Constitutionality of Recent SCOTUS Decisions — DOMA and Voting Rights


Constitutionality of Recent SCOTUS Decisions — DOMA and Voting Rights

by Matthew Nelson

The Supreme Court has been getting a lot of attention lately. With the deluge of end-of-term decisions over, it seems everyone is taking turns surveying the damage. But while most commentators ask “helping-or-hurting” questions – How big of a setback was the Prop 8 ruling for marriage traditionalists? Did racism win the day at the University of Texas? – I want to draw attention to a different set of questions raised by two of the year’s biggest decisions. These decisions, on gay marriage and voting rights respectively, offer an excellent opportunity to revisit our government’s famed system of “checks and balances” and ask just what we expect the various branches to do to get along.

In United States v. Windsor, the Court struck down a provision of the Defense of Marriage Act (DOMA) that prevented even already-married same-sex couples from receiving the benefits of a federally acknowledged marriage. It did so because it found that the law violated the so-called “due process clause” of the Fifth Amendment. So far, so good – this much accords well with our ordinary conception of how the federal government works – the legislature enacts laws, and the judiciary reviews their constitutionality. But in order to get to a place where they could even rule on DOMA’s constitutionality, the Court first had to answer a strange procedural question – was there even a real case to decide?

The problem was that the two sides seemed to agree on the correct ruling. Both the plaintiff, Edith Windsor, and the defendant, the U.S. Government (as represented by its Executive Branch), agreed that the law was unconstitutional. Accordingly, Ms. Windsor ought to be entitled to a refund of more than $350,000 in taxes that she was forced to pay on the estate of her deceased spouse, Thea Spyer, because under DOMA her same-sex marriage did not qualify her for surviving-spouse tax exemption. This led Justice Scalia, in oral arguments, to ask why the case had made it to the Supreme Court at all. What made it different from a debt-related lawsuit where the debtor agrees he owes money but just refuses to pay? In that case, there is no case – the debtor owes the money, no questions asked.

But the Executive Branch disagreed…kind of. Although they refused to defend DOMA’s constitutionality, they insisted on enforcing it and requested that the Court continue with the case as if everything were normal. However, because the Executive refused to defend the law, the Bipartisan Legal Advisory Group from the House of Representatives had to step in instead. Their representative, Paul Clement, pointed out that this convoluted scheme had already led at the District Court level to “the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.” Justice Kennedy noted that that is enough to “give you intellectual whiplash.” Indeed.

From here things return back to normal. The Court decided to look past the legal acrobatics necessary to keep the case alive, and went on to strike down DOMA’s key provision. But let’s not follow them there. The behavior of the Executive Branch should give us pause. The Executive argued that it had a constitutional duty to uphold and enforce duly enacted laws, such as DOMA. On the other hand, it did not believe DOMA itself to be constitutional. What this leaves us with is a contradiction: a claimed constitutional duty to uphold an unconstitutional law.

This goes against not only logic, but also the intent of our “Founding Fathers” in drafting the Constitution. As Akhil Reed Amar notes in his detailed “biography” of the Constitution:

Accustomed as we are to seeing the judiciary – particularly, the Supreme Court – as the sole and unique interpreter of the Constitution, many modern Americans might bridle at the idea that the framers envisioned the president as America’s first magistrate, with important and independent authority to construe and defend the Constitution. Yet even Court-centered observers should recall that a president’s principled refusal to enforce a law that he in good faith and after careful consideration deemed unconstitutional could often be the vehicle for bringing an issue before the courts…Even if the case could otherwise reach the judiciary, a henchman president executing congressional orders that he believed unconstitutional would often be placing an expensive burden of initiating litigation upon an innocent private party rather than upon a powerful (and to the president’s mind, offending) legislature.

Readers sympathetic to President Obama might balk at the idea of calling him a “henchman president.” After all, he and Congress are not always on the best of terms. We can even come up with a number of sound political reasons why he might have done as he did. Perhaps further antagonizing Congress would have cost him more political capital than it was worth, especially given that he anticipated that the Court would set things straight. But this strategy ought at least to give us pause. Do we want a president who bends over backwards to have his cake and eat it too, even at the possible expense of basic constitutional justice? On the other hand, we may not want the alternative renegade president who loses his legitimacy in the eyes of Congress.

