Hillary’s Unlawful Plan to Overrule Voter ID Laws

By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

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A legal cure for the FDA’s free speech malady

By DAVID B. RIVKIN JR. And ANDREW GROSSMAN, May 21, 2015

We are free to tell you that a clinical trial shows the drug Vascepa to be an effective treatment for persistently high triglyceride levels. But should the drug’s manufacturer, Amarin, tell you or your doctor the same thing, the company would face criminal prosecution and civil liability. Therein lies a First Amendment anomaly, one that may finally be resolved by a lawsuit that Amarin filed earlier this month against the Food and Drug Administration.

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions.

But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses.

But Amarin can’t say anything about the Vascepa trial. The drug is approved only as a treatment for “very high” triglyceride levels, not those that are merely persistently high. As a result, doctors and their patients are being kept in the dark about a treatment that, for some patients, has fewer side effects than other drugs.

The FDA claims its speech ban is a necessary part of its drug-approval process, which requires manufacturers to demonstrate efficacy for each intended use. The agency aggressively investigates and the government regularly prosecutes pharmaceutical companies and their representatives that promote off-label uses of their drugs. Yet once a drug is approved, doctors can prescribe it for any use—and the FDA recognizes, in its regulatory guidance—that such uses are essential to effectively translate medical research into improved health outcomes.

The only real explanations for the FDA’s conduct are maintaining tight control over pharmaceutical companies and bureaucratic aggrandizement.

The FDA’s ban on discussing off-label drug uses is indefensible under First Amendment law. The speech it bans is truthful, not misleading, and concerns a lawful activity. Yes, the government has a substantial interest in drug safety and public health, but banning truthful speech on health issues won’t advance public health. Drug manufacturers know more about their products than anyone else. The off-label promotion ban denies doctors’ and patients’ abilities to make informed and intelligent treatment decisions. As the Supreme Court recognized in Sorrell v. IMS Health Inc. (2011)—which struck down a state law prohibiting the sale of prescribing data to pharmaceutical companies—“information can save lives.”

Blocking such information could cost lives. New uses for existing treatments are discovered all the time. The recent Ebola outbreak, for example, prompted researchers to evaluate the efficacy of existing antiviral drugs against the disease, hoping to find an off-label match. That process continues for survivors who face lingering symptoms. When Dr. Ian Crozier, an Ebola survivor, was recently found to still harbor the virus in his eye, doctors successfully treated him with an experimental antiviral drug. Another recent example is Rapamune, an immunosuppressant approved for use in kidney transplants that has been found to suppress certain types of cancers, including of the lung.

A prohibition on the promotion of off-label drug uses by means of false or misleading information—in other words by fraud—would surely pass constitutional muster. Moreover, the FDA could also assist doctors and patients in sorting through information regarding off-label uses, much as it already provides safety information for approved uses on its website. The agency could even ban particular off-label uses where this was necessary to protect public health.

But the FDA has no intention of loosening its grip. In 2012 the Second Circuit Court of Appeals overturned—on First Amendment grounds—the conviction of a pharmaceutical sales rep for talking to physicians about the off-label uses of narcolepsy drug Xyrem. However, the agency has not appealed the decision in United States v. Caronia, most likely to avoid an adverse ruling by the Supreme Court that would apply across the country.

Unfortunately, even if the government loses the Amarin case, it will again probably forgo an appeal. This would enable the FDA to continue enforcing a flagrantly unconstitutional policy by default. The best prospect for a cure may lie in Congress.

Messrs. Rivkin and Grossman are attorneys with the BakerHostetler firm in Washington, D.C.

Enduring incivility for the sake of free speech

By David B. Rivkin Jr. and Andrew M. Grossman — Sunday, April 19, 2015

First Amendment lawyers always get asked the same question: Is he really allowed to say that?

The “he,” inevitably, is some television pundit, newspaper columnist or blogger. And the “that” is a stream of invective. A pointed example is economist Paul Krugman’s characterization of Rep. Paul Ryan’s 2012 budget proposal: “The most fraudulent budget in American history. And when I say fraudulent, I mean just that.”

So if he meant “just that,” the question goes, isn’t that libel, and why isn’t Mr. Ryan suing him for damages?

And from time to time, we’ve heard the same question raised about one of our own cases, climate scientist Michael Mann’s lawsuit against detractors who harshly criticized his “hockey stick” research. We represent two of the defendants, the Competitive Enterprise Institute and its adjunct fellow, Rand Simberg. They called Mr. Mann’s work “intellectually bogus” and biased “data manipulation” done “in the service of politicized science.”

