Sunday, July 24, 2011
Konstantinos Margaritis is a Ph.D. candidate at the National and Kapodistrian University of Athens Faculty of Law. For his doctoral research, he is examining the protection of fundamental rights under the Lisbon Treaty. He writes on the changes in the field of external affairs under the Lisbon Treaty and the impact they will have on the EU as an international actor...
In terms of legal framework, between 1993 and 2009, the EU consisted of three pillars. This system consisted of the European Community, the Common Foreign and Security Policy, and Justice and Home Affairs, which respectively dealt with matters of economics, foreign policy and criminal justice. However, when the Lisbon Treaty entered into force, the EU consolidated the three-pillar system and adopted one legal personality.
To replace the foreign policy pillar, Title V of the TEU was introduced with the Lisbon Treaty. The general provisions of the text set forth the basic objectives of the Union, in terms of creating a framework for more coordinated external action. These provisions heavily emphasized unifying concepts, such as the promotion of democracy and the rule of law, respect of human rights and dignity in the wider world.
Furthermore, in response to the absence of a coordinated foreign policy, the Lisbon Treaty expanded the role of the High Representative of the Union for Foreign Affairs and Security Policy in an effort to coordinate foreign policy. The holder of this position is responsible for organizing EU policy in matters of external action, and speaking for the EU on matters of common foreign and security policy. Furthermore, the High Representative chairs the Council of EU Foreign Ministers and sits in the European Commission. In short, the High Representative serves as a foreign minister for the entire EU, allowing for the more cohesive development and expression of the Union's common foreign and security policy. While the High Representative represents the Union in the international arena, it is always in close cooperation with member states' diplomatic missions. Furthermore, the centrality of unity in the development and expression of foreign policy is reflected in the fact that the High Representative is responsible for trying to resolve diplomatic problems among the Union's member states.
Also contributing to increased coordination is the fact that as an international actor with a legal personality, the EU may conclude international agreements with other countries or international organizations. By crystallizing this, the Lisbon Treaty simplified the conditions under which and the process through which the Union concludes agreements. As article 216 of the TFEU mentions, the Union may also conclude international agreements in case of necessity in order to achieve one of its objectives. According to article 218 of the TFEU, the council keeps the initiative, and recommendations need to be submitted by the commission and the High Representative if the agreement is related to common foreign and security policy. The role of the European Parliament has increased. When the council adopts a decision concluding an agreement under paragraph six, it needs the parliament's consent in some cases, and the parliament's opinion in all the other cases where the agreement is related to common foreign and security policy.
The Lisbon Treaty also provides for increased coordination in terms of the protection of its citizens' personal data. Before the treaty went into force, the TEU did not provide any legal basis for data protection. However, the Lisbon Treaty not only recognized a subjective right to the protection of personal data, Article 39 of the TEU now establishes that specific rules will be laid down by the council on the protection of personal data processed by member states in the area of common foreign and security policy.
In the field of common commercial policy, the power of the European Parliament has also increased under the Lisbon Treaty, as the new article 207 of the TFEU enhances the role of parliament concerning decisions taken in the executive. The Union also enjoys exclusive competence in this area, giving it the sole power to determine the course of the Union's trade with developing countries, which includes areas such as tariffs, trade subsidies, import quotas and voluntary export restraints.
The objectives in the development cooperation area have been modified. The main objective now is to fight poverty. Article 208 of the TFEU highlights the primacy of that goal in stating that the "Union development co-operation policy shall have as its primary objective the reduction, and in the long term, the eradication of poverty." The Union has the power to conclude international agreements for the purpose of development. Furthermore, it has the power to take measures with regard to financial assistance when needed.
Another example of the increased coordination and consolidation of power fostered by the Lisbon Treaty is article 214 of the TFEU, which deals with humanitarian aid. The amendments contain provisions for ad hoc assistance, relief and protection, for people in developing countries that are victims of natural or manmade disasters. In the area of humanitarian aid, the Union is again endowed with the power to conclude international agreements with respect to the principles of international law and human rights.
As explained in the Annual Report 2010 on the European Community's Development and External Assistance Policies and their Implementation in 2009, the EU was the largest provider of development aid. In fact, the EU was responsible for more than half of global official development assistance, which is calculated at €48.2 billion. Furthermore, the EU has developed policies for financial assistance throughout the world. Under the program named V-FLEX, during 2009 and 2010 some €215 million were committed to assist 11 African and two Caribbean countries in combating economic crisis and shortfalls in their national budgets.
The EU's dedication to the protection of human rights is demonstrated from an institutional perspective by its prospective accession to the European Convention on Human Rights (ECHR). The ECHR sets minimum standards and seeks to provide a European framework for the protection of human rights. Furthermore, widely accepted human rights form the basis for mandatory rules that parties have no freedom to derogate from. Accordingly, all EU legal acts have to be adopted in accordance with the level of protection guaranteed by the ECHR. As such, the EU submits its legal acts to be examined by the European Court of Human Rights, a supra-national court specialized in human rights protections.
