for - their citizens' welfare.

At a moment when the public is increasingly concerned about reasserting state authority (including by calling for the repeal of the Seventeenth Amendment), less radical ways to give states greater autonomy deserve attention. The so-far success of Race to the Top shows that prizes can spur policy innovation, especially in fields in which it is easier to agree on ideal outcomes (like having all children learn) than on how to reach those goals.

 

Dawn Johnsen, President Obama's initial nominee to head the Office of Legal Counsel (OLC) provided a ringing call for young lawyers and other advocates of progressive values to stay to true to their principles and not fear speaking out on behalf of them for fear of losing potential political rewards.

Johnsen, an Indiana University law school professor and former OLC lawyer in the Clinton administration, was nominated more than a year ago to lead the OLC, which provides legal analysis on potential actions by the executive branch. Johnsen's nomination was defeated by a sustained threat of a Republican filibuster, partly because of her criticisms of the OLC's work during the Bush administration. The Johnsen nomination was also undermined by conservatives' obsession with her work to protect reproductive rights Specifically, Johnsen tagged the OLC's advice on torture of military detainees as legally reckless. Her nomination was also underminded by conservatives' obsession about her work to advance the protection of reproductive rights. She withdrew her nomination earlier this year.

But to those attorneys "who might to look at my experience and nonetheless still wonder if they are making a mistake by taking strong public stands on upholding our Constitution, I say this: In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think, because they can always find a footnote to twist and distort in a 20-year-old brief."

"In my case it was footnote 23 in the 1989 Webster case -- and I have to say, whatever you think about the footnote, it was a damn good brief. Just three years out of law school, I had the privilege to write it with civil rights greats Judy Lichtman and Marcia Greenberger, and eight others, on behalf of 77 organizations committed to upholding Roe v. Wade, when the Court seemed poised to overrule Roe ...."

Johnsen continued, "Do you think for one moment I wish I had sat that fight out due to caution and calculation? Not a chance. Never for a moment. Not on your life."

"Of course the real point," Johnsen said, "is one should not live one's life -- deciding whether or how to write such briefs -- based on crass political judgments about possible future payoffs. You should stand on principle and speak out because, that is simply the right thing to do. It is the deep and best tradition of lawyers and others fighting for the rule of law and the rights of those without political power. It is the foundations of ACS. And it is also the patriotic thing to do -- the way for our great nation to achieve its potential." 

Tonight at the start of the 2010 ACS National Convention, Johnsen announced she was rejoining the ACS Board of Directors and that she had no regrets, whatsoever, about her outspoken criticism of the Bush administration OLC's office and its disastrous advice on the treatment of military detainees.

Stay true to your principles and do not be cowed into silence by political ambitions, she urged the packed Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C.

Watch video of Johnsen's speech below:

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By Alison L. LaCroix, Assistant Professor of Law, The University of Chicago Law School.

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Federalism is frequently regarded as one of the signal American contributions to the modern science of politics. Today, however, it is at once everywhere and nowhere in American constitutional and political discussions. Current debates over issues as diverse as the healthcare bill, the economic stimulus package, abortion, and medical marijuana - not to mention the emergence of the Tea Party, with its cry of "states' rights" - confirm this suspicion. Most Americans routinely employ the word "federal" to refer to a federal case, federal law, the actions of a federal prosecutor, or to the federal government itself. But what exactly does the term "federal" mean, and how did it come to have that meaning?

For decades, historians and constitutional scholars have been engaged in a quest to understand the legal and political worldview on which the United States was founded. Liberalism, republicanism, popular sovereignty, commonwealth - each of these notions has contributed valuable insights into the conceptual and practical framework that underpinned the nation's founding and that continues to inform American political philosophy and public life.