So is it libel? Some may respond with a smirk that truth is an absolute defense, but the answer is actually more basic: There’s nothing to be proven true or false.

Libel law is subject to the First Amendment. Its guarantee of freedom of speech wouldn’t be worth much if the government could authorize private citizens to sue one another over their views. At a minimum, a challenged statement must contain (in the Supreme Court’s formulation) a “provably false factual connotation.”

As simple as that rule is to articulate, it has proven complicated to apply in practice. It is not an “opinion defense.” In other words, one cannot escape liability for a slander — for example, “Rep. Jones took a bribe” — merely by prefacing it with “I think” or “In my opinion.”

At the same time, it is also not enough that a challenged statement merely involve facts. If that were the rule, practically any speech could be the basis for a lawsuit. Assertions of fact underlie nearly all statements of opinion, and basic human communication — let alone punditry and debate — would be impossible if the airing of sharp opinions could lead to a court battle.

The U.S. Court of Appeals for the District of Columbia Circuit was forced to confront these issues directly when Dan Moldea, author of the expose “Interference: How Organized Crime Influences Professional Football,” brought suit against The New York Times over an unfavorable review that said the book was marred by “too much sloppy journalism.” No doubt that conclusion could damage the career of a professional journalist like Mr. Moldea, causing him the kind of injury recognized by libel law. On the other hand, though, isn’t spirited criticism at the heart of the First Amendment? This was the same line-drawing problem that had vexed courts for decades: how to separate protected commentary on the facts from potentially libelous statements of fact.

The D.C. Circuit’s solution was elegant. “Sloppy journalism” couldn’t be libel because it was a “supportable interpretation” of the undisputed facts: the contents of the book discussed in the review. “Interference” contained what the reviewer identified as several errors and omissions, and a reader would understand that the negative conclusion was simply “the writer’s interpretation of the facts presented.” Or, as one appeals court put the more general principle, if a speaker “is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable” as libel.

This approach has been widely adopted. Thus, courts have recognized First Amendment protection for things like a critic’s dig at a second-rate “Phantom of the Opera” (“a rip-off, a fraud, a scandal, a snake-oil job”), a sports columnist’s criticism of a basketball coach (she “usually finds a way to screw things up”), and a magazine’s charge that a political firebrand suffered “bouts of pessimism and paranoia.” It equally protects Paul Krugman’s intemperate remarks; at the end of the day, he was just expressing his view of the Ryan budget.

The same is true of Michael Mann’s critics. They identified the basis for their views: Mr. Mann’s research, detailed criticisms of his statistical techniques, and leaked emails disclosing that he had employed statistical “tricks” to “hide the decline” in projected temperatures and had participated in efforts to blackball scientists skeptical of catastrophic global warming. Their words are, therefore, protected, no less than Mr. Mann’s criticism of competing scientists’ research as “pure scientific fraud.” A reasonable reader understands that these statements are not accusations of literal fraud, but strongly-stated criticism.

So where subjective views are concerned, the answer is yes, you really can say that. Occasional incivility is a small price to pay for freedom from government policing the boundaries of acceptable discourse.

• David B. Rivkin Jr. and Andrew M. Grossman practice appellate and constitutional law with the firm of Baker & Hostetler in Washington, D.C.

Source: http://www.washingtontimes.com/news/2015/apr/19/david-rivkin-andrew-grossman-harsh-opinions-protec/?page=all

Gay Rights, Religious Freedom, and the Law

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY, April 9, 2015 6:53 p.m. ET

Debates about the Indiana and Arkansas Religious Freedom Restoration Acts, or RFRAs, have regrettably pitted religious freedom against gay rights. Critics claim the laws provide a license to discriminate against lesbian, gay, bisexual or transgender (LGBT) individuals. But this criticism shouldn’t be aimed at the religious-freedom laws, which don’t license discrimination based on sexual orientation or anything else.

Those wanting to advance LGBT rights should focus on enacting laws that bar discrimination. If there is a legal “license” to discriminate based on sexual orientation, it is because few jurisdictions today provide protection against such discrimination, or because the Constitution may immunize such behavior in certain circumstances.