Another novelty of the Lisbon Treaty concerns the provisions on common security and defense policy. As in other areas of external action, the purpose of the Lisbon Treaty amendments in the area of defense is to harmonize the policy of the member states in terms of security and defense and to promote cooperation. For example, Article 42 of the TEU refers to the situations in which the EU may use military force on missions outside the Union. Those situations "shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistant tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including post-conflict stabilization." Apart from a clearer codification of when the use of military force is appropriate, the Lisbon Treaty provided for the concept of enhanced cooperation in the area of defense policy. This allows for a minimum of nine EU member states to establish advanced cooperation in an area within the EU's competence without requiring the involvement of other member states. Lisbon also provides the framework for the development of a permanent structured cooperation in defense, which would allow member states with higher-level militaries to form a permanent defense structure under EU structures.
Although serious steps have been taken towards a common Union defense policy, the EU's ability to function independently of member states under the Lisbon Treaty is still limited. Every decision in the area of common defense policy has to be taken by the European Council acting unanimously, and every member state must adopt those decisions in accordance with their own constitutional requirements. Furthermore, each member state's decisions regarding defense policy must be respected. This requires high levels of political will, as achieving complete consensus in an issue as divisive as defense policy is not easily accomplished. A perfect example of this is the ongoing Libya conflict. The lack of consensus has inevitably led to the lack of a common defense policy. On the basis of their different interests, the EU's major military powers have adopted completely different measures for dealing with the promotion of peace and stability in Libya. France and the UK have approved a strategic plan that includes military intervention, while Germany has abstained from any kind of military operation and in turn has favored greater political pressure.
The changes underlined above seem to develop a new EU strategy for the international arena. Under the new institutional framework, the Union is able to act with heightened autonomy and, as such, it demonstrates a united and more highly integrated policy in its external affairs. New unifying concepts are also focused on to achieve strategic coordination in terms of development, the promotion of the rule of law and human rights, and the battle against poverty. Furthermore, these uniting policies aid in the creation of a more positive profile of the Union in the world and in accomplishing alliances with developing countries. As the solidarity clause dictates "the Union and its member states shall act jointly in a spirit of solidarity." Going forward, the course of the Union will be determined by the political will of its member states, their decisions in how to deal with the challenges of the twenty-first century and their approaches to the new framework established by the Lisbon Treaty.
Konstantinos Margaritis holds an LL.M. in International and European Public Law from Tilburg University in the Netherlands and has an LL.B. from Democritus University of Thrace in Greece. He is a member of Heraklion Bar Association, and is an associate at Antonios I. Bitzarakis Law Firm.
Suggested citation: Konstantinos Margaritis, The Lisbon Treaty and the New Framework for EU Foreign Affairs, JURIST - Dateline, July 24, 2011, http://jurist.org/dateline/2011/07/konstantinos-margaritis-lisbon-treaty.php.
Friday, July 15, 2011
Ryan Suto, Syracuse University College of Law Class of 2013, is the President of the Syracuse chapter of the American Constitution Society and recently moderated a panel discussion on the issue of WikiLeaks and the Constitution. He writes on how the US Supreme Court must begin to engage in public diplomacy through its rulings...
To enhance American legal influence, the Supreme Court must engage in what can be termed as public diplomacy. Public diplomacy can be defined as the image of a state or its people, as maintained by a government, organization or people. As such, the Court should endeavor to facilitate the understanding of its decisions, which are used to explain and test US legal values the world over. The world currently faces challenges that are inherently global in nature. For example, the legal questions associated with WikiLeaks, the Arab Spring and Internet neutrality and censorship, are all matters that transcend borders. While the international nature of these issues proves political and legal isolationism faulty, hard power intervention also has grave shortcomings. As such, the Court's ability to indirectly apply legal force and influence presents itself as an attractive alternative, and it should be maximized accordingly.
The US has its greatest potential for influence in nations drafting new constitutions, forming new governments and otherwise attempting to progress and modernize. In these countries legal foundations are often still being set, making them more likely to look to foreign decisions for guidance and precedent. The fact that many foreign courts have cited US Supreme Court opinions demonstrates their influence beyond US borders. For example, quite recently India's Supreme Court found a constitutional right to counsel, citing many Supreme Court decisions as precedent. In its own precedential decision, the Supreme Court of India wrote, "[i]n our opinion, a criminal case should not be decided against the accused in the absence of counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell v. Alabama." The Court further cited Gideon v. Wainwright and Brewer v. Williams in its holding.
Nonetheless, foreign court decisions that cite to the Supreme Court have generally declined. This likely reflects either a decreased foreign interest in the US legal system or the US's decreased interest in public legal diplomacy. Either way, it remains important that the US recover its jurisprudential influence, as this is a tool too valuable to lose.