Federalism must be added to this list as a foundational idea of American law and politics. The rise of American federalism in the second half of the eighteenth century should be understood as an ideological development - and, indeed, as one of the most important ideological developments of the period. Thus, it was not simply a matter of political expedience or an institutional cover for economic interests. The core of this new federal ideology was a belief that multiple independent levels of government could legitimately exist within a single polity, and that such an arrangement was not a defect to be lamented but a virtue to be celebrated. By the early national period, federalism had become a theory of multiplicity - overlapping layers of government in which the goal was the overlap itself.

Like judicial review - another "meta-constitutional" value - federalism's origins are typically traced to the drafting of the Constitution, despite the lack of any explicit reference to either concept in the document itself. To be sure, a set of ideas about government that would later be called "federalism" began to coalesce at the Constitutional Convention, conjured into action by the exigencies of a fraying confederation and the combined force of fifty-five creative minds. The product of these imperatives was not only a constitutional doctrine but rather an entire philosophy of government.

Indeed, in the late eighteenth century, the new federal ideology rapidly became identified with the fledgling nation itself. More than a mere doctrine, the belief in multiplicity, overlap, and concurrence became a foundational principle of the American political enterprise. "Federal" and "republic" were the nation's twin attributes, terms so resonant that they were obvious choices for the names of the country's first political parties. From its origins in a disconnected set of pre-Revolutionary arguments about the relative powers of Parliament and the colonial legislatures to regulate colonial affairs, the federal conception of divided authority became necessary to the republic itself.

A normative vision of divided sovereignty therefore predated, or at the very least accompanied, the popular sovereignty and republicanism that scholars have placed at the center of the political and legal changes that occurred during the Revolutionary and founding periods. This vision of American government as designed to be divided clearly began as a response to the eighteenth-century Anglo-American fear of imperium in imperio, or dominion within dominion. By the early nineteenth century, this commitment to divided government, and the difficulties of building institutions to instantiate that theoretical commitment, had become the central question of American law and politics.

In their recent book Sixty Million Frenchmen Can't Be Wrong, Jean-Benôit Nadeau and Julie Barlow report an exchange with a Parisian deputy mayor who lamented the city's powerlessness to crack down on dog owners who left their pets' unmentionables on the public sidewalks. Fines issued by security guards had proved ineffective. Why, the authors asked, did the police not intervene? Because, the deputy mayor told them, the Police Nationale - the only official police force - declined to enforce anti-dog-refuse policies. Why, then, did the city of Paris not set up its own police force? "The government won't allow it," the deputy mayor replied. "The Police Nationale is the police in Paris. The city of Paris can't even make its own bylaws for security, traffic, or sanitation." Nadeau and Barlow cite this exchange as evidence of the French state's distrust of local power and fundamental commitment to unitary governmental authority.

As this counterexample demonstrates, federalism today is neither necessary nor natural; nor, in the eighteenth century, was it a mere application of a preexisting and preferred model of government. Federal thought has always contained within it a commitment to the division of governmental powers. It may be tempting to view current political and legal debates through the lens of state-versus-federal power, but these issues are in fact the contemporary incarnation of the bigger, deliberately unsolved question of how governmental authority is to be divided between polities - and which institutional actors will get to make that determination.

The history of American federalism demonstrates that current debates are both intellectually impoverished and sometimes even misinformed - certainly when they appeal to history, and more broadly in the way they frame the relevant choices. Federalism is and has always been a commitment, a background characteristic of the nation, and a work in progress, not a final answer. Cries of "states' rights" miss the point, as do (less frequent) calls for treating the states as mere subdivisions of a national sovereign.

 

The number of states joining or mounting legal challenges to the recently enacted health care reform law continues to grow. In its lead editorial today, The New York Times knocks many of state officials' motives as politically motivated and the lawsuit as legally weak.

The Times' editorial maintains:

Not surprising, many of the officials behind these suits are running for re-election or higher office. The lead plaintiff, Florida's attorney general, Bill McCollum, is seeking the Republican nomination for governor. His campaign Web site urges voters to tell Washington that ‘expensive big-government health care is a violation of our nation's Constitution and we won't stand for it.'