There is no federal law prohibiting private discrimination based on sexual orientation. An executive order by President Obama in 2014 bans such discrimination only for federal workers and contractors. About 20 states and some municipalities prohibit sexual-orientation discrimination in workplaces and public accommodations. But the majority of states still don’t proscribe discrimination based on sexual orientation, though discrimination based on race, gender, ethnicity or national origin is banned.

The federal Religious Freedom Restoration Act was passed by overwhelming bipartisan majorities and signed by President Clinton in 1993. It represented a backlash against the Supreme Court’s 1990 decision in Employment Division v. Smith. That decision held that the First Amendment’s Free Exercise Clause doesn’t allow a religious exemption from laws of general applicability—e.g., compulsory military service, or prohibitions on drug use or animal cruelty—even if those laws substantially burden religious exercise.

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To Stop Obama’s Power Grabs, Kill the Senate Filibuster

By DAVID B. RIVKIN JR. and LEE A. CASEY, March 23, 2015 7:31 p.m. ET

The Obama administration has systematically targeted critical congressional powers, including the authority to enact laws. It has rewritten such statutes as the Affordable Care Act, the Controlled Substances Act and the Immigration and Nationality Act. And it has effectively blocked Congress’s “power of the purse”—eviscerating authorities essential to maintain the balance of power between the legislative and executive branches of the federal government.
The recent standoff over the Department of Homeland Security appropriations bill is only the latest effort by President Obama to thwart Congress’s constitutional authority to limit the president’s use of federal funds to approved purposes. The administration’s basic position is that it is entitled to get its way on all of its spending requests. Any effort to impose budget caps or appropriations riders—all traditional congressional mechanisms—is illegitimate and the cause for the government shutdown, for which Congress is to blame.

By striking at Congress’s constitutional powers, particularly the power of the purse, Mr. Obama seeks an unprecedented aggrandizement of presidential power. One way to prevent that happening is by reforming the filibuster rule.

Spending battles and government shutdowns have taken place in the past. Yet the Obama administration’s strategy, denying the very legitimacy of Congress’s use of its appropriations power, is historically unprecedented. It has been abetted by Democratic senators who deploy the filibuster to keep spending legislation that the president opposes from an up-or-down Senate vote. Their goal is to spare the president any potential political damage from casting a veto, and to allow him to shift responsibility for government shutdowns from himself to Congress—undermining the paramount constitutional virtue of accountability. This situation has particularly vitiated the authority of the House of Representatives, which originates all of the spending bills.

The constitutional balance of power between the two political branches must be restored. In this connection, it is important to understand that the Senate filibuster rule has no constitutional basis. That document does not reference a “filibuster,” but merely permits each house of Congress to determine its own procedural rules. The filibuster is a historical fluke, resulting from the Senate’s failure to impose constraints on how long senators may speak on a particular matter, thereby delaying other business and especially votes on legislation that require only a majority to pass.

Only a cloture motion, which requires a supermajority of three-fifths (60) to pass, can end these delaying tactics—and cloture has become nearly impossible to achieve because of an increasingly ideologically divided Senate in which neither party has a supermajority.

This raises fundamental issues: Since all constitutional provisions must be read in harmony, rules in one house that consistently frustrate the ordinary legislative process by preventing a vote work to nullify other key congressional powers. Ultimately, this undermines the Constitution’s balance of power between Congress and the executive.

Despite the positive role the filibuster has played by delaying improvident legislation, it has become counterproductive. And the filibuster is no longer an untouchable Senate tradition. Last year, then-Majority Leader Harry Reid abolished the filibuster for most judicial and executive-branch appointments simply to help President Obama get controversial nominees confirmed—and did so in the middle of a Senate session, in violation of the rules. There is every reason to expect that similar political expediency will lead to future limitations on the filibuster when there is again a Democratic Senate majority—which should give comfort to any Republicans who continue to support the filibuster out of respect for Senate tradition.

Tradition is important, and eliminating the filibuster, despite its diminished policy utility, would be a momentous step. Yet it is one Senate Republicans should consider taking, given the constitutional imperatives at stake. One possibility is for the Senate to adopt rules limiting the time any particular matter can be debated before a vote, thereby removing the procedural gap that permitted filibustering in the first place. Another would be to reduce the number of votes needed to carry a cloture motion to a simple majority.