The question may not be as simple, moreover, as whether or not the president lacks “the courage of his convictions,” as the Chief Justice put it. We might understand Obama’s actions here as a good-faith attempt to respect the will of the people. Obama is but one man, while the House of Representatives, the Senate, and the (Democrat) president who signed DOMA into law were many. To refuse to enforce a duly enacted law might seem hubristic, not only to Obama, but to the American electorate as a whole. And here is where we must face the difficult questions entailed in the separations of powers. If we laud Obama’s support of gay rights, must we also laud his bow to Congress? Just how independent do we want the Executive and the Legislative Branches to be?

Thankfully, we don’t have to (or perhaps, frustratingly we don’t get to) approach these questions in the isolation of a single case. Another major ruling, Shelby County v. Holder, also raises questions about deference and political strategizing between branches. In Shelby, the Court struck down Section 4 of the Voting Rights Act, which defined certain districts that would be required to get approval from the federal government before making any changes to voting procedures to make sure the changes were not racist (either in intention or in effect). Only the formula for determining which districts were covered was struck down, the actual pre-approval process (Section 5) was left unchallenged. The problem, as the Court saw it, was that the formula was outdated. It did not include states or counties based on the discrimination they were guilty of now, but on discrimination at play in 1964. According to the majority’s mantra, the law “imposes current burdens and must be justified by current needs.”

Many have noted that this effectively cuts the legs out from under Section 5. An op-ed for The New York Times nicely summarizes one common understanding of the Court’s ruling: “The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past.” That the ruling deals a major, perhaps mortal, blow to Section 5 is obvious and not very controversial. What is striking is that everyone seems to agree that this fact is relevant to the ruling – not just that the Court knew it, but that it should have acted differently for that reason.

Let’s consider the implications of this carefully. In effect, such a stance suggests that not only should the Court consider each part of a law separately to determine its validity, it should also take into account likely political fallout in Congress of the decision. If it did so in this case, it would see that Congress would likely never agree on a new formula for Section 4. Accordingly, it should have decided that the need for an effective Section 5 was great enough that Section 4 should not be examined at all, because to do so would jeopardize Section 5. I don’t want to suggest that this reasoning is necessarily wrong. I only want to emphasize the extent of its implications and just how far it deviates from the normal picture of an autonomous Court that coolly and judiciously picks apart laws to determine where, if at all, they fail a constitutional test.

Of course, it is possible that Section 4 is constitutional on its own grounds, but most critical attention has conspicuously avoided that question and relied on a logic similar to the one above (an exceptional case, that perhaps comes close to establishing Section 4’s constitutionality, but tellingly fails to even mention it, can be found here). Let us also bear in mind that many who hold this position, including Justice Ginsburg in her dissenting opinion, are at pains to mention just how close to unanimity Congress came in 2006 when renewing the Voting Rights Act, and how diligently they pursued renewal. This deference to Congressional consensus is tricky, because it leads in the opposite ideological direction in the DOMA case.

This is why it is important that we see these cases as more than just isolated moments that help or hurt our favorite causes. They are also part of the much larger, on-going processes of Supreme Court jurisprudence and federal governance. There is a wide variety of stances we can take – from three branches with blinders on, each ignoring the other, to everyone bowing to Congress unless their job description explicitly tells them to do otherwise. The proper solution is probably somewhere in the middle, but it is worth our discussing how we should figure out where.


Matthew Nelson is a PhD student in Comparative Literature at the University of Illinois. His interests range from Modern Sanskrit to Martin Heidegger, but his dissertation focuses on translation as a form of cultural memory in contemporary India.

