Civil and Human Rights

Will Populist Backlash Stand Up in Court?


WASHINGTON (Aug. 4) — Voters in Missouri show Congress what they think of a federal mandate to purchase health insurance. Lawmakers in Arizona take immigration enforcement into their own hands. And senators in Washington talk about amending the U.S. Constitution to block children born to those here illegally from automatic citizenship.

“We’re looking at the greatest showdown on states’ rights that we’ve had in a couple of generations,” said Richard Reuben, a University of Missouri law professor. “This is a historic time.”

Republicans have issued a tea party-friendly Contract From America based on “individual liberty, limited government, and economic freedom.” Democrats have countered with a parody whose No. 1 priority is to repeal health insurance reform, their No. 1 achievement.

Darrell West, director of governance studies at the Brookings Institution, said the current revolt encompasses the tea party but is broader than that. He sees the prevailing public mood as the latest in a series of American populist movements. But unlike, say, the prairie populism of the 1890s that gave rise to the progressive movement, today there are more ways to express discontent, whether at the ballot box or on the Internet.

This time the growing number of lawsuits, ballot initiatives and legislation is part of a grassroots conservative movement that disapproves of the liberal political establishment in Washington. Said Eugene Volokh, a UCLA law professor and founder of The Volokh Conspiracy blog: “They are trying to have their voice heard — to mixed results.”

Indeed, despite all the Sturm und Drang in recent weeks, will any of the countermeasures stand up in court — either the judicial kind or the one of public opinion? Take a look:

Health Care Reform

Missouri voters became the first to opt out of a key provision in President Barack Obama’s health care reform law, the federal mandate to purchase health insurance. Proposition C passed overwhelmingly in the first ballot test of the new law. Arizona, Florida and Oklahoma will vote on the same issue in November.

“The people of Missouri sent a clear message to the liberal establishment in Washington,” said Michael Needham of the conservative group Heritage Action. “The federal government’s power is not limitless. It cannot compel individuals to buy a product or service. It is time our representatives in Washington read and understood our Constitution.”

Yet the requirement to buy health insurance doesn’t kick in until 2014. By that time federal courts will have likely weighed in and public opinion, already warming to health reform, may be different.

“If federal courts decide it is unconstitutional, then laws like this one will be superfluous. It has no legal consequences. It’s symbolic,” said Simon Lazarus of the National Senior Citizens Law Center and the author of a paper outlining why the health reform law is constitutional. Noting the mostly Republican primary voters in the low-turnout election, he concluded it was “like a straw poll of Republicans.”

Conservatives are divided over whether the measure will pass constitutional muster.

“It will be struck down because federal law trumps state law,” said Curt Levey of the conservative Committee for Justice. He is among many legal scholars citing the Supremacy Clause as the main impediment to the Missouri ballot measure.

Randy Barnett, a conservative law professor at Georgetown University, isn’t so sure. Basing his opinion on a different part of the Constitution, he said the health insurance mandate is “of questionable constitutionality,” adding that “never before has the Commerce Clause been used to mandate an economic relationship with a private company.”

On another front, a federal judge in Virginia this week allowed the state’s challenge to the health care law to move ahead. The procedural decision leaves for another day the question of whether a new Virginia statute nullifying the federal health insurance mandate will stand. But the ruling was greeted as a victory by other states that are challenging the law’s constitutionality.

The current battles aren’t all that different from when New Englanders wanted to secede over trade embargoes during the War of 1812 and when Southerners used the “nullification” crisis over tariffs that led to secession and the Civil War, said John Vile, a constitutional law expert and legal historian at Middle Tennessee State University. All involved a demands for states’ rights.

“Movements like today’s often center around perceived economic injustices,” Vile said. “The current state of the economy is undoubtedly exaggerating current anti-fed sentiments.”

Until the 1930s, he noted, “it was fairly common for Supreme Court decisions to strike down national economic regulations up through the New Deal on the basis of the 10th Amendment. The Supreme Court largely abandoned this position in the ‘switch in time that saved nine’ ” decision that began the justices’ deference for Congress exerting broad federal powers.


A federal judge blocked the most controversial parts of Arizona’s new immigration law last week and the case won’t go before an appeals court until November.

While there is broad public support for Arizona’s method of cracking down on illegal immigrants, “ultimately this state law may be struck down because it is pre-empted by federal law,” Volokh said.

That doesn’t mean, he said, that the effort will be for naught. “This is going to be a political victory for conservatives. … The political message is, ‘You in Washington, the Democrats, are out of touch. If you want to keep your job, you’d better move a little bit to the right.’ “

Soon after the Arizona decision, talk about “birthright citizenship” heated up. Several Republican senators called for a review of the 14th Amendment, saying it was time to repeal or amend it in order to prohibit children born to illegal immigrants from becoming automatic citizens.

“The question is, if both parents are here illegally, should there be a reward for their illegal behavior?” asked Sen. Jon Kyl of Arizona. Sen. Lindsey Graham of South Carolina accused undocumented immigrant women of crossing the border and going to emergency rooms to “drop and leave” so their children would be automatic citizens.

Unlike the health insurance mandate, Barnett said, there is a “very strong precedent for birthright citizenship,” which was added to the Constitution after the Civil War to reverse the Supreme Court’s Dred Scott decision in 1857, which declared blacks were not citizens. In 1898, the high court ruled a child whose parents were of Chinese descent — who at the time were permanently barred by law from becoming naturalized — was a U.S. citizen by virtue of the 14th Amendment.

“Those who want to repeal the 14th Amendment’s guarantee of equal citizenship threaten core constitutional values and ignore the reasons why the framers of the amendment enshrined birthright citizenship in the Constitution in the first place,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center. “Never before have We the People amended our Constitution to make it less egalitarian.”

Vile said this isn’t the first time members of Congress have proposed narrowing the 14th Amendment. In 1920, Sen. James Phelan, a California Democrat, proposed limiting birthright citizenship to whites, blacks and Native Americans but excluding Asians.

“It is far more than a day late and a dollar short to argue that the 14th Amendment doesn’t mean what it says, and I would hope that we would think very deeply indeed about repealing an amendment that itself helped to repudiate one of the greatest blights on our history,” Vile said.

Amending the Constitution is difficult — it’s only been done 27 times in U.S. history. But that isn’t likely to stop opponents of the current administration from trying, either on the federal level or in their state capitals.

“Many Republicans believe that too much power has gone to D.C., and they are looking for a way to roll it back,” said political analyst Stuart Rothenberg. “One way, of course, is to empower — or recognize the authority of states — in some areas. Ultimately, the courts may have to revisit this much larger constitutional question.”


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