The states' lawsuit, as the editorial notes, maintains that Congress does not have the constitutional authority to require individuals to obtain health care insurance.

The editorial concludes:

We believe the reform law has been carefully framed to stay within constitutional bounds. We are certain it will contribute to the nation's overall welfare by covering tens of millions of uninsured Americans and taking steps to improve the quality and lower the cost of medical care. We hope these suits stumble over procedural hurdles. If they go forward the courts should rule against the states and allow the reforms to proceed.

See here for more analysis of the states' legal challenges to the health care reform law.

 

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By Robert F. Williams, Distinguished Professor of Law, Rutgers University School of Law at Camden & Associate Director, Center for State Constitutional Studies

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In recent years, state constitutions have become the focal point of controversies over same-sex marriage, eminent domain reform, resistance to health care reform, gun control, free speech on private property, equal education funding, school vouchers, recall of elected officials and many other important matters of public policy. State constitutional law is now here to stay as an integral feature of American constitutional law. "The Law of American State Constitutions" is intended to provide lawyers, judges, government officials, scholars and students with a handy and readable reference tool for the study of, and participation in this growing arena.

When talking about state constitutions, it is often difficult to generalize. Many will feel a familiarity with some state constitutions because of similarities with the federal Constitution. But there are many differences, as well. State constitutions perform different functions (generally limit plenary powers rather than grant enumerated powers), have different origins (from the people themselves), and have a different (longer) form. The content and quality of state constitutions is also very different, with state constitutions containing many more policy-oriented provisions, built up over time, as well as provisions concerning the character, virtue and even morality of the state's people. The differences can obscure one of the most fundamental aspects of state constitutions: the significant impact that a number of them adopted before the federal Constitution, had on our national legal charter.

There were two major "waves" of state constitution-making. The first was comprised of hastily constructed documents that were generally not based on elected constitutional conventions, and which included little in the way of checks and balances, as exemplified by the 1776 Pennsylvania constitution. The second wave was more deliberate, often utilizing elected constitutional conventions, and resulting in constitutions with more developed systems of checks and balances, such as the 1780 Massachusetts constitution.

Over time, state constitutions evolved from framework-oriented documents to include a wide variety of policy provisions. State-specific, regional and national influences, such as Jacksonian Democracy, the Civil War and Reconstruction and the Progressive Movement, all had an impact on the amendment and revision of the original states' constitutions. While the constitutions of new states admitted to the Union were subject to similar influences, they came under the additional influence of congressional enabling acts and consent requirements, as well as presidential power. State constitutional provisions have frequently come in conflict not only with the federal Constitution, but also with federal statutory law, administrative regulations, federal common law, and even treaties and interstate compacts.

One of the more recent developments that has helped create a rebirth in state constitutional study and practice is the growth of what is known as the New Judicial Federalism, in which attorneys and others mine state constitutions for interpretations that offer more protective rights than similar provisions of the federal Constitution. Justice William Brennan helped energize this movement when he called states "laboratories of democracy." This raises the potential for dual, or dueling, claims in state and federal court, which implicate a number of methodology issues, including the sequencing of arguments and development of criteria for recognizing rights beyond the federal minimum standards. Too many state courts fail to acknowledge the possible difference between state and federal rights protections, and others present "lockstepping," in which they announce that, in the future, the state and federal rights provisions will be interpreted identically or similarly. Both approaches are problematic.

A critical area in which state constitutional law is distinguished from federal doctrine is the separation or distribution of powers. The federal Constitution does not mandate any particular arrangement of governmental powers in the states. In contrast to provisions involving individual rights, the federal Constitution's separation of powers doctrine has not been incorporated so as to apply to the states. Therefore, federal separation of powers doctrines should be even less persuasive in state courts than federal constitutional rights interpretation. The states' constitutional distribution of powers arrangements, however, differ greatly from state to state. Therefore, it is important to apply a state-specific separation of powers analysis based on a state's specific arrangements.