First Amendment protections in general and freedom of speech in particular, provides an illustration of how the Court may utilize public diplomacy to expand the influence of the US legal tradition. In legal terms, the US has only arrived at its current approach to the First Amendment in the last 50 years, and the meaning of those 45 words is still evolving. However, in that time the US has been at the forefront of developing human rights such as freedom of expression and individual liberty. During the twentieth century these legal principles have been our greatest and most valuable export. For example, the Court expressed the extensive protection of speech and acts offered by the First Amendment in its 1989 decision, Texas v. Johnson. In Johnson, the Court held that the First Amendment protected the burning of the US flag as a means of protest. Justice William Brennan, writing for the majority, stated that "[t]he way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." The Court voiced to the world that disagreeable and offensive speech must be tolerated as freedom of expression and the protection of individual liberties are at the core of a free society.
The vital discussion of societal values was at the forefront of the Johnson decision, and it is this exact discussion that is absent from the current Court's decisions. For example, Snyder v. Phelps, a case decided this year, presented a perfect opportunity to engage in public diplomacy with regard to free speech. In this case, tort damages were sought against the Westboro Baptist Church for protesting at a soldier's funeral, spouting hate speech at the burial itself and on the Internet. While this case was viewed as controversial by the media and the general public, it garnered strong consensus on the Court. In an 8-1 decision, the majority held that the First Amendment protects those who stage peaceful protests near the funeral of a military service member from tort liability.
The majority opinion written by Chief Justice John Roberts is certainly on firm ground legally speaking. However, he and the other justices that joined his opinion missed an excellent opportunity to engage in public diplomacy. At a time where many post-conflict, developing and emerging societies are grappling with the concept and consequences of free speech, the Court would do well to offer non-doctrinal reasons for ideologically illustrative decisions. Understandably, the idea of allowing the actions of the Westboro Baptist Church to go unpunished in a society that values respect and order over individual liberties seems offensive and repugnant. However, rather than engaging in constructive dialogue or explaining why the US values free speech, the Court does little more than state that speech is powerful and that in spite of the pain it can cause, this nation has chosen a path that protects it. The Court insufficiently explains the value of free speech. While previous decisions of the Court have noted how important free speech is for the development and maintenance of a healthy society, political vibrancy and open and honest debate, the Court's current decisions avoid such commentary.
The Court is certainly the best institution to explain to scholars, governments, lawyers and lay people alike the enduring legal values of the US, why they have been chosen and how they contribute to the development of a stable and democratic society. A return to the mentality that one of America's most important exports is its legal traditions would certainly benefit the US and stands to benefit nations building and developing their own legal traditions, and our relations with them. Furthermore, it stands to increase the influence and higher the profile of the bench. The Court already engages in the exercise of dispensing justice and interpreting the Constitution, and to deliver its opinions with an eye toward their diplomatic value would take only minimal effort and has the potential for high returns. While the Court is indeed the best body to conduct legal diplomacy, it has been falling short in doing so in recent sessions.
We are at a critical moment in world history. People in the Middle East and North Africa are asserting discontent with their governments. Many nations in Africa, Asia, and Eurasia are grappling with new technologies, repressive regimes and economic despair. With the development of new countries, such as South Sudan, the formation of new governments, as is occurring in Egypt, and the development of new constitutions, as is occurring in Nepal, it is important that the US welcome and engage in legal diplomacy and informative two-way dialogue. As a nation with lasting and sustainable legal values and traditions, the Supreme Court should be at the forefront of public legal diplomacy. With each decision, the Supreme Court has the opportunity to better define, explain and defend key legal concepts. This is an opportunity that should not be wasted.
Ryan Suto is pursuing a joint degree at Syracuse University, and will graduate with degrees in law, post-conflict reconstruction, international relations and public relations. He is a recent graduate of The Pennsylvania State University with degrees in political science and philosophy. He has also written articles on the development of the Nepalese constitution and institutional development in post-apartheid South Africa.
Suggested citation: Ryan Suto, Judicial Diplomacy: The International Impact of the Supreme Court, JURIST - Dateline, July 15, 2011, http://jurist.org/dateline/2011/07/ryan-suto-judicial-diplomacy.php.
Tuesday, July 12, 2011
Joseph Schaeffer, University of Pittsburgh School of Law Class of 2012, is spending the summer working for a firm specializing in energy law. He writes on Marcellus exploration and the regulation of hydraulic fracturing, specifically considering the implications of Pittsburgh's decision to ban the practice at the municipal level...
Job creation and tax payments in a recession sound great. So what is the fuss? Opponents of Marcellus exploration allege that hydraulic fracturing has negative impacts on the environment and public health. The primary concern is that chemicals used in hydraulic fracturing will leak (or worse, be dumped) into watersheds. A secondary concern is that the fracking process itself releases methane gases trapped underground that will seep into the water supply. The movie Gasland, by Pennsylvania film director Josh Fox, purports to show this methane contamination in shocking detail, and plaintiffs in two recent Pennsylvania cases allege groundwater contamination as the result of fracking operations. Other concerns include noise and air pollution from the wells, fracking's high water use, and increased truck traffic.
