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The Obamacare Fix’s Legality, State Law and Standing

By on November 23, 2013 12:33 pm in Constitutional Law, Federal Jurisdiction, Health Care, Standing, State Constitutional Law

I have a piece in POLITICO discussing the constitutional problems with the ObamaCare fix, which have been previewed here before. One aspect is whether state officials can ignore ObamaCare and instead apply “The Fix.” Regardless of the discretion President Obama has, state officials do not have enforcement discretion over federal law. It is just supreme, and even if the president ignores it, state officials can not.

Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.

The Constitution’s Supremacy Clause makes federal law—not presidential policies— binding on the states. So what’s a state insurance commissioner to do? Federal law requires health plans to have a mandatory level of “minimum coverage.” Thus it is not clear how a state insurance commissioner can authorize a plan that violates federal law.

But state officials may encounter the ACA in different ways. In some states, it will have the general preemptive force of federal law. So states that authorize non-compliant plans pursuant to the Fix would be in conflict with federal law.

A more interesting scenario involves states that have passed “conforming legislation” to “domesticate” the ACA to make it more convenient to enforce. In such states, the ACA is both federal and state law, and at the [...]

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The Jerusalem Passport Case – Separation of Powers and Standing

By on July 23, 2013 12:31 pm in Constitutional Law, Israel, Separation of Powers, Standing

The D.C. Circuit has held the Jerusalem passport law unconstitutional for impermissibly intruding into the Executive’s foreign relations powers. The law requiring the State Department to record “Israel” as the country of birth for those born in Jerusalem. The D.C. Circuit, through extensive and lucid analysis, concluded that recognition was an exclusively executive function, on which the Act impinges. The lawsuit, brought by Menachem Zivotofsky, an American born in Jerusalem, has gone on for a decade, but this will probably be the end.

The D.C. Circuit’s separation of powers analysis was quite strong, though I think the case lacks standing, as Judge Gladys Kessler on the district court first ruled nine years ago.

The plaintiff, claimed the issue was just about passports, and did not involve recognizing foreign countries. The argument was hard to take seriously: refusing to recognize Israeli sovereignty over Western Jerusalem, on passports or elsewhere, is a crucial limitation on the U.S.’s recognition of the State of Israel.

More interesting was the plaintiff’s argument that Congress itself acted through an enumerated power – Immigration and Naturalization. The Court rather convincingly showed that passports were not central to this power, which in any case was concurrent with the Executive’s foreign policy powers. Thus in rock-paper-scissors terms, an exclusive executive power (recognition) beats a concurrent legislative one.

One might think that the Immigration power naturally overlaps with recognition: immigration requires a prior determination of foreignness. The Executive has never taken a position one way or another the sovereignty over Jerusalem. Heck, it might be part of New York, in which case no immigration or naturalization would be needed. Indeed, because of the particular circumstances here – Congress is not contesting a determination of Jerusalem’s status, but rather a non-determination – one might think Congress cannot exercise its powers without [...]

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Amicus Brief on Standing in ProgressOhio.Org v. JobsOhio

By on July 14, 2013 12:29 pm in Standing

One of Ohio Governor John Kasich’s more controversial initiatives has been the creation of JobsOhio, a private, nonprofit corporation to encourage investment and economic development within the state. The controversy stems, in part, from the fact that JobsOhio is funded by state liquor revenues.  The state’s limited ability to audit JobsOhio also remains a point of contention.   ProgressOhio.Org, a state-based progressive outfit, and a group of concerned citizens filed suit challenging the constitutionality of JobsOhio alleging, among other things, that the Ohio Constitution bars the state from investing in a private corporation.

Lower courts dismissed the case, concluding that ProgressOhio.Org lacked standing. As a general rule, Ohio courts follow the federal approach of rejecting generic taxpayer standing.  In addition, the lower courts rejected the plaintiffs’ argument that they could fit into a narrow “public interest” exception to the traditional standing requirements. Joined by the libertarian 1851 Center for Constitutional Law, ProgressOhio.Org has brought their case to the Ohio Supreme Court.