Incomplete Thoughts on Wisconsin and Political Enthusiasm

Incomplete Thoughts on Wisconsin and Political Enthusiasm

by Okla Elliott (with photos by Jenna Bowen)

“In Kant’s philosophy of history, crisis or tension is necessary for human progress. He is pessimistic about individual success[es] but confident about mankind.” —Sidney Axinn, “Kant, Authority, and the French Revolution”

Much was made in leftist circles of the fact that an Egyptian protestor purchased a pizza online to help feed the protestors in Wisconsin—and rightly so; it was a touching and telling moment. The international solidarity and the shared humanity this gesture showed are truly inspiring. But aside from the feel-good aspect, not much else has been discussed about it, which is in fact indicative of a larger gap in our discussion of recent world events. There have been some minor gestures at connecting the events in Tunisia, Egypt, Libya, Greece, France, and Wisconsin, but no serious theoretical investigation has yet been undertaken. This is not entirely a bad thing, since there are moments when action is called for, not theorizing. That said, however, mass movements that do not have a (self-)critical or theoretical component have a habit of either failing or turning into things almost as bad as what they sought to depose. READ MORE

Health Care Reform

Eight Single Payer activists were arrested in May for attempting to tell the truth about health care reform at the Senate Finance Committee meeting.

Corporate Dems, “Single Payer” Health Care, and Two Party System Failure–All Made Real Simple

–Kara Allison

It is only natural that so many people are talking about health care and health care reform these days. I cannot express how excited I am to see the grassroots effort that many of my friends and colleagues have participated in, finally get the national attention it deserves.

But I have to be honest here…

Most of the conversations I hear swirling in and out of coffee shop doors, hovering outside entrances of local pubs, and even those that have boldly entered the confining walls of academia are incredibly misinformed. In these conversations I hear people throwing around words like “single payer” and “universal” interchangeably… Using words they don’t even know the meaning of, like they coined the words themselves.

At a social networking website recently, I noted one person admitting in a comment thread that he knew nothing about Obama’s proposed health care plan, but acknowledging, in the same breath, that reform is needed.  This person took the “I trust Obama, so just pass the bill through” stance.  I navigated away from this site only to return to someone else grumbling about how he shouldn’t have to pay another dime to support the “deadbeat Americans who are too lazy too work”.

I looked down at my check stub for a moment and did some quick math.  Then I decided to visit the World Health Organization’s (WHO) website to look at their health care rankings. France currently holds the number 1 ranking for the best health care system in the world. Their citizens pay about 10% of their income in taxes.  This includes militia, health care, transportation, etc. I looked down at my check stub again, noting duly, that I pay roughly 23% more in taxes than the average French citizen, work more hours a week on average, and if I get sick, well… I’m fucked.

This past week the House Democrats presented their health care reform bill.  While many people believe that a step in any direction, is a step forward regarding an issue that has been immobile for so long, Obama’s plan—even if it passes—it destined to fail.

Single Payer Action’s Russell Mokhiber, in an email earlier this week, tells us why:

    Because it keeps the insurance industry in the game.
    It will cost a trillion dollars over ten years.
    It won’t cover tens of millions of Americans.
    It won’t control costs.
    And it’s a bailout for the insurance industry.
    Only a single payer — everybody in, nobody out — national health insurance bill (co-sponsored by 85 members of the House — most recently by Congressman John Murtha (D-Pennsylvania) will hit the grand slam — cover everyone, save money, control costs, and fix a broken health care system.
    But what struck me yesterday while watching the Democrats was the depth of their deception.
    There was Speaker Nancy Pelosi and Majority Leader Steny Hoyer.
    Both heaping praise upon and honoring Congressman John Dingell (D-Michigan).
    And his father — John Dingell, Sr.
    John Dingell, Sr. represented Michigan’s 15th district for 22 years until his death in 1955.
    John Dingell, Jr. has represented the district ever since.
    But not once during the press conference did anyone mention that it was John Dingell, Sr. who first introduced a single payer bill in Congress in 1943.
    And it was Democratic leaders in Congress and President Barack Obama who took single payer off the table.
    The Republicans will tell you straight up — we’re for big business.
    Single payer is socialism.
    And that’s why we’re against single payer.
    When the Democrats are out of power, they will tell you what you want to hear — we’re for single payer.
    They then take power, and all of a sudden, they are against single payer.
    Take Henry Waxman (D-California) as a case in point.
    For years, Henry Waxman was a co-sponsor of HR 676 — the single payer bill in the House.
    Until earlier this year, when he became part of the leadership in the House.
    Then Waxman took his name off the single payer bill.
    In 2003, Barack Obama said he was for single payer.
    Obama said at the time that we would have single payer in America only when the Democrats took back the White House and Congress.
    Last year, Obama and the Democrats took back the White House and Congress.
    And now President Obama is opposed to single payer.
    The reality is that there is only one solution to the health care crisis — get the insurance companies out of health care.
    The Democrats are now engaged in what Dr. Marcia Angell — former editor of the New England Journal of Medicine — calls “the futility of piecemeal tinkering.”
    Angell and a majority of doctors in the United States — and a majority of the American people — believe that only a major single payer overhaul will get the job done.
    That’s why we’re challenging the Democrats around the country.
    And we will continue to challenge them, and the health insurance industry to whom they are beholden, until single payer becomes a reality in America.

