The Battle Over Healthcare: Part I

The battle in the Supreme Court began yesterday in a series of oral arguments about President Obama's Patient Protection and Affordable Care Act. The politics of this issue are clearly defined: conservatives want the Act struck down for a myriad of reasons, it violates the Freedom of Religion Clause, it destroys federalism between the federal government and state governments, and the law represents a massive expansion of the Commerce Clause, whereas liberals believe the Act is valid because it is within the Commerce Clause, and the Act is a tax which is Constitutionally sound. If you want a primer on the structure of the monumental oral arguments being held this week you can find it here. The argument is broken down into four discrete parts; a discussion about the Anti-Injunction Act, the individual mandate, severability, and Medicaid expansion, the least controversial of the four issues. Much ink has been spilled about what each of the four issues means for both ideological sides. The legal crux of the arguments this week is bound in the strictures of the Commerce Clause and its role in federal authority. Although the politics are exciting and will be dealt with in due course, I do not want to write about that now. Far more interesting in the oral arguments this week are the vestiges of a centuries long debate this country has had since the founding: the relationship between Congress and the state governments.

Congress' interactions with state government have been an issue before the Constitution even existed. The primordial attempt by the nation to structure the relationship between these two governments was ensconced in the Articles of Confederation. There, the Articles subordinated the national Congress to the whims of state governments. For example, to levy a tax required the direction and authority of the state governments before Congress could consider the issue. Articles of Confederation of 1781, art. XIII, para. 2. The Articles went on to state that many of Congress' enumerated powers were not effective unless nine of the thirteen states agreed with Congress. Articles of Confederation at art. IX para. 6. The theory was that Congress should have limited power because states, as sovereign entities, were expected to look after their own affairs. Under the Articles, Congress existed to deal mainly with declaring war, mediating disputes between states, and regulate national currency, while respecting the states' right not to have its own limits infringed. Philosophically this structure made sense to the drafters of the Articles. State government was the embodiment of government control, it was removed from the excess of national governments, and ultimately the Articles reflected a friendship between the states wherein each state was responsible for its internal affairs with minimal risk of intrusion from national concerns.

The Articles of Confederation were quickly replaced by the Constitution. After the Articles' inception, tensions between and within the states arose. States were dealing with a lack of hard currency, started issuing paper money, and lacked the ability to raise local armed forces that could deal with internal dissent. Congress ability to garner support from nine states was difficult, particularly in dealing with interstate commerce and internal conflict. In 1787 Congress sent delegates to a convention in Philadelphia, wherein the current Constitution was created. Most significantly from the Philadelphia Convention the order between national government and state government was reversed. Article I section 8 of the Constitution expanded Congress powers and rather than subordinating them to state government approval, state governments were required to obey. See U.S. Const. art. I, § 8; U.S. Const. art. VI. It was readily apparent to opponents of the Constitution that it would greatly expand Congress' powers and also reduce the states' sovereign powers by making federal laws supreme over state demands. See Brutus, Essay V. Critics also realized that terms in the Constitution such as "necessary and proper" were so vague that Congress could define any number of items as necessary and proper to facilitating its other powers, thereby eliminating many state legislative powers. Brutus, Essay V.

Despite numerous objections, the Constitution was established, but that did not end the debate. For centuries the Court has been asked to determine if Congress enumerated powers are expansive enough to trammel state rights. Frequently the Supreme Court has been called to determine the metes and bounds of federal power. A stark example is the Commerce Clause. As simple as it is powerful, the clause states that Congress shall have the power to regulate commerce among the several States. Combined with the ability to make laws that are necessary and proper to carry out the Commerce Clause, over centuries it has been used to expand Congress' role at the expense of states. Today the Commerce Clause is a central justification for Congress' legislative acts, from the Affordable Care Act, the Civil Rights Act of 1964, the New Deal, to the right to deal with interstate navigation. For each of these issues the Court has been asked to determine the federal government's power over state government. See Katzenbach v. McClung; Heart of Atlanta Motel v. U.S.; Wickard v. Filburn; U.S. v. Darby Lumber Co.; and Gibbons v. Ogden.

The point of all the above is that the Supreme Court is once again called to mediate a national debate between those who have favored less federal power and those who have favored more. This week's oral argument is unique only in terms of its form. The background of this week's oral arguments has been something that Americans have long debated and no matter the outcome in this most recent incantation of the debate, we should not expect the Court’s decision to end the matter.