Last month, I joined a brief of Ohio legal academics arguing that the lower courts were correct to find that ProgressOhio.Org and the other plaintiffs lack standing to challenge JobOhio. According to our brief, Ohio courts have been correct to adopt a standing doctrine that mirrors those in federal court under Article III. Allowing individual taxpayers or state citizens to file suit any time they believe a given law or initiative might be unconstitutional would risk thrusting the state courts into a wide range of necessarily political debates. If anything, our brief suggests, Ohio courts have already gone too far in allowing a “public interest” exception to the general jurisdictional bar against basing standing for generalized grievances. Our brief takes no position on the merits of the underlying constitutional claims, or the wisdom of JobsOhio, [...]

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Right, Left, and the Standing Issues in the Gay Marriage Cases

By on June 26, 2013 2:18 pm in DOMA, Gay Marriage, Gay Rights, Standing

Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth v. Perry, California Proposition 8 was defended by a group of private citizens, because the state government chose not to support it. There were serious questions about whether both the BLAG and the Prop 8 supporters had a significant enough stake in the case to qualify for standing under Supreme Court precedent. Ultimately, a 6-3 majority of the Court ruled that BLAG did have standing [Clarification – 5 of them ruled only that BLAG could present arguments defending the interests of the federal government, without reaching the issue of whether BLAG had standing in its own right], while a 5-4 majority concluded that the Prop 8 supporters did not.

Until recently, opinion on constitutional standing issues tended to divide along predictable ideological lines. Conservative jurists usually supported narrow notions of standing, seeking to limit the range of parties who could get into federal court, while liberals supported broad ones. But as I previously pointed out here and here, these ideological alignments have begun to break down over the last few years.

Today’s decisions continue that trend. In the DOMA case, the four liberal justices and Justice Kennedy, the most moderate conservative, concluded that the BLAG has standing [but see update below]. But so too did the conservative Justice Alito. Conservative justices Roberts, Thomas, and Scalia dissented. In Hollingsworth, the distribution of votes was even less ideological. The majority opinion written by the conservative Chief Justice Roberts was joined by liberals Ruth Bader [...]

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No Jurisdiction to Review Proposition 8

By on June 26, 2013 10:30 am in Same-Sex Marriage, Standing, Supreme Court

A divided Supreme Court concluded that it lacks jurisdiction to review the constitutional challenge to Proposition 8, and the line-up is an odd one. The Chief writes the majority, joined by Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissents, joined by Justices Thomas, Alito, and Sotomayor.

From the Chief Justice’s opinion:

The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation. In this case, petitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriage as the union of a man and a woman.” Pet. for Cert. i. Respondents, same-sex couples who wish to marry, view the issue in somewhat different terms: For them, it is whether California—having previously recognized the right of same-sex couples to marry—may reverse that decision through a referendum.

Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual “case” or “controversy.” As used in the Constitution, those words do not include every sort of dispute, but only those “historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U. S. 83, 95 (1968). This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.

For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we

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Standing Against E15

By on June 20, 2013 9:27 am in Standing, Supreme Court

Among the petitions for certiorari listed for today’s Supreme Court conference are three (1, 2, 3) challenging a misguided standing ruling by the U.S. Court of Appeals for the D.C. Circuit. In Grocery Manufacturers Association v. EPA a divided panel of the D.C. Circuit held that a range of trade associations challenging the Environmental Protection Agency’s decision to allow broader use of E15 – a blend of gasoline containing 15 percent ethanol — lacked standing to challenge the rule. The standing ruling was dispositive of the case on the merits because the EPA’s decision was contrary to the plain text of the relevant statute.

The three judges on the panel in GMA v. EPA — Sentelle, Tatel, and Kavanaugh — disagreed on how to resolve the case. Judge Sentelle, who announced the judgment of the court, held that no petitioners had standing to challenge the EPA’s decision. Although the EPA had not pressed the standing issue, Judge Sentelle concluded that prudential standing is jurisdictional and could not be waived. Judge Tatel, though agreeing with the dissent on some points, concurred on prudential standing grounds. While Judge Tatel does not believe prudential standing is jurisdictional, he concluded the panel was constrained by controlling circuit precedent concluding otherwise. Judge Kavanaugh, in dissent, argued that multiple groups had Article III standing, that at least one group had prudential standing and, in any event, that prudential standing is not jurisdictional and the issue had been waived by the EPA. For what it’s worth, I think Judge Kavanaugh has the better of the argument here, though I think a fair argument can be made that the panel was bound to find prudential standing jurisdictional.

GMA v. EPA would appear to be cert-worthy. There is a circuit split on the prudential standing [...]