New York has reacted to these perceived threats by extending its moratorium on hydraulic fracturing for another year, in addition to suing the Delaware River Basin Coalition and the Army Corps of Engineers. Pennsylvania, on the other hand, has issued several thousand Marcellus permits, and former Pennsylvania Department of Environmental Protection Secretary John Hangar has been outspoken about the safety of natural gas exploration. In contrast to New York and Pennsylvania, West Virginia's response has been that of inactivity. Marcellus specific legislation failed to pass during the last regular legislative session, and West Virginia's new interim governor, Earl Ray Tomblin, has yet to call for a special legislative session.
This has led to the perception that hydraulic fracturing specifically, and Marcellus exploration in general, are unregulated at the federal and state level, and municipalities in the Appalachian region have responded accordingly. In November 2010, Pittsburgh became the first major American city to outlaw hydraulic fracturing within city limits. Buffalo, New York, followed Pittsburgh's lead in February of 2011. Most recently, Morgantown, West Virginia, has responded to drilling activity outside its city limits by considering a ban of its own on hydraulic fracturing.
However, the question remains, how do these municipalities justify regulating an activityoil and gas explorationthat is almost exclusively regulated by states and the federal government? Referring to the actual text of these ordinances, it is clear that water contamination is the primary concern of these municipalities. Where the municipalities differ, however, is in how they justify the passage of these ordinances. Pittsburgh and Morgantown are representative of two different approaches. This article will discuss Pittsburgh's ordinance, as Buffalo's ordinance is moot and Morgantown's has yet to take effect.
Pittsburgh's Community Protection from Natural Gas Extraction Ordinance [PDF] is remarkable for both the authorities it cites and those it does not. Pittsburgh bases its authority to regulate natural gas extraction on the inherent right to self-governance established by the Declaration of Independence and on Article 1, Section 2, of the Pennsylvania Constitution, which states "[a]ll power is inherent in the people." Interestingly, the ordinance cites neither Pittsburgh's home rule powers under Pennsylvania law nor the Natural Resources Clause of the Pennsylvania Constitution, which states "[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment." Instead, the rights established by the Natural Resources Clause are alluded to in the statements of law setting forth a right to water and rights of natural communities.
Pittsburgh's decision to ground the ordinance in constitutional rights, rather than statutory home rule powers is likely the result of the Pennsylvania Supreme Court's holding in Range Resources Appalachia, LLC v. Salem Township. In Salem Township, the Court held that Salem's ordinances regulating surface and land development related to oil and gas drilling were preempted by the Pennsylvania Oil and Gas Act. Pittsburgh anticipates a similar preemption challenge in Section 5 of the ordinance. Section 5.3 attempts to preclude corporations (which in Section 5.2 are told that they will not have the rights of "persons") from enforcing state or federal preemptive law against Pittsburgh or from challenging or overturning any ordinances adopted by the Pittsburgh City Council. Finally, the ordinance attempts to render invalid any permit, license, privilege or charter issued by any state or federal agency if it would conflict with the ordinance's terms.
Pittsburgh's ordinance is breathtaking in its audacity (and its unconstitutionality). Even if one forgets that the ordinance is almost certainly preempted by state law, as held in Salem Township, there are multiple constitutional deficiencies. First, denying corporations the right of "personhood" implicates various issues of due process and equal protection. Second, and perhaps most clearly, the ordinance violates Pennsylvania's Certain Remedy Clause. Article 1, Section 11 of the Pennsylvania Constitution states: "All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and eight and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." By prohibiting corporations from challenging the ordinance, Pittsburgh is blatantly violating Pennsylvania's Certain Remedy Clause.
This, however, reflects an interesting tactical choice. Generally, municipal ordinances in home rule states receive a presumption of validity upon review. Courts further apply a presumption of constitutionality to legislative enactments. Thus, Pittsburgh's ordinance puts potential challengers in a bind. If a corporation brings a preemption claim, Pittsburgh can state that this remedy is excluded because the corporation is not a "person" for purposes of standing, the corporation is specifically excluded from challenging the ordinance or attempting to enforce preemption law. Assuming that the court quickly disposes of these arguments as unconstitutional, the plaintiff must then argue that Pittsburgh lacks the power to enact the ordinance or that it is otherwise preempted. Pittsburgh grounds the ordinance in constitutional rights, however, giving it two arguments. First, Pittsburgh can argue that it is not trying to regulate in the same area as the legislature (oil and gas) since its ordinance is directed toward public health and safety. Second, Pittsburgh can argue that the ordinance is not inconsistent with state law, and thus not preempted, because it advances state constitutional goals of self-governance and natural resource conservation. A corporate plaintiff is thus in the unenviable position of having to argue that Pittsburgh does not have recourse to or has misapplied these constitutional rights or that these rights are nevertheless preempted.
Any challenge will result in a show trial, and even where Pittsburgh loses (and it will lose), the forces behind the ordinance win (and the taxpayers footing the legal bills lose). Pittsburgh will be able to challenge the rights of corporations and the idea of corporate personhood, and testimony about the safety of hydraulic fracturing will allow the city to call doomsday experts. This is just in the courts of law. The court of public opinion will likely have even less relation to fact, with confusion about preemption doctrine devolving into a personification of the evil corporation exploiting state laws and connections to deny the will of local voters.