Whatever the means chosen, this strategy should be decoupled from any particular policy battle. It should be undertaken only at the beginning of the next congressional session, and with appropriate explanations of the reasons for the change: It is an essential measure so that Congress can begin to reassert itself against an executive branch that increasingly acknowledges no limits on its power; an executive branch that is even considering how the president himself can raise taxes.

If legislation commanding the support of majorities in both the House and Senate can no longer be permanently delayed by filibustering, a recalcitrant president would still be able to shut down a government agency or department by vetoing appropriations. But the American people would know whom to hold responsible.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-to-stop-obamas-power-grabs-kill-the-senate-filibuster-1427153516

Obama’s Security Council Gambit

by David B. Rivkin, Jr. & Lee A. Casey, March 15, 2015

The recent open letter by 47 Republican Senators, putting Iran on notice that the US Constitution fundamentally limits the President’s ability unilaterally to conclude a durable nuclear weapons agreement, has prompted strident criticisms from both the American and Iranian officials, giving some tantalizing hints on how a “nuclear deal” with Iran will be achieved. Despite some carefully-phrased statements to the contrary, it appears that the administration plans to evade the Constitution’s clear requirement that the Senate approve all treaties by having the UN Security Council adopt a resolution implementing the deal.

Indeed, Iranians seem to have been aware of this cynical game plan for quite some time, as evidenced by strong rejoinders in the Iranian state-controlled press, which mocked the Senate letter. Meanwhile, Iranian Foreign Minister Javad Zarif stated that any nuclear weapons deal “will not be a bilateral agreement between Iran and the U.S., but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council and will also be endorsed by a Security Council resolution.” And European diplomats and UN officials also have been aware for quite some time about the administration’s Security Council gambit. Only Congress and the American people have been in the dark.

This deception aside, the Security Council-centric approach, while solving some of the Administration’s political problems, would impose very significant long-term costs on the United States, and would not ultimately achieve a binding deal that cannot be altered.

The Constitution’s framers purposely divided the treaty-making power between the president and Senate, requiring that the Senate consent to any treaty by a two-thirds supermajority, both to limit presidential power and to ensure that all such international undertakings by the United States enjoyed broad domestic support. This bedrock requirement cannot be avoided by claiming that an agreement ordering critical aspects of our relationship with another country is somehow not a “treaty,” or by reference to another treaty like the UN Charter.Read more…

Ratification of the Charter committed the United States, like other UN members, to comply with certain Security Council resolutions and those resolutions may impose binding international obligations on the United States. Specifically, Chapter VII of the Charter indicates that the “Security Council shall determine the existence of any threat to the peace. . .and shall. . . decide what measures should be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” By invoking Chapter VII, the administration intends to bypass the Senate and Congress as a whole.

The Charter, of course, does not and cannot reorder the Constitution’s division of power between Congress and the president. As the Supreme Court noted in a recent case, involving U.S. obligations to implement International Court of Justice decisions under the Charter, where it found that ICJ decisions were not automatically binding as a matter of domestic law “[t]he President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution.” Medellin v. Texas (2008)

Nevertheless, having the Security Council drive an Iranian agreement will have several deleterious legal and policy consequences. First, while the Iranian nuclear deal would not be binding on the United States as a “signatory” to the agreement, rendering Secretary Kerry’s statement to this effect technically correct but utterly misleading, it would bind the United States as a UN member.

Second, as is common with Chapter VII resolutions, the Iranian nuclear weapons resolution would keep the Council seized of the matter. This means that the resolution could be revised only by future Security Council action, which the United States cannot guarantee. For example, the United States and its allies would be unable to extend the proposed 10-year sunset provision, even if that became necessary based on Iranian conduct, since Iran would surely oppose the measure with the backing of Russia and China, who can veto any change.

This point is worth emphasizing, since the administration’s main oft-articulated reason for choosing the 10-year time frame for the nuclear deal is its belief that over this time period Iran’s regime would lose its revolutionary character and become a responsible regional power. This optimistic assumption has been strongly challenged by Israel, Saudi Arabia and other Sunni Arab states, who point out that Tehran hasn’t mellowed over the last several decades. The response by administration’s supporters has been that the United States will be able to react in the future to evolving Iranian behavior, whether positive or negative; this claim rings hollow, given the Chapter VII resolution that would enshrine the nuclear weapons deal.

And even if Iran’s own behavior is impeccable, other developments may well arise that would require changes in the agreement. For example, Saudi Arabia has indicated that it will endeavor to acquire nuclear infrastructure matching Tehran’s, thus precipitating a nuclear arms race in the Middle East and beyond. And the administration’s erstwhile priority has been to deny uranium enrichment capability to Sunni Arab states.

