Thursday, March 22, 2012
Supreme Court's Ruling in Coleman v. Maryland Court of Appeals Illustrates Ideological Divide over Congress’ Power to Enforce the Fourteenth Amendment
On Tuesday, a sharply fractured Supreme Court issued its ruling in Coleman v. Maryland Court of Appeals, holding that individuals may not sue a state government employer for money damages for violating the self-care provision of the Family and Medical Leave Act. In a 5-4 ruling – the first opinion on the scope of Congress’ power to enforce the Fourteenth Amendment since John Roberts became Chief Justice – the conservatives on the Roberts Court joined in holding that the FMLA’s self-care provision was not a valid exercise of Congress’ power to enforce the Fourteenth Amendment, distinguishing the Court’s 2003 decision in Nevada Dep’t of Human Resources v. Hibbs, which had permitted suits against the states under the family-care provision of the FMLA. In an opinion striking in its willingness to second-guess Congress’ exercise of its power to enforce the Fourteenth Amendment’s command of equality for all persons, Chief Justice Roberts and Justice Alito joined the Hibbs dissenters in holding that Congress lacked the power to subject states to suits for money damages for violating the FMLA’s provision giving individuals the right to take medical leave to care for a pregnancy, illness, or other medical condition.
"who did not want to leave the judiciary with the sole responsibility for protecting constitutional rights"
The approach of the majority doesn't require that; it narrows the reach of let's say criminal law or civil remedies passed by Congress and enforced by the executive, it doesn't take them all away.
Given recent posts, I wonder if a 14A argument can be made for the PPACA -- equality in health care etc. or some national privilege or immunity of health care. It wouldn't necessarily be a right enforced in court w/o congressional legislation, but with it, it could be tied to that. I think Judge (Prof.) Liu argued for something of the sort for education.
Regarding Joe's second comment, Rebecca E. Zietlow's "Democratic Constitutionalism and the Affordable Care Act" aims in that direction. A link to her article is provided at Prof. Zietlow's earlier post on this Blog; it is available at SSRN:
At page 36 of this 40 page article:
"No litigant has raised the issue of whether the Act protects any rights, including a right to health care, though Judge Jeff Sutton noted the right in passing in his important concurrence to the Sixth Circuit opinion upholding the Act. Because of the political salience of the issue, and because of the conflicting rulings in the lower courts, commentators predict that the United States Supreme Court will eventually determine the constitutionality of the ACA. Unless the government changes its tactics, however, it is unlikely that the Court will consider whether the ACA can be justified as a statute protecting a right to health care. This is an unfortunate oversight."
At page 38, there is an interesting discussion of an amicus brief of the National Women's Law Center asserting a right to health care argument making " ... the intriguing claim that the ACA is analogous to the Civil Rights Act of 1964, which was unanimously upheld by the Supreme Court, because the 1964 Act also regulated non-participation in the market--the refusal of businesses to serve African Americans. While the NWLC brief does not claim that the ACA protects a fundamental right to health care, it does frame the ACA as a civil rights measure, taking the debate beyond the dry legalese of the Commerce Clause and revitalizing the rights-based claims of the popular and democratic constitutionalism that led to the passage of the Act."
“A New Birth of Freedom” by Charles L. Black, Jr. is an excellent little volume and part of its argument for 9A/DOI/P&I rights is an affirmative right to certain things necessary for the "pursuit of happiness."
Such affirmative benefits would by necessity be legislative in nature, but the fact something is in part a "political question" does not take away certain obligations from political actors.
Given the nature of the matter, including a national health industry and federal funding of Medicare etc., health care would be a national right, more so than education, though even there, people like George Bush Jr. accept a role for the national government, including by tax and spending, in that area.
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