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Right and Left Continue to Change Where they Stand on Standing

By on March 28, 2013 12:13 am in Constitutional Law, Standing

In this week’s oral arguments in the two gay marriage cases before the Supreme Court, right and left-wing litigants continued to take unaccustomed positions on standing: the technical legal doctrine that determines whether would-parties to a lawsuit have enough of an interest at stake to be allowed to participate in the case. Historically, conservatives have tended to advocate restrictive standing doctrines, while liberals have been more permissive. Yet, in the gay marriage cases, it was conservatives who argued that the proponents of California’s Proposition 8 had the right to defend it in court, even though they are not government officials and do not suffer any concrete injury if California is forced to permit gay marriage. In the DOMA case, conservative members of Congress have claimed that they have standing to defend the Defense of Marriage Act in court, even though they wouldn’t suffer any clear injury if it were struck down.

During the oral argument in the Proposition 8 case, conservative justices tended to support the Prop 8 proponents’ right standing, while liberal ones were more hostile, an unusual stance for both groups. Matters are less clear in the DOMA case, where positions on standing among the justices did not as clearly break down along ideological lines. But they still don’t seem to be following the traditional pattern of liberals favoring broad standing rules, and conservatives narrow ones.

The standing issues in these cases arise from an unusual situation in which the liberal Democratic governor of California and the Obama administration chose not to defend the state and federal laws being challenged. As a result, outside conservative groups stepped in to do so. Even so, as I pointed out three years ago, these cases are part of a broader pattern in which standing issues no longer break down [...]

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No Standing to Challenge FISA Surveillance

By on February 26, 2013 11:04 am in Standing, Supreme Court, War on Terror

Today, in Clapper v. Amnesty International USA, the U.S. Supreme Court held that petitioners Amnesty International, et al., lacked standing to challenge surveillance of international communications under the Foreign Intelligence Surveillance Act.  The Court split 5-4 along traditional right-left lines.  Justice Alito wrote for the majority opinion.  Justice Breyer dissented.  Here is the introduction from Justice Alito’s opinion:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General  and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering

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Filibuster Suit Dismissed

By on December 22, 2012 1:23 pm in Administrative Law, Congress, Separation of Powers, Standing

Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, in yesterday’s decision, Judge Sullivan found that none of the plaintiffs, which included members of Congress and individuals claiming they would benefit from the passage of filibustered legislation, have standing to bring the suit. He further found that the case presents a nonjusticiable political question.

The plaintiffs may well appeal, but I’m willing to bet they will not fare any better in front of the U.S. Court of Appeals for the D.C. Circuit. This is the last court in which to press an aggressive standing claim. This lawsuit may generate good press for filibuster opponents, but it’s a legal nonstarter.

P.S. I can’t help but note that it was not that long ago that Common Cause vehemently opposed any effort to eliminate the filibuster, particularly when used to block judicial confirmations. Now, however, Common Cause not only supports filibuster reform, but it also thinks the filibuster is unconstitutional. [...]

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Thoughts on the Oral Argument in Fisher v. University of Texas

By on October 10, 2012 11:24 pm in Affirmative Action, Fisher v. University of Texas, Standing

Today’s oral argument in Fisher v. University of Texas largely bears out what most observers expected. As Amy Howe explained on SCOTUSblog, the five conservative justices seem inclined to strike down the University of Texas’ affirmative action program, though not to completely overrule Grutter v. Bollinger, which allows the use of racial preferences to promote educational “diversity.” As I feared, it seems very possible that Justice Anthony Kennedy will conclude that the University of Texas cannot use explicit racial preferences because it has already achieved a “critical mass” of minorities by virtue of Texas’ Ten Percent Plan, which requires the university to admit anyone who is in the top ten percent of their high school class. This would be a very unfortunate outcome for reasons I discussed here. However, some of the conservative justices seemed skeptical of the very notion of a “critical mass,” as is evident from the following exchange with University of Texas lawyer Gregory Garre:

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter –

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now –

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor…

Later in the oral argument, Chief Justice Roberts complained that it was impossible to tell whether an affirmative program is [...]

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En Banc Petitions in D.C. Circuit Greenhouse Gas Litigation

By on August 28, 2012 3:48 pm in Administrative Law, Climate Change, Environment, Standing

Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state and industry challenges to the EPA’s rules. I summarized the court’s decision here, and provide greater background on the EPA’s regulations and associated policy issues here.