So, to salvage this goal, it might wish to try changing the Iran nuclear deal, and yet, having chosen the Security Council venue, it would unable to so. This is highly ironic, since the administration’s main justification for eschewing the treaty route is to preserve the President’s flexibility to change the deal on a moment’s notice, if circumstances demanding the change arise.

Third, it would be up to the Security Council to determine whether or not Iran is complying, and whether any particular violation is material. Even if the United States believes that Iran is in clear violation of its obligations, it could not suspend compliance with its own obligations unless the Security Council agreed. If it threatened to use force without Security Council approval – which remains possible as a self-defense measure under the Charter – the U.S. would certainly be branded an international lawbreaker at a tremendous diplomatic cost.

Indeed, the broader consequence of this whole approach would be to make the Security Council Iran’s powerful international protector, buttressing its ambitions as a regional hegemon and inducing Sunni Arab states to propitiate Tehran. While the Security Council has not always been responsive to US wishes—given the veto power wielded by other permanent members—Washington has at least been able to render it ineffective by exercising it own veto. The transformation of the Security Council into Iran’s ally would represent one of the most disastrous failures of American statecraft, the point that the administration seems to have overlooked.

Fourth, the international law consequences aside, the administration may well argue that a Security Council resolution binding on all UN member states, coupled with certain existing delegations of authority from Congress to the president, has a comparable domestic legal effect, giving the President authority to suspend or even cancel the statutory sanction regime now in place against Iran. Although this argument is legally flawed, it might give the administration some political cover to lift sanctions against Iran.

The administration is also likely to claim that, having dismantled U.S. statutory sanctions, it will retain leverage against Iran thru the so-called “snap back scheme,” whereby the Security Council, having vitiated some Iran sanctions entirely, will suspend the rest of them on a rolling basis. This would require the Security Council to renew the suspension every 180 days, theoretically enabling the United States to block this by exercising it veto power.

This argument, however, fails to carry the day; since the Security Council would be seized of the compliance issues, it would be exceedingly difficult for the United States to claim that Iran has violated the agreement and unilaterally block the renewed sanction suspension. Moreover, once the sanctions have been relaxed for a protracted period of time and enough Western companies have invested in Iran, re-imposing them would be ever more difficult. And, once the Iranian economy has recovered, it will become resilient to the resumption of sanctions, even if they could be re-imposed.

Overall, it is understandable why by-passing Congress and going directly to the Security Council has appeal to the president and his advisors, who are desperately looking for something that can be portrayed as foreign policy achievement and appreciate the depth and breadth of congressional opposition to any agreement permitting Iran to retain its nuclear infrastructure. But this tactic would also create tremendous diplomatic and national-security costs for the United States in the future, giving Iran the “high ground” as a victim of American lawlessness in future confrontations over its nuclear ambitions.

It would also set a dangerous precedent for future presidents, who may also be determined to achieve their foreign policy ends regardless of Congress and the Constitution’s requirements for treaty-making. This would lead to the aggrandizement of presidential power at the expense of Congress and warping of the separation-of-powers architecture, which is the primary means of protecting individual liberty in our constitutional system.

Moreover, if the purpose of using the Security Council is truly to tie the hands of a future president and Congress who may view the Iranian regime and its geo-political ambitions differently, it will not work. However binding Security Council resolutions may be on the international level, they are not “treaties” and the UN Charter – which is – is not self-executing. Thus, although the U.S. might be in violation of its international obligations, as a matter of domestic law, the president must still obtain congressional assent before he can lawfully lift statutory sanctions against Iran.

A future president could simply begin again enforcing those sanctions against Iranian assets, individuals and businesses that violate them. Perhaps even more importantly, even if the United States were to take a harder line against Iran in the future, violating the anticipated resolution, the Security Council would have to adopt a second resolution imposing enforcement measures against the United States, which the United States could of course veto.

In other words, if the administration does proceed to enshrine a nuclear-arms deal with Iran through the Security Council as a means of cutting Congress out of the process, it will not achieve its ultimate goal of a long-term agreement binding on the United States. It will merely impose additional and avoidable costs on the United States in the future when – as will almost certainly be the case – Iran again moves towards achieving nuclear power status. As a result, the administration should eschew this path and accept what the Constitution requires – Senate approval of the treaty it is now negotiating.