The Religious Freedom and Contraception Debate, a Legal Perspective

March 19, 2012

Over the past couple of weeks, the news has been aflutter with stories about health insurance coverage and contraception; namely, whether providers of health insurance— including religiously affiliated institutions— should be required to ensure women’s access to contraception even if its usage contradicts the institution’s stated beliefs. Much of these conversations have touched on important constitutional principles, such as the First Amendment’s guarantee to allow individuals to freely exercise one’s chosen religious practices. Unfortunately, these conversations also tend to be high on rhetoric, but light on the law. Considering the importance of this national discussion, I wanted to explain the constitutional law involved, which has largely been absent in our national conversation, and discuss how not only the Free Exercise clause implicated, but also the Establishment clause is.

This all started with the Patient Protection and Affordable Care Act. The Act requires that employers and other institutions provide contraceptive coverage as part of their health insurance plans. In an attempt to respect religious convictions, churches and other houses of worship were excluded from providing coverage; however Catholic universities and charities were not. Regulations promulgated by the Department of Health and Human Services noted that providing for contraceptive coverage would improve the social and economic status of women by allowing women to achieve equal status as members of the work force.

Yet the Catholic Church’s stance opposes some forms of contraception and some bishops within the Church argued that without a broader exemption from coverage, the Church, through its universities and its other institutions, would be forced to provide coverage against the Church’s religious convictions. After a political fight over the virtues of both side’s arguments, Senator Roy Blunt (R-MO) proposed an amendment, Senate Amendment 1520, to allow health plans to exclude contraception coverage, so long as the reason for the exclusion was based on the religious beliefs or moral convictions of the employer providing the plan. Senator Blunt’s Amendment attempts to accommodate the religious beliefs of adherents, but fails to take into account the possibility of unconstitutionally establishing religion. As the Supreme Court has noted, navigating the waters between the Free Exercise and Establishment clauses can be like navigating between the dual rocks of Charybdis and Scylla; the closer one gets to satisfying one of the clauses, can lead to violating the other clause.

When the government attempts to provide religious exceptions to a statute, the government must take care to ensure that the exception does not amount to an impermissible establishment of religion. It has long been held by the Supreme Court that the government can provide for exceptions from statutorily imposed burdens on religious practice. Walz v. Tax Comm’n; Corp. of Presiding Bishop v. Amos. For example, Title VII generally disallows employers to discriminate based on religion. Later amendments to Title VII lifted this burden for churches and houses of worship to allow discrimination based on religion. This naturally makes sense; allowing a Catholic church to deny employment to a Protestant minister is necessary to maintain the Catholic Church’s ability to communicate its own religious views. This principle, wherein government exceptions are made to accommodate religious practice, is generally constitutional so long as the exception does not unconstitutionally foster religion. Corp. of Presiding Bishop v. Amos; Walz v. Tax Comm’n; Hobbie v. Unemployment Appeals Comm’n of Fla.

Thankfully, the Court has explained that a religious exception unconstitutionally fosters religion in violation of the establishment clause when the exception overly favors one religious practice or its adherents, or favors adherents of religion as such. Tex. Monthly, Inc. v. Bullock; Estate of Thornton v. Caldor. In making such broad pronouncements, the Constitution requires some nuance. For example, government is perfectly within its right to provide for measures that primarily advance secular goals that incidentally benefits religion. Additionally, the fact that religion is favored is not enough to be considered a violation of the establishment clause.

Applying this law to the contraception debate, it seems to me that further accommodating the Catholic Church’s position on the Affordable Care Act mandates would violate the Establishment clause. During the debate, Catholic Bishops argued in favor of allowing those with religious or moral objections to exclude contraceptive coverage from their health plans- which would impact employees of the Church’s religious institutions across the country. This would require employees of the Catholic Church or one of its institutions, to incur the costs of the Catholic Church’s religious views by having to pay for certain types of medical care out of pocket. This alone could be considered a violation of the Establishment clause because it would force nonadherent employees to suffer the religious views of the employer with no recourse. Additionally, the Church’s position would also require the employee to subsidize the Church’s religious belief. Effectively the Church would not have to cover contraceptive coverage because the church can shift the costs of coverage to the employee. This cost shifting results in economic gains to the Church to the detriment of the employees. That economic benefit supports the church, resulting in government subsidized religious practice and a violation of the Establishment clause.

