ACSBlog

By Simon Lazarus, Senior Counsel at Constitutional Accountability Center, frequent contributor to ACSblog, participant in ACS programs, and author of two ACS Issue Briefs on the legal challenges to the Affordable Care Act. Those Issue Briefs are available here and here.

*This piece is cross-posted on Constitutional Accountability Center's blog. 

Media battalions daily eye-ball every spike and dip in the Affordable Care Act’s implementation odyssey. On May 14, however, nearly to a person, they passed up a noteworthy event: a Fourth Circuit Court of Appeals hearing in Richmond, Virginia, involving one of a phalanx of Koch-backed lawsuits, that could, if successful, in the exuberant vernacular of columnist George Will, “blow [the ACA] to smithereens.” Much has been written about these cases, by ourselves and others, since conservative uber-litigator Michael Carvin filed in the District Court for the District of Columbia a complaint identical to the (subsequent) one at issue in the recent Fourth Circuit appeal. (Two other similar challenges are percolating in Federal district (trial) courts in Oklahoma and Indiana.) But, unnoticed by the press, in this recent hearing, high-voltage verbal duels broke new ground.

Visibly animated, two of the three judges on the Fourth Circuit panel not only skewered the legal basis for the lawsuit—as had the two federal trial judges who earlier this year dismissed the claim (in the case now before the Fourth Circuit appeals court and the earlier-filed D.C. case). They questioned, as a matter of political and social injustice, Carvin and his backers’ desperation attempt to upend the ACA. In particular, Judge Andre Davis fired off one of the most telling sound-bites yet articulated by the law’s defenders over the course of this litigation. “You are asking us,” Judge Davis capped off an especially testy exchange near the end of the session, “to kick millions of Americans off health insurance, just to save four people [Carvin’s four individual plaintiffs] a few dollars.”  Davis had earlier foreshadowed that zinger, interrupting Carvin soon after he launched his argument, to chide him for bringing his case on behalf of four lone individuals instead of as a class action on behalf of all similarly reluctant premium assistance beneficiaries; the judge suggested that in fact Carvin could never assemble such a broad class: “No one wants what you want,” he scolded.

by Victor Williams, an attorney in Washington D.C. and clinical assistant professor at Catholic University of America, Columbus School of Law. Williams founded the American Institute for Disruptive Innovation in Law and Politics -- DistruptiveJustice.org.

Partisans have purposely pushed our nation to the brink of fiscal default three times since 2011.  Each time, the Treasury Secretary warned Congress, bondholders, and the public that a “catastrophic” default was imminent. Credit markets shudder, financial houses take multi-million dollar risk precautions, and rating agencies balk. At the twelfth hour, partisans have granted a stay, but only temporary one. The current suspension expires on March 15, 2015 – thus the next battle is strategically scheduled  after expected GOP midterm victories. Beware the Ides of March. But how is Brown v. Board relevant to a debt limit disaster? 

Facial Violations of the Fourteenth Amendment

In Brown v. Board of Education, the Supreme Court struck-down segregation legislation as facially violating the Fourteenth Amendment’s Equal Protection Clause. In May 1954, Chief Justice Earl Warren wrote for the unanimous Court that separate educational facilities were “inherently unequal.” The violation was so patent that “any discussion whether such segregation” was a factual violation of due process was “unnecessary.” As Harvard Law’s Richard Fallon notes in Fact and Fiction About Facial Challenges, Brown is a classic example of the judiciary’s assessing the constitutionality of legislation on its face, “not as-applied.”  

Similarly, the debt limit statute facially and inherently contravenes a fundamental provision of the very same Fourteenth Amendment. Section Four guarantees not only that public debt will always remain valid, but also that the “validity” of such obligations will never be “questioned.”  A centerpiece of the three Civil War Amendments, the absolutist prohibition against debt questioning joins other post- bellum proscriptions against slavery, unequal protection of the law, due process violations, and racial voting barriers.