There are other important specialized techniques of advocacy and judicial interpretation applied to state constitutions. Many of these techniques arise from the unique characteristics of state constitutions, including their origin, function, form and quality, all of which differ from the federal Constitution. These include the question of whether a state constitutional provision is self-executing; possible negative implications arising from grants of authority to the state legislature; interpretation based on the "voice of the people," arising from the fact that state constitutional provisions are ratified by the electorate; the much wider availability of state constitutional history materials, some of it quite recent; and the possibility of a different view of the doctrine of precedent concerning judicial interpretations of state constitutions.

A final, significant area of difference between state and federal constitutions is mechanisms of revision. While there is but one, relatively difficult, way to amend the federal Constitution, amendments or revisions of state constitutions can be accomplished through legislative, constitutional convention or constitutional commission proposals, as well as by initiative in some states. There are substantial political difficulties today with state constitutional amendment and revision, including popular distrust of constitutional conventions and other constitution-making processes. Further, there is extensive judicial involvement in litigation considering the substance and procedure of state constitutional amendment and revision. Some processes of state constitutional change can only be utilized, for example, to amend the state constitution but not to revise it.

Proper understanding and interpretation of state constitutions must take account of the history of state constitutional provisions; the possibility that they were modeled on other states' provisions or are similar to, or different from, other states' provisions; their evolution over time; their similarity to federal provisions; the possibility that they can be changed; and their function as a matter of state constitution law. Lawyers, judges, legislators, constitutional convention delegates, students, and other citizens need to understand these characteristics and the unique character of American state constitutions if they are to work effectively with this other important constitutional tradition in the United States.

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By Alex Kreit, Assistant Professor of Law & Director of the Center for Law and Social Justice, Thomas Jefferson School of Law. Kreit is also Chair of the City of San Diego's Medical Marijuana Task Force & President of the San Diego Lawyer Chapter of ACS.

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Judging by the early election season news coverage a California ballot initiative to tax and control cannabis -- for recreational, not just medicinal, uses -- is poised to be one of the most closely watched races of the cycle. So, just what would this ballot initiative do and how likely is it to pass? This post will provide a primer on the law and politics of California's marijuana legalization initiative.

The aspect of the ballot initiative that I've found catches most folks by surprise is what it won't do: make the sale of marijuana legal in the state of California. That's right, despite being billed in media reports as a vote on marijuana legalization, the proposal would not directly legalize the commercial sale, cultivation, or distribution of marijuana. Instead, it would allow local governments to enact ordinances to tax and regulate the commercial sale of marijuana.

In other words, Amsterdam-style marijuana coffee shops would be legal only in cities or counties that wanted to permit them. And, in the cities and counties that did not take up the ballot measure's invitation, buying and selling marijuana would remain illegal. In the near term, it is likely only a relatively small percentage of localities would decide to opt-in and so marijuana would remain illegal to buy and sell in most of the state even if the initiative were to pass.

While the measure leaves commercial sale to the discretion of local governments it would have an immediate statewide impact by eliminating all civil and criminal penalties for the possession and cultivation of small amounts of marijuana for personal use. This part of the law would apply across the state and local governments could not opt out of it. Given that approximately 61,000 Californians were arrested for misdemeanor marijuana possession in 2008, this provision of the law would be likely to have a significant impact by freeing up those law enforcement resources for other purposes.

In a nutshell, then, the law would legalize the possession and cultivation of small amounts of marijuana across the state and allow local governments to make commercial sale and distribution legal within their area limits.

At this point, you may be thinking to yourself: "Let's assume the initiative does pass. Would it even matter? Won't marijuana still be illegal under federal law?" Yes, marijuana would remain illegal under federal law. But, that fact may be less of an obstacle to the California proposal than most people think. There are two main reasons for this.