The en banc petitions stress the unusual magnitude and importance of the regulations at issue, as well they should, but that’s often not enough for en banc review. Nor are protestations that that the original panel muffed the merits (case in point), particularly where (as here) most of the issues could be resolved on traditional administrative law grounds. The industry argument that the panel erred in refusing to force the EPA to consider potential adaptation to climate change, for example, is a non-starter. Even if the panel got this question wrong (and I don’t believe it did), that’s not the sort of question that is worthy of en banc review.

There is one issue, however, that could well be en banc-worthy: the panel’s conclusion that industry petitioners lacked standing to challenge the EPA’s so-called “tailoring rule.” While the strict application of Article III standing requirements is nothing new on the D.C. Circuit, here the panel applied the standing rules to prevent the object of a government action from challenging the lawfulness of that action, on the grounds that the harm would not be redressable by a favorable ruling on the merits. Though a plausible reading of the relevant standing precedents, this is a holding that could insulate all manner of regulatory action from judicial [...]

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Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches?

By on February 14, 2012 10:30 pm in Fourth Amendment, GPS Surveillance, Standing

Over the last forty years, the Supreme Court has worked out a series of principles for when a defendant has standing to object to the Fourth Amendment search of someone else’s property. According to the those cases, the key issue is whether the government violated the defendant’s own reasonable expectation of privacy under the framework introduced by Justice Harlan’s concurring opinion in Katz v. United States. The owner, legitimate renter, or legitimate repeated borrower of a car generally has standing to object to a search of it. A person who steals a car or drives it in violation of a rental contract does not.

In the recent GPS decision of United States v. Jones, however, the Supreme Court introduced — or, depending on how you look at it, reintroduced — two new kinds of Fourth Amendment searches. First, the majority opinion introduced a trespass test for what is a search that supplements the Katz expectation-of-privacy test. Second, to the extent you think it proper to combine the votes of the concurring opinions and consider that an alternative holding, five Justices thought that the cumulative effect of 30 days of monitoring of the car also amounted to a search of the car because it revealed such invasive information about its public location over time.

So here’s the question: Does the standing inquiry developed over the last forty years for Katz expectation–of-privacy searches apply in the same way for Jones trespass searches and Jones long-term expectation of privacy searches? Or is the standing test different?

That isssue arose in a case handed down just a week after Jones: United States v. Hanna, 2012 WL 279435, *1+ (S.D.Fla. Jan 30, 2012) (NO. 11-20678-CR). The police suspected that four men — Hanna, Ransfer, Middleton, and Davis — were involved in [...]

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Cert. Petition in Right to Carry Case

By on April 22, 2011 4:19 pm in Constitutional Law, Guns, McDonald v. City of Chicago, Standing, Supreme Court

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . [...]

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Standing in Connecticut v. AEP

By on April 22, 2011 3:50 pm in Climate Change, Standing, Supreme Court

One of the issues in American Electric Power v. Connecticut is whether the state and environmentalist group plaintiffs can satisfy the requirements of Article III standing. One might have thought this issue was settled in Massachusetts v. EPA, at least with regard to the state litigants, but it was not. Although both cases concern injuries arising from global climate change, and both cases feature state litigants entitled to “special solicitude” under Mass. v. EPA, the standing requirements to challenge a federal agency action may be easier to meet than standing requirements generally.

This issue arose in the oral argument when AEP’s attorney, Sidley Austin’s Peter Keisler, was asked whether Mass v. EPA was sufficient to establish Connecticut’s standing. No, Keisler explained, because the Court in Mass was very careful to note that the standing inquiry was different, and easier to satisfy, given the statutory context of the suit, prompting a response from Justice Kagan.

MR. KEISLER: Justice Ginsburg, we believe that Massachusetts was very carefully qualified to focus on the particular regulatory context of that opinion. The Court said that it was addressing standing to challenge the denial of a petition for rulemaking, when the agency would be proceeding incrementally to address a broader problem, and a statute specifically gave the
petitioners the right to seek that kind of incremental protection. The Court was very specific about that. The statutory right was of critical importance, it said, to the standing inquiry.

JUSTICE KAGAN: Mr. Keisler, the Court did say that, but it’s cut off from the Court’s actual analysis in the case. When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.

MR. KEISLER: But it does, Justice Kagan, specifically refer to the regulatory context in which the

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