With all of the potential negatives and the relative lack of Marcellus exploration in Pittsburgh's Allegheny County, it is not surprising that no one has challenged Pittsburgh's ordinance. If and when the challenge does come, however, it could set the stage for a fascinating and protracted legal battle.
Joseph Schaeffer, the former head of JURIST's student commentary service, is the recipient of the Energy and Mineral Law Foundation Scholarship. He graduated from West Virginia University, Phi Beta Kappa, with a BA in International Studies and Foreign Languages, where his research focused on post-war German literature.
Suggested citation: Joseph Schaeffer, Municipal 'Fracking' Bans and Preemption in Appalachia, JURIST - Dateline, July 12, 2011, http://jurist.org/dateline/2011/07/joseph-schaeffer-hydraulic-fracturing.php.
Friday, July 08, 2011
Hillary Stemple, University of Pittsburgh School of Law Class of 2012, worked in the health care industry for five years prior to entering law school and is now in the Health Law Certificate program. She says that the individual mandate must be constitutional as a necessary and proper regulation of commercial activity due to the way in which the growing uninsured population negatively impacts the entire market...
As of November 2010, the Centers for Disease Control and Prevention (CDC) estimated that almost 60 million Americans lacked health insurance. While the morality of allowing so many of our citizens to go without adequate health care access can be debated, what is not debatable is the effect those 60 million people have on the overall cost of health care. The reality is that while these people do not have health insurance, they still become sick or injured and must seek treatment from doctors and hospitals. As the Sixth Circuit stated in its ruling, "[v]irtually everyone requires health care services at some point."
Unfortunately, health care providers bear a large burden when it comes to providing services to the uninsured. Hospitals receiving federal money in the form of Medicare payments are required by the Emergency Medical Treatment and Active Labor Act to treat all patients presenting with emergency conditions, without consideration for their insurance status. This means that individuals without insurance will receive hospital treatment, regardless of their ability to pay. While hospitals are allowed to bill uninsured patients for the cost of their care, these individuals often lack the funds to pay for the care they have received, meaning that hospitals are left holding large uncollectable balances for care already given. In 2008, the cost of uncompensated care for hospitals nationally was about $43 billion, or 5 percent of hospital revenue.
A 5 percent drop in hospital revenue can have a large impact, particularly hospitals in lower population density areas that struggle to provide adequate care in their communities while competing with larger health care entities. As a result, hospitals must attempt to make up the lost revenue by raising costs for all patient care in hopes of obtaining higher payments from insurance companies for the care of insured patients. Health insurance companies then pass on the increased costs to the general public in the form of higher premiums. The last part of this self-perpetuating cycle, which leads to the ever-increasing cost of health care in America, is that as insurance premiums rise, more and more individuals are priced out of the insurance market, resulting in a continual increase in uninsured individuals.
The Sixth Circuit rightly acknowledged that a failure to purchase insurance is not a failure to participate in the health care system, stating, "[v]irtually everyone participates in the market for health care delivery," and "far from regulating inactivity, the [individual mandate] regulates active participation in the health care market." With the PPACA, Congress was not attempting to regulate the inactivity of purchasing health insurance but rather was attempting to regulate the broader health care system.
The US Supreme Court has a long history, dating back to their ruling in Wickard v. Filburn, of acknowledging Congress's broad powers under the Commerce Clause in regulating economic activity, even activity that may only affect commerce in the aggregate. It would be almost impossible to argue that health care in America is not a commercial activity. In 2009, health care expenditures in the US were nearly 18 percent of the gross domestic product (GDP). Clearly, health care is a commercial activity, and in reaching the conclusion that Congress was regulating health care with the individual mandate provision, it is necessary to conclude that the individual mandate is constitutional under the Commerce Clause.
Even if the Sixth Circuit had found that the individual mandate exceeded Congress's authority, it is likely that the authority for the provision could be found under the Necessary and Proper clause. The Constitution gives Congress the authority to "make all Laws which shall be necessary and proper" for the execution of its enumerated powers (in this case the authority to regulate commerce). With the almost certain conclusion that health care is an economic activity, the individual mandate would need only be essential to the broader regulation to be constitutional.
The basic nature of insurance is what makes the individual mandate necessary to the broader efforts to regulate health care costs. The basic aims of the PPACA are to lower health care costs in America, and grant more individuals access to health insurance. In order to accomplish these goals, the PPACA places more restrictions on insurance companies to prevent them from denying access to high-risk, or high-cost patients. Basically, the PPACA is opening the doors to all individuals regardless of medical history. In doing this, the insurance companies are going to be taking on individuals with expensive medical needs, making their profits decrease. In order to compensate for the more expensive individuals, insurance companies will be forced to raise their prices, again contributing to the self-perpetuating cycle resulting in a higher number of uninsured individuals.