Messrs. Rivkin and Casey are partners at BakerHostetler LLP, specializing in constitutional litigation, and served at the Department of Justice and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://nationalinterest.org/feature/obamas-security-council-gambit-12421

The Federalism Fallacy in King v. Burwell

By DAVID RIVKIN and ELIZABETH PRICE FOLEY, March 11, 2015

Last Wednesday, the Supreme Court heard oral arguments in King v. Burwell, the latest challenge to the Affordable Care Act (ACA). The case centers on a provision of Obamacare that authorizes federal tax subsidies for individuals only if they purchase health insurance through an “Exchange established by the State.” If an individual purchases insurance through a federal-run exchange (in the event that the state opts out of setting up its own exchange), can she still qualify for Obamacare subsidies? The Obama administration says yes; the King plaintiffs say no.

A great deal is at stake here. If the plaintiffs win, individuals in 34 states—the states that have opted not to operate a state insurance exchange—will still be subject to Obamacare’s individual mandate, but they won’t qualify for federal tax subsidies. As a result, their insurance will cost more out-of-pocket. Moreover, because individuals in these 34 states won’t get tax subsidies, employers in these states won’t be subject to the employer mandate, so they won’t have to offer health insurance and can’t be taxed for failing to do so. And yet, those states would be able to continue registering their profound opposition to the entirety of the Obamacare regulatory scheme, thereby undermining its legitimacy. Given these consequences, supporters of Obamacare are pulling out all the stops to prevent a plaintiffs’ victory.

One recent attempt to save tax subsidies in these 34 states has come from an amicus brief filed on behalf of four law professors, two of whom are former clerks to Justice Ruth Bader Ginsburg. During the King oral arguments, it became apparent that their argument had found favor with Ginsburg and three other liberal justices and had gained some traction with the court’s centrist, Justice Anthony Kennedy.

Ironically, the centerpiece of their argument is federalism—the division of powers between state and federal governments—a concept that, while a key part of the Constitution’s separation of powers architecture, is not particularly favored by liberals. Specifically, the law professors’ claim that the court should rule in favor of the Obama administration by invoking the “clear statement rule,” a legal doctrine designed to protect state sovereignty.

However, applying this rule to the King case would be unprecedented and deeply antithetical to federalism.Read more…

The clear statement rule is a doctrine that helps courts interpret laws in a way that prevents Congress from treading on the states unnecessarily. As the Supreme Court reiterated in Bond v. United States (2014), the clear statement rule counsels courts that they must be “certain of Congress’ intent before finding that a federal law overrides the usual constitutional balance of federal and state powers.”

For example, when interpreting federal statutes that touch upon state sovereignty or areas of traditional state police power, such as criminal law, the court has insisted on a clear statement by Congress of its intent to do so.

Particularly notable is this: In every single instance where the Supreme Court has invoked the clear statement rule, it has been to prevent Congress from using its enumerated powers in a manner that harms the states as states. The clear statement rule is utterly inapplicable, however, when Congress uses its power directly on citizens. And in the Affordable Care Act, when Congress exercises its taxing power to grant (or revoke) tax subsidies to individuals, that power operates directly on individuals, not on states.

This is an extremely important distinction. Indeed, the ability to legislate directly upon individuals, rather than through state intermediaries, was the primary motivation for writing the Constitution to replace the Articles of Confederation. As Alexander Hamilton observed in Federalist No. 15, the “great and radical vice” of the Articles of Confederation was that its legislative power operated only upon “STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist.” He further explained, in Federalist No. 16, that the federal government “must carry its agency to the persons of the citizens” and “must be able to address itself immediately to the hopes and fears of individuals.”

The clear statement argument being advanced in King embraces this notion of “state-as-intermediary” between the federal government and individual citizens. More specifically, the argument is this: If citizens lose tax subsidies, this harms the states as states because without clear notice of the consequences of declining to run a state exchange, states cannot make a meaningful choice to protect their citizens. Specifically, in the law professors’ amicus brief, they assert, “In order to function as sovereigns and protect the interests of their people, including in the legislative process itself, the States are entitled to know the legal consequences of their decisions to participate in a federal-state program.”