Even if the Church’s general arguments do not violate the Establishment clause, Senator Blunt’s amendment would have clearly violated the Constitution. As Caldor made clear, the government cannot, through legislation, require that religious concerns automatically control over secular interests in the workplace. The Blunt amendment goes further than even the Catholic Bishops in that any moral or religious objection would allow the employer to lawfully exclude coverage under the Affordable Care Act. This is an extremely broad exception. Not only could an employer object to contraception coverage, but any type of medical support. Furthermore, the grounds for an exception are expanded beyond religious views to moral grounds. This seems precisely like the kind of scheme rejected in Caldor. There, the Court found that a scheme requiring employers to allow an employee to leave work on the employee’s declared Sabbath day, no matter the belief or day, forced the employer and nonadherent employees to carry the burdens of the religious employee’s belief. Senator Blunt’s amendment sets up the same kind of scheme except for employers by requiring employees to take on any employers religious or moral beliefs. Senator Blunt’s amendment would have been a clear violation of the Establishment clause.

Given the above discussion, I hope I have highlighted the complex nature of the Free Exercise clause, through the contraception debate, and how it relates to the Establishment clause. These principles are important, and we cannot favor the Free Exercise clause while abandoning our support of the Establishment clause. Although there is play in the joints between the two clauses, the government cannot accommodate religious belief by placing undue burdens on nonbeneficiaries. Cutter v. Wilkinson.

Yesterday Pennsylvania got one step closer to passing a restrictive voter ID law, and Monday, the Department of Justice used its powers under the Voting Rights Act to halt a Texas voter ID law.  There has been a recent wave of litigation by the Justice Department and other groups against similar voting laws in South Carolina and Wisconsin.   Since Republicans overwhelmingly took over state legislatures across the country in 2010, voter laws similar to Texas’ have been passed with eight new ID laws passed last year alone.   Justified by the myth that voter fraud is a significant problem in the country, voter ID laws have erected barriers to prevent voters from exercising their right to vote.  Considering the above, I think it is appropriate to discuss my views on voter ID laws.   

Using the Texas voter ID law as an example, seven forms of photo ID were deemed acceptable in Texas.  These forms of ID included handgun carrying permits, several forms of state or federal government ID.  If the voter fails to provide proper ID, then the voter is able to cast a provisional ballot.   The Justice Department argued that this kind of voter ID law places strict barriers on the right of minorities, in this case Hispanics, to legitimately cast a ballot during an election.  I agree.  Although it seems simple enough for someone like me, with means and opportunity, to get an ID card, many who are economically depressed, work multiple jobs, or work in an urban setting where having standard identification (like a driver’s license) is generally unnecessary, cannot easily obtain voter ID.   As a result, the effect of these voter ID laws work to prevent minorities, and in many cases Democratic, voters from casting a ballot by forcing college students, the poor, urban residents, and minorities to get ID before voting. 

I flatly reject the idea that fear of voter fraud justifies using the law as a means to bar otherwise valid voters from exercising the right to cast a ballot.  I argued in a previous article that voter fraud is at best a specious argument.  There is something instinctual to stating that voter systems should be immune to fraud.  However, before burdening an individual’s right to vote, a constitutional right implied by substantive due process in the Fourteenth Amendment, the government should supply ample evidence prior to doing so.  The state legislatures have resoundingly relied on fears that without voter ID laws, rampant fraud would wrack our election system.  But, as Rick Hasen points out, and as I noted in the article above, most cases of voter fraud are little more than anecdotes with scant evidence to justify burdening a fundamental right. 

My solution to voter fraud is simple: if a voter’s credentials are challenged then that voter should be given the opportunity to file an available affidavit at the polling location, on the day of the election, testifying as to voter’s true identity.  After filing the affidavit, the voter should be allowed to cast a regular ballot that is counted with all of the other ballots at the polling location, despite the challenge.  If it is later found that the voter lied on the affidavit then the voter should be penalized for perjury and voter fraud.   This solution, although not perfect, assumes that the average voter is not a fraudulent voter.  Furthermore, rather than inconveniencing a voter or requiring the voter to fill out a provisional ballot, which has its own problems, the voter is allowed to cast a traditional ballot that will be counted with all other ballots.  Voting is a fundamental right, and before legislatures lightly dispense with that right through voter ID laws, they should instead look to simpler methods to resolve voter fraud concerns that protect the integrity of the system and protect the average voter’s ability to vote.