However, there is another way to insure the "sick" population, without causing insurance companies to increase costsrequire healthy individuals to purchase insurance as well. When enough "healthy" individuals purchase insurance, they offset the "sick" population the insurance companies are forced to insure under the PPACA. This will stabilize the cost of health insurance, making it more affordable for all. The PPACA relies on the influx of healthy and currently uninsured individuals into the health insurance market to make the overall scheme function. Therefore, the individual mandate is a necessary aspect of the broader health care regulation scheme.
The Sixth Circuit's opinion was an important first step in settling an issue that will ultimately be resolved by the Supreme Court. It provides a strong foundation and a compelling argument for why the PPACA is constitutional. Hopefully, the Supreme Court will come to the same conclusion.
Hillary Stemple, a senior editor on JURIST Paper Chase, is the 2011 recipient of the University of Pittsburgh Esther F. Teplitz Award for Health Law. She graduated from Pennsylvania State University with a degree in Biology and Nutrition and later served as the manager of an orthopedic practice.
Suggested citation: Hillary Stemple, Necessary and Proper: Health Care Costs and the Individual Mandate, JURIST - Dateline, July 8, 2011, http://jurist.org/dateline/2011/07/hillary-stemple-health-care-costs.php.
Thursday, July 07, 2011
David Meyers, Columbia Law School Class of 2013, worked as a staffer to President George W. Bush from 2006 to 2009 and later in the US Senate. He argues that although health care reform may fit within current precedent, the Supreme Court must temper its Commerce Clause jurisprudence to strike down the individual mandate...
In light of the ruling by the US Court of Appeals for the Sixth Circuit finding that the individual mandate is a proper exercise of Congress's Commerce Clause power, it is clear that the Supreme Court will have to overturn or temper its case law, especially Wickard v. Filburn, if it wants to invalidate the individual mandate.
The Sixth Circuit ruling garnered attention because Judge Jeffrey Sutton, a George W. Bush appointee, who wrote the controlling rationale, held that under current case law the individual mandate is constitutional. Judge Sutton's written opinion reveals a judge who felt forced to uphold the law because of the way that Congress and the Supreme Court have distorted the original intent and meaning of the Commerce Clause.
Wickard is the exemplification of the Commerce Clause run amok. In this case, the Supreme Court held that Congress could limit the amount of wheat a farmer produced for his own use under the guise of regulating interstate commerce. On its face, this seems absurd. How can something be part of interstate commerce when it is intended solely for personal consumption? Thanks to then-recent cases, such as United States v. Darby and NRLB v. Jones, the Supreme Court held that Congress could regulate anything that "exerts a substantial economic effect on interstate commerce."
This is why from 1937 to 1994 not a single law was struck down for exceeding Congress's Commerce Clause power. The two major cases that struck down Commerce Clause regulations since 1994, Lopez and United States v. Morrison, were invalidated because they regulated non-economic criminal activity and dealt with criminal statutes.
However, as Judge Sutton notes in his opinion, the health care bill is easily distinguished from Lopez and Morrison since Congress is regulating economic activity because health care costs consume nearly 20 percent of our gross domestic product.
Judge Boyce Martin, who wrote the court's opinion, also cited Wickard when he held that "Congress may also regulate even non-economic intrastate activity if doing so is essential to a larger scheme that regulates economic activity." Clearly, an individual mandate is essential to the health care bill's larger scheme of regulating the health care industry. As the Obama administration has argued, without the mandate people would wait until they were sick to purchase health insurance and the system would be unsustainable.
Furthermore, under cases such as Wickard and Lopez, Congress can regulate any activity if it has a rational basis for believing that the activity "substantially affects" interstate commerce. Since congressional action almost always passes a rational basis test, and since almost everything that involves economic activity "substantially affects" interstate commerce, the individual mandate appears to be constitutional under current case law.
Therefore, Judge Sutton believed the only choice he had under cases like Wickard was to uphold the individual mandate. According to Judge Sutton, "if, as Wickard shows, Congress could regulate the most self-sufficient of individualsthe American farmerwhen he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it." A careful reading of Judge Sutton's opinion, however, shows that he is not convinced that the Supreme Court will or should uphold the mandate. The Supreme Court, he writes, "can decide that the legend of Wickard has outstripped the facts of Wickardthat a farmer's production only of more than 200 bushels of wheat a year substantially affected interstate commerce. A court of appeals cannot."
The argument that the health care bill can be distinguished from Wickard because it regulates inactivity is not very persuasive. As the Obama administration and Judges Martin and Sutton point out, all Americans at some point are going to use the health care system. Therefore, Congress is not forcing them to buy medical careonly to regulate how they pay for it and ensure that they pay for it in a way that does not shift costs onto others.
The only way the inactivity argument might work is through an as-applied challenge, as Judge Sutton suggests. For example, a challenge could be brought by someone who had the money to pay his medical costs out of pocket but was forced to buy health insurance to pay his bills. The plaintiff could argue that this would be similar to Congress telling everyone who drives that they have to buy a particular type of car.
This argument is still likely to fail because Congress is not forcing this man to seek health care; it is only regulating the manner in which he pays for it. Under current case law, there is a strong argument for the mandate's constitutionality because "the provision regulates economic decisions regarding how to pay for health care that have substantial effects on the interstate health care market."