But denying tax subsidies to some citizens and making health insurance more expensive in the 34 states without state-run exchanges doesn’t hurt the states qua states. It admittedly hurts some citizens within those states, but hurting individuals within a state cannot be equated, under any existing clear statement or other federalism case law, with hurting states as sovereign entities. Indeed, this view of equating harm to state citizens with the harm to the states was decisively rejected by the Supreme Court in Massachusetts v. Mellon (1923). In that case, the justices ruled that, when the federal government exercises its taxing and spending power—as it has with the Obamacare tax subsidies—states are not representatives of their citizens in a parens patriae manner, as it is “no part of [a State’s] duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.”

Incidentally, the last time the law professors’ argument was seriously advanced was during the pre-Civil War era, when Confederate states asserted that various federal government actions, such as those devaluing a slave-owner’s property interest in his slaves, harmed state sovereignty by harming the state’s citizens. Indeed, the Nullification Crisis of 1832, the brainchild of Sen. John Calhoun of South Carolina, was based on the argument that states didn’t have to obey a federal tariff law because it harmed Southern farmers. This political philosophy—that states are harmed when their citizens are harmed in some way by the federal government—was the heart of the Confederate states’ defense of slavery. We fought a Civil War to put this notion to rest.

The ultimate irony of the clear statement argument in King is that the much-discredited notion that states have a duty to interpose themselves between the federal government and their citizens is a philosophy that’s hardly consonant with the court’s liberal justices. It is thus more than a little odd that these law professors have opportunistically embraced this outdated vision of state sovereignty merely because it could provide a means to accomplish the desired goal of saving Obamacare’s tax subsidies.

But there’s more: Even assuming, however, that one is willing to embrace openly this theory of states-as-intermediaries, the clear statement rule still wouldn’t apply under the facts in King. The amicus brief by the four law professors contends, “states were led to make choices about participation in this federal program with virtually no notice of the consequences of those choices.” And, if states did have notice of the consequences for failing to operate a state exchange, Kennedy suggested during the oral argument that the choice may have been unconstitutionally coercive, “It does seem to me that if [the plaintiffs’] argument is correct, this is just not a rational choice for the States to make and that they’re being coerced.”

The salient questions are therefore whether the states had notice of the consequences of their choice to operate a state exchange and, if so, was this a “real” choice or a coercive one?

States were given perfectly clear notice by the plain language of the statute itself—which makes it clear that tax subsidies are available only to individuals who purchase insurance on an “exchange established by the State”—and which the states were perfectly capable of comprehending; to suggest otherwise, is an affront to the intelligence of state officials and lawyers. But the notice is also evidenced by the fact that in January 2012, seven states asked the Obama administration for a legal opinion or court declaration confirming whether the administration’s announced interpretation of the law—which extended subsidies to individuals purchasing insurance on federal-run exchanges—was correct. This indicates that states were both aware of, and concerned about, the dubious legality of the administration’s position extending subsidies to individuals in states without state-operated exchanges.

Moreover, a well-publicized lawsuit filed by Oklahoma challenged the Obama administration’s interpretation asserting that tax subsidies couldn’t be granted in Oklahoma precisely because Oklahoma had decided not to operate a state exchange. If nothing else, this lawsuit should reasonably have alerted other states to the possibility that citizens in states without state exchanges might not receive tax subsidies. And even so, multiple states decided not to operate a state exchange.

Assuming states were, in fact, aware that declining to operate a state exchange would result in lost tax subsidies for their citizens, this doesn’t mean that their choice to do so was a “coercive” one, forced on them by the federal government, and necessitating invocation of the clear statement rule. Even if Congress had been crystal clear about this consequence, there would be no state coercion triggering federalism concerns. Indeed, if it were otherwise, virtually any exercise of Congress’s taxing and spending power that depends on a state’s decision to opt in (or out) of federal largesse would be considered coercive if opting out would harm the state’s citizens. The entire Medicaid program would thus be unconstitutionally coercive, as would welfare programs such as Temporary Assistance for Needy Families (TANF), as these programs require an initial choice by states to either participate, or not participate. If states decline to participate, the poorest citizens in these states are undoubtedly harmed, in the sense that they will not be eligible for Medicaid or welfare benefits, as are citizens in other states. But no one has ever suggested, until now, that such harms to citizens renders states’ initial choice—to participate or not—coercive. This argument, if accepted, would render this country’s biggest social safety net programs unconstitutional.

