Edward A. Hartnett *
For a time, the law governing facial, as opposed to as-applied, constitutional challenges was, it seemed, simple to state. There was a general rule and a First Amendment exception. The general rule was that facial challenges were rare, disfavored, and could succeed only if the challenger convinced the court that there were no circumstances under which the challenged statute could be constitutionally applied. As the Supreme Court put it in United States v. Salerno, it had “not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment,” and that in all other contexts, a facial challenge could succeed only by showing that “no set of circumstances exists under which the Act would be valid.” The exception, the First Amendment overbreadth doctrine, enabled a challenger to show that, although his own conduct was not constitutionally protected, the statute was sufficiently broad that it also applied to others whose conduct was constitutionally protected, and therefore could not constitutionally be applied to anyone. This overbreadth doctrine was designed to avoid the chilling of free speech.
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* Richard J. Hughes Professor for Constitutional and Public Law and Service, Seton Hall University School of Law. J.D., 1985, New York University School of Law; A.B., 1982, Harvard College. Thanks to John Jacobi and Frank Pasquale for helpful comments.
Bradley W. Joondeph *
The litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (“ACA” or “Act”) raises a number of interesting and important questions of constitutional law. But in cases of this magnitude and political salience, the Supreme Court’s deliberations typically are shaped by forces that transcend the relevant doctrine. The Court’s response to the ACA is unlikely to be an exception. Specifically, the Justices’ reactions to five questions—all of which go beyond the doctrinal merits—will likely determine the Act’s fate: (1) whether this is the sort of case in which judicial review is necessary, or instead one that the elected branches are capable of solving on their own; (2) whether the states are “separately incompetent” to reform the nation’s health care financing system, such that invalidating the Act will leave a policy void (and whether the existence of such a void should matter); (3) whether Congress’s power to adopt a more radical, single-payer-type system for all Americans should inform whether Congress has the authority to adopt the more incremental ACA; (4) whether the Court can invalidate the ACA, especially with an ideologically predictable 5-4 split, without appearing overly partisan to the American public; and (5) how Chief Justice Roberts will perceive the impact of this case on his legacy—as an opportunity to reaffirm the singular importance of judicial restraint, or as an instance where the Court’s intervention is necessary to preserve foundational principles. Each of these considerations extends beyond the precise constitutional questions presented. But in a case such as this, it is the Justices’ reactions to these broader questions that tend to drive their doctrinal analysis, rather than the other way around.
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* Professor, Santa Clara University School of Law. J.D., 1994, Stanford University; B.A., 1990, Stanford University. I am grateful to the University of Richmond School of Law, and particularly Professor Kevin Walsh, for the opportunity to participate in the 2011 Allen Chair Health Care Symposium, and to David Ball, Deep Gulasekaram, David Hasen, Timothy Jost, Michelle Oberman, Ilya Shapiro, David Sloss, and Ilya Somin for their very helpful comments on earlier drafts. I owe thanks to Brandon Douglass and Jennifer McAllister for their terrific research assistance.
Elizabeth Weeks Leonard *
What is it about health reform—about the particular exercise of federal power to compel the purchase of health insurance by individuals—that has sparked such concerted objection from states? Congress has reached deeply into areas of traditional state authority on other occasions in recent memory, without similarly provoking a majority of states to file federal lawsuits or engage in a multi-front attack to dismantle a validly enacted federal statute. How has a federal law, which most clearly infringes on individual rather than states’ rights, become the rallying cry for a nationwide Tenth Amendment reinvigoration movement? In keeping with the 2011 Allen Chair Symposium’s “Everything But the Merits” theme, this essay considers states’ lawsuits not merely beyond the merits but even beyond the litigation itself and places the litigation strategy in the larger context of other forms of state resistance to implementation of the Patient Protection and Affordable Care Act (“ACA” or “Act”).
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* Associate Professor, University of Georgia School of Law. J.D., 1999, University of Georgia; B.A., 1993, Columbia University. I am grateful to Carl Tobias and Kevin Walsh for inviting me to the 2011 Allen Chair Symposium and all of the Symposium participants for a stimulating discussion.
Kevin C. Walsh *
Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act (“ACA” or “Act”)—a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.
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* Assistant Professor, University of Richmond School of Law. J.D., 2002, Harvard Law School; M.A., 1999, University of Notre Dame; A.B., 1998, Dartmouth College.
Stephen I. Vladeck *
Writing for the 1966 volume of the Supreme Court Review, Professor Alex Bickel was hardly bashful in his criticism of the Supreme Court’s disposition of three high-profile cases from the preceding Term, each of which had raised fundamental constitutional questions of first impression about the newly enacted Voting Rights Act of 1965. Although his objections to the Court’s decisions in Harper v. Virginia Board of Elections and Katzenbach v. Morgan went to the merits, his real frustration with Chief Justice Warren’s opinion for the Court in South Carolina v. Katzenbach, which upheld several of the Voting Rights Act’s central provisions as valid exercises of Congress’s power to enforce the Fifteenth Amendment, was that it reached the merits in the first place.
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* Professor of Law and Associate Dean for Scholarship, American University Washington College of Law. J.D., 2004, Yale Law School; B.A., 2001, Amherst College. My thanks to Kevin Walsh for inviting me to participate in the 2011 Allen Chair Symposium for which this essay was prepared, and to Aminah Qureshi and the staff of the University of Richmond Law Review for their patience. Although I co-authored the Brief of Amici Curiae Professors of Federal Jurisdiction in Support of Appellant in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011), which argued against Virginia’s standing to challenge the constitutionality of the ACA (and from which some of the arguments offered herein have been derived), the views expressed in this essay are mine alone.