The first is that the federal government cannot require a state to criminalize conduct. In an insightful recent article, Robert Mikos of Vanderbilt explains in detail why this is so, using state medical marijuana laws as an example. The article is well worth reading in its entirety. For our purposes, though, the key take-away is that the odds that a court would find the ballot initiative preempted by federal law are exceedingly small.

The second reason has less to do with the law and more to do with resources. While the federal government may have the legal authority to arrest and prosecute small-time marijuana users it does not have manpower. In 2008, only 626 simple marijuana possession cases were disposed of in federal court. DEA agents are not out patrolling the streets or issuing speeding tickets. Those tasks are performed by state and local law enforcement agencies. As a result, if California's ballot measure were to pass, there is not much the federal government could do when it comes to the possession and cultivation of small amounts of marijuana within the state.

Local governments that decide to establish a regulated system for the sale of marijuana may run into more difficulty vis a vis federal law. Not surprisingly, a store openly selling marijuana would be much easier for federal law enforcement to target than a person in growing a small amount of marijuana in their home. Even when it comes to marijuana storefronts, however, California's experience with medical marijuana indicates that practical reach of federal law enforcement may be somewhat limited. In 2008, before the Obama Administration announced it would no longer go after individuals in compliance with state medical marijuana laws, there were at least several hundred medical marijuana dispensaries operating openly throughout California.

That said, the federal response to localities that decide to allow the commercial sale of marijuana, is likely to present the most interesting political and legal issues if the initiative passes.

And that is a big if. While a recent Survey USA poll showed the measure polling at 56%, Chris Bowers at OpenLeft dug deeper into the poll's numbers and made a persuasive case that support among voters who are likely to turn out in midterm elections is actually more like 51%. In other words, it looks like a toss-up.

Whatever side of the issue one falls on, I think almost everyone would agree that between the near-even poll numbers and the symbolic impact that passage would have on our nation's forty-year war on drugs, this will be among the more interesting campaigns to watch this year.

[Image via Wikimedia Commons.]

The new Arizona law criminalizing being undocumented and permitting private citizens to sue for lax enforcement is likely to be struck down in court, according to The New York Times.

The Times reports:

"The law is clearly pre-empted by federal law under Supreme Court precedents," said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona's effort to enforce its own laws is destined to fail.

But even some experts who say they are troubled by the law said it might survive challenges.

"My view of the constitutional question is that it is unconstitutional," said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. "But it's a far cry from predicting empirically what a judge who actually gets this case will do."

...

The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants' rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, "will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant."

President Obama criticized Arizona's bill last week before it was signed, calling for a comprehensive immigration overhaul as an alternative to such "misguided" efforts. He also asked the Department of Justice to "examine the civil rights and other implications of this legislation."

On Tuesday, Attorney General Eric H. Holder Jr. said the department was considering several options, including a federal court challenge.

The major issue in those challenges will be whether federal law should trump state action

[Image via J. Stephen Conn.]

Clerking for two Supreme Court justices taught Ohio Attorney General Richard Cordray about the value of precedent, he said this week, explaining why his state would not join the suit of 13 attorneys general challenging health care reform. In the late-1980s, Cordray served in the chambers of Justices Byron White and Anthony Kennedy, whose constitutional law teachings he referenced in his statement regarding health care reform.

The suit filed by 12 Republican attorneys general and one Democrat has raised hackles, though experts have questioned its chances for success. The suit has caused public clashes between the governors and attorneys general of six states.

"Anybody who proposes something like this is either ignorant -- I mean, deeply ignorant -- or just grandstanding in a preposterous way," said Charles Fried, former solicitor general under President Ronald Reagan. "It is simply a political ploy and a pathetic one at that."

