United States v. Morrison

Florida Attorney General Questions Constitutionality of Healthcare Bills in Congress

by Hans Bader on December 31, 2009

in Health and Illness, Healthcare, Insurance, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation

Florida Attorney General Bill McCollum is questioning whether it is constitutional to force people to buy health insurance, as the health care bills backed by the Obama administration require.  This “individual mandate” is unprecedented and appears to exceed Congress’s power under the Commerce Clause of the Constitution.

As the Congressional Budget Office noted in 1994“,

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

As the news story about the attorney general’s concerns notes, in Supreme Court decisions issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade in goods and services.”  (I was involved as an attorney in the latter of those two decisions, United States v. Morrison (2000)).

The individual mandate does not regulate activities, much less economic activities, but rather regulates based on inactivity, by penalizing those who decline to buy a product, health insurance (a product that young people generally do not need — as a young man, I did not go to the doctor or dentist, or purchase any drugs, for a 10-year period, and if I had become ill, my family could have easily paid my expenses).

That exceeds Congress’s powers under its Morrison and Lopez rulings, as I explained yesterday in a more extended analysis of the issue.  However, it is likely that at least four members of the current Supreme Court would vote to uphold the individual mandate, since the Morrison and Lopez decisions were 5-to-4 decisions.

Other aspects of the health care bills have also attracted legal criticism, such as their racial preferences and racial discrimination (it discriminates against white applicants in some provisions, and against minority patients in others; both forms of discrimination drew criticism from the Civil Rights Commission), and the manner in which they regulate insurance companies.

Regardless of whether the individual mandate is constitutional or not, it is certainly controversial — as are other aspects of the health care bills, which most Americans oppose.  As noted earlier, the bills would reduce life-saving medical innovation, raise many taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets.  They would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.

Hate Crimes Bill Passes, Eroding Civil Liberties and Double Jeopardy Safeguards

by Hans Bader on October 23, 2009 · 1 comment

in International, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Yesterday, Congress approved a measure to dramatically expand the existing federal hate crimes law, by adding it to an unrelated defense appropriations bill.  The measure would expand current law to cover virtually all hate crimes already covered by state law (both by adding gender, sexual orientation, disability, and transgender characteristics to a law originally designed to protect racial minorities, and by getting rid of the requirement that a hate crime effect federally-protected activities to be prosecuted in federal rather than state court.)

The measure was opposed by the U.S. Commission on Civil Rights on double-jeopardy grounds.  As I previously explained at length, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer also object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of trying all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill contains speech-related provisions designed to allow prosecution of people who are not violent and do not intend to cause hate crimes, but whose speech inadvertently incites a hate crime by some violent, bigoted nut.  For now, courts are likely to block such prosecutions on First Amendment grounds, under the Supreme Court’s Brandenburg decision banning prosecutions of people whose speech unintentionally incites violence or other illegal acts (and the federal appeals court ruling in White v. Lee faithfully applying that principle to speech that incites violations of federal civil-rights and anti-discrimination statutes).  But if the ideological composition of the Supreme Court changes substantially, it is conceivable (although far from certain) that that could change.  Although the provisions will probably prove unsuccessful in censoring speech, it speaks volumes about the mindset of the hate-crimes bill’s backers that they would even try.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision, as I explained earlier.

Passage of the bill was aided by lousy reporting, in which journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration supports the hate-crimes bill, which it used as a wedge issue in the 2008 election.

The Obama administration recently urged restrictions on hate speech and blasphemy at the United Nations, joining in calls by left-wing lawyers and conservative Islamic countries to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation.  Religious minorities have often been persecuted for “blasphemy” in Islamic countries for disagreeing with Islam, criticizing the prophet Mohammed, or interpreting Islam’s holy book, the Koran, differently than the majority of Muslims do.  In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, defending the death penalty against racism charges, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.