Tobias A. Dorsey *
When I was asked to speak about severability at the 2011 Allen Chair Symposium, I wasn’t sure I should, or even that I could. But the more I thought about it the more I realized I might be a good person for the task. First of all, I am not a scholar. I am a practitioner. I spent ten years working for Congress in the nonpartisan Office of Legislative Counsel of the House of Representatives. That means I spent a lot of time working with policymakers in Congress, helping them think through their policies and turn them into written proposals. I have advised clients about severability hundreds of times.
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* Special Counsel of the United States Sentencing Commission and a former Assistant Counsel in the Office of the Legislative Counsel of the U.S. House of Representatives. J.D., 1993, UCLA School of Law; B.A., 1989, Cornell University. These remarks were originally presented as a speech at the 2011 Allen Chair Symposium—“Everything But the Merits” presented by the University of Richmond Law Review
Robert S. Claiborne
Virginia’s challenges to the Patient Protection and Affordable Care Act (“ACA”), via its minimum essential coverage provision, or individual mandate, have drawn both criticism and praise as modern invocations of nullification. The distinct doctrine of nullification entails a legal process exceeding that of a merely litigious challenge to federal law or a vocal protest from a state legislature. Its exercise by a state purportedly renders a targeted federal law unconstitutional and thus null, void, and of no effect within the respective state’s borders. At nullification’s core are the premises that the Supreme Court does not have final authority to interpret the Constitution in cases and controversies arising between a state and the federal government and that an individual state, as a party to the Constitution, has ultimate authority to interpret the compact as applied to constitutional disputes arising with the federal government.
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Robert J. Reinstein *
The Washington administration has attracted increased attention in the ongoing debate over the power of the President to determine and conduct the nation’s foreign policy. The actions of the first President are being seen as important precedents on the scope of executive power, much as the statutes of the first Congress are recognized as being important precedents on the scope of legislative power.
This article provides revisionist answers to three key questions concerning the Washington administration’s assumption of authority in foreign policy: What constitutional source of power did the administration actually rely upon? How did its jurisprudential understanding of the law of nations affect the exercise of executive power? And does the experience of the Washington administration demonstrate the limits of originalism as a constitutional methodology?
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* Clifford Scott Green Professor of Law, Temple University Beasley School of Law. J.D., 1968, Harvard University School of Law; B.S., 1965, Cornell University.
Richard Broughton *
Hardly anyone, it seems, really believes that the scope of federal criminal law is just about right. Though academics and commentators across the spectrum of law and politics rarely find general agreement when it comes to federal power, there actually appears to be relatively broad agreement these days that some things about federal criminal law are not quite right. In particular, the issue has brought together minds from both the political left and the political right, making criticism of federal criminal law one of the issues du jour among commentators struck by the marriage of these strange bedfellows. Indeed, although it is the conventional wisdom that conservatives have generally favored the government in criminal justice adjudication, it is the most conservative members of the Supreme Court who have emerged as prominent champions of structural (and even some rights-based) limits on federal criminal justice powers, often siding with criminal defendants. Whether the concern is “overfederalization” and the exercise of congressional power beyond constitutional limits, or the duplication of resources that occurs when state and federal crimes too often overlap, or the danger that people of dubious culpability will be ensnared in a vast web of obscure federal laws about which they had no reason to know, or the increasing severity of federal sentencing for crimes that cause comparatively little harm or that involve offenders who pose comparatively low risk to the community, thoughtful minds across the political spectrum are bothered by the sheer scope of the federal government’s power to prosecute and punish crimes, and the relative ease with which federal assertions of criminal law enforcement power occur.
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* Assistant Professor of Law, University of Detroit Mercy School of Law. LL.M., 2000, Georgetown University Law Center; J.D., 1999, Widener University Law School; B.A., 1995, Hampden-Sydney College
Danshera Cords *
The partisanship of the current political dialog coupled with the constant news cycle results in an increasingly rancorous discourse about government, law, and the judicial process. Judicial appointments have become increasingly politicized. This politicization places the judicial appointment process at the mercy of politics more than any other time in recent history. The appearance of an increasingly politicized judicial appointment process is troubling as the judicial branch of government is intended to remain above the political fray.
Court watchers note that increasingly bitter partisan battles make navigating the judicial appointment process ever more difficult. The Republicans and Democrats wage increasingly hostile battles along ideological lines to keep the judiciary free of judges whom the parties find objectionable for political and moral reasons. One can see the concern over ideology throughout the judicial appointment process—presidential nomination, Senate advice and consent, and confirmation. Fierce battles arise particularly when different parties control the Presidency and the Senate. The partisanship is not isolated to either branch. While Presidents seek to appoint judges who will support their philosophical approaches to governance, the party controlling the Senate seeks to limit the influence of the other party’s ideology in the judiciary. The tension between the parties manifests itself in slower appointments to the bench, regardless of which Senate committee investigates and oversees the advice and consent process.
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* Professor of Law, Albany Law School. LL.M., 2000, New York University School of Law; J.D., 1998, Seattle University School of Law; B.A., 1991, University of Washington.