As Judge Sutton correctly points out, under Wickard as it is currently interpreted, Congress can force Americans to buy products they do not necessarily want: "is it any more offensive to individual autonomy to prevent [Filburn] from being self sufficient when it comes to supplying feed to his animals than an individual when it comes to paying for health care? It seems doubtful that the Wickard Court would have thought so. See Wickard (acknowledging that the law 'forc[ed] some farmers into the market to buy wheat they could provide for themselves')."
If the American people fully understood the case law on this issue, most would agree with Justice Thomas's opinion in Lopez that the Supreme Court's jurisprudence "has drifted far from the original understanding of the Commerce Clause." This drift has not been a positive development. The Commerce Clause has been distorted to give Congress the power to pass a broad set of laws that it may not have the power to enact. The text of the Commerce Clause says that Congress can "regulate Commerce with foreign Nations, and among the several States." The various different tests for what "affects" or "impacts" interstate Commerce are all inventions of the Court, and they have gone too far. The Supreme Court's interpretation of the Commerce Clause has given too much power to the federal government and has disrupted our carefully constructed system of checks and balances.
Those who disagree with Justice Thomas must answer the simple question he posed in Lopez: If the Framers intended Congress to be able to regulate anything that "substantially affects" interstate Commerce, why does the Constitution grant Congress the power to enact bankruptcy laws, or coin money and fix the standard of weights and measures, or punish counterfeiters of United States coin and securities, establish post offices and post roads, or to grant patents and copyrights, or to punish Piracies and Felonies committed on the high Seas? All of these activities "substantially affect" foreign and interstate commerce. The Framers wrote these provisions into the Constitution because they never intended the Commerce Clause to give Congress the power to regulate everything that substantially affects interstate commerce.
As Justice Thomas stated in Lopez: "[p]ut simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of [the Commerce Clause] that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation."
Whether or not the American people support President Obama's health care law, they should hope the Supreme Court takes Justice Thomas up on his invitation to temper its jurisprudence and restore common sense to the Commerce Clause.
David Meyers is a regular contributor to the Daily Caller, and has also provided commentary for outlets such as National Public Radio, the Star Ledger, and Renewable Energy World.
Suggested citation: David Meyers, Commerce Clause Jurisprudence and Original Intent in Health Care, JURIST - Dateline, July 7, 2011, http://jurist.org/dateline/2011/07/david-meyers-commerce-clause.php.
Tuesday, July 05, 2011
Nicholas Battaglia, Albany Law School Class of 2012, is an intern in the school's Health Law Clinic. He argues that the partisan affiliations of the judges coupled with strong legal arguments will result in more successes for the government in the health care litigation...
The Sixth Circuit relied on Commerce Clause jurisprudence in its decision, concluding that regulating the practice of self-insurance is facially constitutional, first, because it is an economic activity that substantially affects interstate commerce; and, second, because it is a part of a broader national scheme.
To support the finding that the individual mandate substantially affects interstate commerce, the court first distinguished the instant case from United States v. Lopez and United States v. Morrison, both cases in which the Supreme Court found the link between the activities regulated and the interstate market too attenuated. Here the court took a functionalist approach, making use of national statistics, to reason that the link was not too attenuated because "[s]elf-insuring for the cost of health care directly affects the interstate market for health care delivery and health insurance." The court consequently found that "the practice of self-insuring substantially affects interstate commerce by driving up the cost of health care as well as by shifting costs to third parties."
Next, the court aligned themselves with Gonzales v. Raich and Wickard v. Filburn, and applied the aggregation doctrine to the effects of non-commercial activity on the overall interstate market. The Sixth Circuit reasoned that in the aggregate, "Congress had a rational basis to conclude that failing to regulate those who self-insure would undermine its regulation of interstate markets in health care delivery and health insurance." Taking a precedential approach, the court looked at cases within the Sixth Circuit, but also at cases in the Fourth and Eighth Circuits, which upheld statutes by finding that failing to regulate non-economic intrastate activity in the aggregate would undermine the efficacy of an overlying interstate regulatory scheme.
Finally, the court addressed the argument that Congress has exceeded its power under the Commerce Clause by regulating inactivity. Acknowledging that the Supreme Court has never resolved this issue, the Sixth Circuit noted that "[v]irtually everyone will need health care services at some point, including, in the aggregate, those without health insurance." In conclusion, the court found that there is no definitive constitutional bar prohibiting Congress from regulating inactivity, and, even if there were, it would not impact this case due to the unique aspects of health care that make all individuals active in the market.
Florida v. US Department of Health and Human Services currently sits in the Eleventh Circuit on appeal from Judge Roger Vinson's decision in January, finding the individual mandate unconstitutional. Chief Judge Joel Dubina, and Judges Stanley Marcus and Frank Hull are presiding over the case, two of which were nominated by Democratic presidents. The composition of the bench, coupled with the fact that the government in this case advances arguments similar to those already made by the Sixth Circuit, suggests another favorable outcome for the Obama administration.