Indeed, if the choice given to states under the ACA—to operate a state exchange or not—is coercive, presumably the correct remedy is for the court to strike down the Act’s individual tax subsidy, as it’s the seed from whence the unconstitutionally coercive choice sprouted. The Supreme Court could perhaps mitigate the perceived state coercion by rewriting the law to grant subsidies when purchasing insurance on any kind of exchange. This is what many believe the court did, in an effort to save the ACA’s mandatory Medicaid expansion in NFIB from constitutional infirmity. But engaging in such contortions seems unlikely, as the court is undoubtedly sensitive to the need to preserve its institutional legitimacy as a neutral interpreter of the law and avoid the perception that it is acting (again) as a council of revision.

Moreover, it should be noted that the court has never employed the clear statement rule in a situation involving a new regulatory bargain being offered to states by Congress. In the case of a new law such as Obamacare, the choice being presented to the states wasn’t altering states’ long-established expectations, as it was in NFIB v. Sebelius. In that case, the court concluded that Obamacare’s mandatory Medicaid expansion, in fundamentally revising Medicaid’s nature, was a coercive “gun to the head” of states, who had chosen years ago to operate Medicaid programs but under very different terms.

Beyond this fundamental understanding of when the concept of coercion can be properly applied, it’s important to realize that states had a meaningful choice, with pros and cons of both sides, regarding whether to operate a state exchange. If a state decided to operate a state exchange, it would cost it millions of dollars, but its residents would qualify for subsidies when they bought health insurance on the exchange. By contrast, if a state opted not to operate a state exchange, its residents would lose tax subsidies, but the state itself would save millions of dollars. And perhaps most importantly, the employers in that state would avoid the employer mandate and be able to create more jobs with the money saved.

Avoiding the ACA’s employer mandate would obviously be an economic boon for employers, and a victory for employers’ liberty. This is salient because the court has made it clear, most recently in a unanimous decision in Bond v. United States (2011), that “by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” If, in King, the court concludes that states can’t opt out of the employer mandate, the liberty-enhancing function of federalism will be thwarted. If employers are subject to the employer mandate regardless of whether their state operates a state exchange, this is a net reduction of liberty for employers, with no net increase in liberty for individuals, who are subject to the individual mandate regardless of where they live. Since the purpose of federalism is to preserve individual liberty, this strongly suggests that the plaintiffs’ interpretation, not the Obama administration’s, furthers federalism.

The bottom line is that declining to operate a state exchange has both good and bad consequences—and each state is free to weigh those consequences as it thinks best. In this regard, as Oklahoma Attorney General Scott Pruitt argued in a recent Wall Street Journal op-ed, “The states are not children that the federal government must paternalistically ‘protect’ from the consequences of their choices by rewriting statutes. In our constitutional system, states are free to make decisions and bear the political consequences, good or bad, of those choices.” He further explained that declining to operate an exchange “allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole,” as well as proclaim that it didn’t want the “employer mandate … to have effect within its borders.” While Oklahoma’s citizens lost tax subsidies, the state believed the benefits of declining to operate an exchange outweighed this cost. And its choice, while difficult, “was a choice the state was happy to make.”

States thus had good reason to decline operating a state exchange. The fact that declining to operate a state exchange would have negative consequences for some of those states’ citizens isn’t the same as a negative consequence for the state qua state. Even if it is—which would be a novel interpretation of the clear statement rule indeed—there is no reason to believe that the states made the choice to opt out with anything less than eyes wide open.

Invoking the clear statement rule in King would thus turn the Court’s federalism case law on its head, converting it from a principle that requires giving states a choice to one that forbids giving them a choice if they might make a “wrong” choice that hurts some of their citizens. The not-so-subtle insinuation is that states are incapable of making difficult choices and should be paternalistically protected from doing so. This would transform federalism and the clear statement rule from a shield designed to protect state sovereignty into a weapon that can be used to disregard state choices and impose a one-size-fits-all, top-down federal solution. This interpretation, in short, is a perversion of the clear statement rule and the federalism principle that animates it. It cannot be countenanced by anybody who is truly committed to federalism.

David Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He practices appellate litigation with particular focus on constitutional law at Baker Hostetler LLP and represented the 26 states that challenged the constitutionality of Obamacare. Elizabeth Price Foley is professor of constitutional law at Florida International University College of Law. She is the author, most recently, of The Tea Party: Three Principles.

Source: http://www.politico.com/magazine/story/2015/03/king-v-burwell-supreme-court-obamacare-subsidies-case-federalism-argument-115997.html