Super PACs

Written by Remington Johnson
CMC Law Group

As a new attorney with Camacho Mendoza Coulter Law Group, allow me to introduce myself.   I am Remington Jiro Johnson, a graduate from George Washington University Law School.   From a very early age I have been involved in politics.   I volunteered for several city council and state legislative races in Salt Lake City, Utah, and interned at the Utah State Legislature.  I moved to Washington D.C. for law school and to try my hand at getting involved in national politics.   The all-important Citizens United decision was handed down by the Supreme Court right around the time I was interviewing for a position as a legal clerk with the Federal Election Commission.  After working at the FEC, I decided to expand my horizons by focusing on all manner of political law on local, state, and national levels.   All of this is to say that I love politics and I love the law that undergirds politics.  I approach current political issues from a political perspective and also from a legal perspective.  I intend to write this blog focusing on various political issues, and discussing my thoughts about the legal questions that are packaged with the political issues in the article.  This first article is simply a primer on super PACs; a little light on the law and designed to give an aerial view of the distinctions between super PACs and traditional PACs, and drawbacks to using a super PAC.

Super PACs.   The term is ominous just in its own right.  This year’s primary election cycle has been dominated by discussion of various super PACs that have infused large amounts of money into the process.  In some instances, super PACs have buoyed a candidate beyond national vote projections, adding needed life to a candidate’s campaign.   Today, I want to discuss what exactly makes a PAC super and what the potential ramifications of candidate reliance on super PACs are.

A political action committee, shortened to the term PAC, is a committee that has been made by other members of Congress (leadership PAC), state and local party organizations, by unions and corporations (separate segregated funds) and from individuals who do not fit in the first two categories (nonconnected PAC).  PACs are generally designed to deliver a political message on behalf of the PAC.  A PAC that intends to give money to federal candidates, or to provide assistance to federal candidates, is regulated by the FEC.  The regulations prevent any individual or entity from donating more than $5,000 per year to a PAC.  Additionally, PACs are limited in how much money they can give directly to a candidate; this year’s cap is $2,500 per election.   PACs are also subject to various reporting requirements by the FEC.  

A super PAC is significantly different from a traditional PAC.   A super PAC, correctly titled an independent expenditure only committee, is a PAC that desires to spend money on a federal election, but not to provide any contributions to a federal candidate.   Due to the logic of the Citizens United decision, various appellate court cases, and ongoing regulation changes, super PACs have no limits on how much the committee can receive from individuals.   This means that one individual can provide all the funding for the super PAC, without having to solicit outside contributions to sustain the PAC.  The significant drawback is that the super PAC is prevented from making direct contributions to a candidate, and from coordinating its spending with a candidate.   These two drawbacks carry with it significant political ramifications. 

The two major setbacks for super PACs create serious advocacy problems.  Because super PACs cannot give their money to a federal candidate, nor can they talk to the candidate about how to spend money, super PACs are left to their own judgment to decide how to use their money.   With the freedom to spend, the super PAC also has the ability to humiliate.  If a super PAC propounds an advertisement that is not something the candidate supports, or makes an advertisement that is not aligned with the candidate’s messaging, the candidate may be stuck with what the super PAC said, but worse, has little recourse for correcting a super PAC’s statements.   For example, when former governor Mitt Romney took former speaker of the house Newt Gingrich to task at the Fox News Republican Presidential Debate on January 16, Romney called into question false advertisements made by a super PAC that supports Gingrich by calling the ad the “biggest hoax since bigfoot”.   As Romney also rightly stated, if Gingrich were to talk with the super PAC’s sponsors about the advertisement, the conversation would likely violate FEC regulations.

Another problem exists where the electorate at large has a problem disentangling the message of a super PAC donor, with the official statements of a candidate’s campaign.  A prime example of this problem occurred when super PAC donor, and supporter of former senator Rick Santorum, Foster Friess went on MSNBC and told the nation that a cheap method of birth control was for women to put a Bayer Aspirin between their knees and squeeze.   Santorum was left with the unenviable position of acknowledging that Friess is one of the few reasons that Santorum is still in the race, while also having to disavow Friess’ comments to the media.  The problem was that Santorum had to spend a large amount of campaign time focusing on damage control from Friess’ comments, and separating Friess from the campaign, rather than focusing on his own campaign issues and talking points.

It is clear that super PACs have made major gains in our electoral system.  However, as this primary season has shown, super PACs are a double edged sword.  On one hand, a super PAC can get unlimited contributions to spend as independent expenditures in a federal election.  While on the other hand, the inability to coordinate and discuss with a candidate how those funds will be spent carries with it significant problems.   Because it looks like super PACs will continue to have a serious effect on our political system for the 2012 election, it is important that candidates and the electorate understand a super PACs role as separate from the actual candidate.