In its brief [PDF], the government makes a broader national scheme and substantial effects argument, while also employing the aggregation doctrine and a functionalist approach that uses similar national statistics related to health care costs. It claims congressional Commerce Clause power is valid and that the individual use of the health care commodity has a substantial effect on supply and demand in the national market for health care. Additionally, the government's brief tackles the inactivity argument. It posits that paying for health care is inevitable regardless of whether an individual is insured. Essentially, it argues that an individual, who does not purchase health insurance, is gambling whether or not he will need to pay for health care in the future. When he does need to, he will likely not be the only one bearing the cost. While the government's reasoning differs at times from the Sixth Circuit's, the conclusions they draw are fundamentally similar, and in light of the Eleventh Circuit's composition they are particularly likely to be well received.
Furthermore, in fending off Florida's claims the government draws on United States v. Maxwell, which involved a ban on the possession of child pornography. Initially in 2004, the Eleventh Circuit had invalidated the ban. However, after the Supreme Court handed down its decision in Raich, the Eleventh Circuit used the broader national scheme rationale and the aggregation doctrine to expressly overturn its earlier decision in Maxwell, reflecting the jurisprudential expansion of congressional power to regulate purely intrastate matters under the Commerce Clause. This argument is identical to the way the Sixth Circuit interpreted the effect of Raich in United States v. Bowers; essentially the Sixth Circuit version of the second Maxwell case. However, it is much more likely to be successful because it shows a clear progression Commerce Clause evolution, particularly in the Eleventh Circuit, and it is likely to be very persuasive.
There are currently two cases concerning health care reform in the Fourth Circuit. However, in Liberty University v. Geithner, serious issues of standing must be overcome, making Virginia v. Sebelius the more consequential of the two appeals. The case sits before Judges Andre Davis, Diana Motz, and James Wynn; who were all appointed by Democratic presidents.
Again, the government's brief provides similar arguments to those used in the Sixth Circuit's opinion. The government shares the Sixth Circuit's view that shifting health care costs to other participants in the health care market increases the overall cost of health care. Likewise, they both use national statistics regarding health care costs and draw on Raich and Wickard to justify the argument that the intrastate market has an aggregate impact on the interstate market. However, the government's argument is less convincing than those made in the Eleventh Circuit and by the Sixth Circuit because it failed to bolster its reasoning through a comparison to Maxwell. If a parallel had been drawn to this case, it would have served to explain more substantially how a purely intrastate activitypossession of child pornographycould affect the larger interstate market. While the government is certainly still on solid ground, its failure to compare Raich to circuit-specific cases weakened the overall strength of its aggregate argument.
Nonetheless, the government did notably distinguish the instant case from Lopez and Morrison. To do so, the government drew on Heart of Atlanta Motel v. United States, which established that a purely intrastate business could have an interstate impact. The government furthered this case to establish and explain how the ease of modern transportation has expanded the contours of congressional Commerce Clause regulation. Persuasively, it argues that travel permits individuals to cross state lines for medical care, and even that some hospitals are designated trauma centers for multiple states, but also that illness knows no boundaries and can easily spread to individuals travelling far from home. This is contrary to congressional attempts to regulate what were deemed as purely intrastate activities under the Commerce Clause in Lopez and Morrison, as they primarily involved local actors and did not implicate issues of mobility or interaction between states.
Overall, the government's brief presents legal arguments in favor of finding the individual mandate constitutional that are on solid ground. With no political barriers to hold them back, and with solid legal reasoning on their side, it is likely that the Fourth and Eleventh Circuits will join the Sixth in finding in favor of the Obama administration.
Another health care reform case, New Jersey Physicians, Inc. v. Obama, is on the docket in the Third Circuit. It comes to the court on appeal from the district court's decision granting a motion to dismiss. Similar to Liberty University, the major hurdle for the challengers here is not whether the individual mandate is constitutional, but whether there is standing to litigate. The case is before Judges Michael Chagares, Kent Jordan, and Joseph Greenaway; the first two appointed by Republican presidents, and the last by a Democrat. If the issue of standing is resolved in the plaintiff's favor, for the individual mandate upheld, one of the judges will need to follow the lead of Judge Sutton in the Sixth Circuit. Judge Chagares and Judge Jordan have similar backgrounds. Both have worked for the Department of Justice and have been law professors. However, one could argue that Judge Jordan may be more likely to defect, as he spent time clerking for Judge James Levin Latchum, who was nominated by a Democratic president.
Facing a tough road ahead and a likely circuit split, the individual mandate will probably find itself on the Supreme Court docket for review before long.
Nicholas Battaglia serves as Executive Editor for Lead Articles on the Albany Law Review. In addition to his work at the Health Law Clinic, he has worked as an intern in the health law department of an Albany, New York law firm.
Suggested Citation: Nicholas Battaglia, Constitutional Politics: How Partisanship Will Shape Health Care, JURISTDateline, July 5, 2011, http://jurist.org/dateline/2011/07/nicholas-battaglia-health-care-politics.php.
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