Many health care reform advocates warn that we need to press for “single” payer” and not the “public option” for many reasons: the public option is NOT single payer, it does not confer the benefits of single payer, and is too expensive. The inevitable failure that will result from the “system” including the public option but which also preserves the insurance companies, will only serve to discredit the idea of single payer and set back present and future efforts.

So what’s the solution?

I believe Dennis Kucinich is headed in the right direction with HR676, which is explained in the following:

    Healthcare: Change the Debate
    Support a Real Public Option
    In mid-May, in an effort to reach consensus, President Obama secured a deal with the health insurance companies to trim 1.5% of their costs each year for ten years saving a total of $2 trillion dollars, which would be reprogrammed into healthcare. Just two days after the announcement at the White House the insurance companies reneged on the deal which was designed to protect and increase their revenue at least 35%
    The insurance companies reneged on the deal because they refuse any restraint on increasing premiums, copays and deductibles – core to their profits. No wonder a recent USA Today poll found that only four percent of Americans trust insurance companies. This is within the margin of error, which means it is possible that NO ONE TRUSTS insurance companies.
    Then why does Congress trust the insurance companies? Yesterday HR 3200 “America’s Affordable Health Choices Act,” a 1000 page bill was delivered to members. The title of the bill raises a question: “Affordable” for whom?.
    Of $2.4 trillion spent annually for health care in America, fully $800 billion goes for the activities of the for-profit insurer-based system. This means one of every three health care dollars is siphoned off for corporate profits, stock options, executive salaries, advertising, marketing and the cost of paper work, (which can be anywhere between 15 – 35% in the private sector as compared to Medicare, the single payer plan which has only 3% administrative costs).
    50 million Americans are uninsured and another 50 million are under insured while for-profit insurance companies divert precious health care dollars to non-health care purposes. Eliminate the for-profit health care system and its extraordinary overhead, put the money into healthcare and everyone will be covered, everyone will be able to afford health care.
    Today three committees will begin marking up and amending HR3200. In this, one of the most momentous public policy debates in the past 70 years, single payer, the only viable “public option,” the one that makes sound business sense, controls costs and covers everyone was taken off the table.
    In contrast to HR3200 … HR676 calls for a universal single-payer health care system in the United States, Medicare for All. It has over 85 co-sponsors in Congress with the support of millions of Americans and countless physicians and nurses. How does HR-676 control costs and cover everyone? It cuts out the for-profit middle men and delivers care directly to consumers and Medicare acts as the single payer of bills. It also recognizes that under the current system for-profit insurance companies make money NOT providing health care.
    This week is the time to break the hold which the insurance companies have on our political process. Tell Congress to stand up to the insurance companies. Ask members to sign on to the only real public option, HR 676, a single-payer healthcare system.
    Hundreds of local labor unions, thousands of physicians and millions of Americans are standing behind us. With a draft of HR3200 now circulating, It is up to each and every one of us to organize and rally for the cause of single-payer healthcare. Change the debate. Now is the time.

There are approximately 200 countries that exist on our planet and each of these countries has devised its own plan to meet the health care needs of its citizens.  When studying collectively the health care systems of the world, one will note that four patterns tend to emerge.  Hence, health care systems can be divided, for the most part, into four basic models.  A brief outline of  the four health care models can be found at :

The United States is unlike every other country because it maintains so many separate systems for separate classes of people. All the other countries have settled on one model for everybody. This is much simpler than the U.S. system; it’s fairer and cheaper, too. The time for health care  reform in the United States has finally come.  It is imperative that we educate ourselves and press our government to make the right decision.  A weak foundation now, will be the cause of failure in the future.  How much more failure can we afford?

Kara Allison is an academic librarian, freelance writer, and activist living in Cincinnati, Ohio.