"It's bad enough when TV pundits proclaim that what case law and the Constitution say doesn't matter; the only important thing is what the public wants," writes Dahlia Lithwick at Slate, assessing the arguments presented in the attorneys general's suit. "But when attorneys general start to offer up such arguments in legal pleadings, it transcends legal activism and starts to look like pure ideological yearning.

"And that's a particularly cynical enterprise for someone who preaches fidelity to the law and Constitution as written," Lithwick concluded.

The constitutionality of the Affordable Care Act was examined in an ACS Issue Brief by Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center. In "Mandatory Health Insurance - Is It Constitutional?," Lazarus concludes that the Act's mandatory insurance provisions challenged by the AGs' suit are well within Congress' powers delineated by the Constitution.

"No doubt, in some quarters, opponents' libertarian views are deeply felt," Lazarus writes. "But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting those provisions. 

[Image via kjd.]

Several months ago as the Senate was debating the health care reform legislation, ACS released an influential Issue Brief countering arguments that the legislation was on wobbly constitutional grounds. Now, with passage of the historic reform legislation by the House and the promised signature of President Obama (pictured with Vice President Biden, celebrating House passage of health care reform) opponents are renewing their efforts to challenge the legislation as unconstitutional. Indeed several state attorneys general are threatening lawsuits, and The Atlantic's Andrew Cohen blasts some opponents for dredging up a widely discredited doctrine used by opponents of the Civil Rights Movement in their attempts to scuttle health care reform.

Cohen writes:

The largely discredited doctrine posits that the effect of Supreme Court decisions or other "encroachment" by the federal government may validly be blocked by the "interposition" of a viable state right (say, under the 10th Amendment) between the feds and the subject of the constitutional pronouncement. It's the theoretical equivalent, in other words, of a state official standing in front of a schoolhouse door blocking a lawfully-registered student from entering. It garners a lot of heat, and even a little bit of historical light, but has no tangible support in modern American law.

In light of the renewed attacks, ACS is re-releasing the Issue Brief, "Mandatory Health Insurance: Is It Constitutional?" by Simon Lazarus, public policy counsel to the National Senior Citizens Law Center. The brief, which was cited in Senate floor debate and media, concludes that the mandate for individuals to purchase health care insurance is "lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or its authority to ‘lay and collect taxes to provide for the General Welfare.'"

Lazarus continues:

Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals.

...

No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justice across the Court's ideological spectrum.

Returning to the disquieting employment of "interposition" to attack health care reform, Cohen adds:

When modern-day reactionaries cry "interposition" now, on the other hand, it is largely to protect from federal tinkering an unworkable, expensive status quo on health care. Sure, interpositionists today talk about sinister federal intrusion, and the expense of it all, and of saving themselves from the tyranny of government-issued health care bureaucrats. But the effect of their work would be to protect insurance companies and Big Pharma. It would be to keep millions of Americans without better access to health insurance.

Other constitutional law experts have rebuffed opponents' claims that the individual mandate to purchase health care insurance is unconstitutional. See their articles here, here, and here.

[image via The White House]

Duquesne University law school professor and interim dean Ken Gormley, who participated in a fall ACS panel discussion focusing on Louis Brandeis' influence on privacy rights, will be in Bethesda, Md., this week to discuss his book, The Death of American Virtue: Clinton vs. Starr. 

The New York Times' Janet Maslin writes of the book, "But by and large Mr. Gormley has packed his narrative with intense, overdue and definitive testimony about the still-surprising investigation of Mr. Clinton's activities spearheaded by Kenneth W. Starr." The Times' Sunday Book Review also featured Gormley's book. 

Visit the Barnes & Noble in Bethesda Thursday, March 18 at 7 p.m. to hear Gormley talk about his work. For more information about the book event visit Barnes & Noble's Web site here.

Video of the panel discussion, "Louis Brandeis and the Development of the Right to Privacy," which Gormley participated, is available here. Also watch video or download a podcast of an ACSblog interview with Gormley.