In King v. Burwell, the Supreme Court surprised many Court watchers, ruling six to three that the Affordable Care Act (ACA) permits individuals who buy health insurance on the federal exchange to receive taxpayer subsidies. The decision represents a decisive victory for ACA supporters, and an equally decisive loss for the rule of law. With King, the Supreme Court has signaled (again) that it is willing to “save” important laws by rewriting them, thus behaving as an all-powerful, unelected, politically insulated, unconstitutional Council of Revision.

King is the second time the Court has rescued the ACA. The first time, NFIB v. Sebelius (2012), involved a frontal assault on the constitutionality of the Act’s individual mandate and its mandatory Medicaid expansion. The five-Justice NFIB majority, led by Chief Justice John Roberts, saved the individual mandate by rewriting the word “penalty” to mean “tax,” and disregarding extensive legislative history indicating that Congress had intended to use its commerce power, not its taxing power.

The NFIB majority also ruled that the ACA’s mandatory Medicaid expansion violated federalism by unconstitutionally coercing states. Because the Medicaid expansion was integral to making the ACA “work,” this constitutional infirmity should have rendered the entire ACA unconstitutional pursuant to a severability analysis. But as with the individual mandate, the NFIB majority opted instead to save the ACA, transforming the Medicaid expansion from mandatory to “optional.” In the words of the four NFIB dissenters, the majority “save[d] a statute Congress did not write.”

To paraphrase Yogi Berra, King is déjà vu all over again. Once again, Chief Justice Roberts has penned a majority opinion rewriting the ACA, but with one important difference: This time, the Court’s rewrite does not even further the policy of “saving” the ACA. If the Court had ruled the other way, the ACA, while not performing well, would have remained largely intact, albeit in a less draconian form that was more respectful of states and individual liberty.
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By David B. Rivkin, Jr., Mark DeLaquil, Andrew Grossman, June 15 2015

Note from the Editor:

This article discusses the Environmental Protection Agency’s Clean Power Plan under the Clean Air Act. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the author. The Federalist Society seeks to foster further discussion and debate about the issues involved. To this end, we offer links to other perspectives on the subject, and we invite responses from our audience. To join the debate, please e-mail us at info@fed-soc.org.

Congress’s statement of policy in the Clean Air Act that “air pollution control at its source is the primary responsibility of States and local governments” is not merely hortatory.1 It reflects both the practical reality of and constitutional limitations on federal regulation of air quality. The practical reality is that the federal government relies on the states both for the detailed policymaking necessary to achieve national goals on a state-by-state basis and for the implementation and enforcement of pollution-control programs with respect to particular sources. But, no matter its reliance, the federal government is forbidden from commandeering the states or their officials to carry out federal law, from coercing them to do so, and from invading the states’ own powers. The Clean Air Act resolves this tension through a system of “cooperative federalism” that gives states the opportunity to regulate in accordance with federal goals and provides for direct federal regulation as a backstop should they fail to do so. This accommodation allows the federal government to enlist the states’ assistance in achieving federal goals without exceeding its authority under the Constitution.

The Environmental Protection Agency’s “Clean Power Plan” (the “Proposed Rule”) abandons that careful accommodation and, in so doing, violates the Tenth Amendment and principles of federalism. The Proposed Rule requires each state to submit a plan to cut carbon-dioxide emissions by a nationwide average of 30 percent by 2030. Although ostensibly directed at emissions from fossil-fuel-fired power plants, the Proposed Rule sets targets for individual states that incorporate “beyond-the-fenceline” cuts to be achieved by increasing reliance on natural gas generation, adopting zero-emissions generation such as wind and solar, and reducing electricity demand. The goal is to phase out coal-fired power plants, which currently account for nearly 40 percent of electricity generation.

In the service of achieving EPA’s policy objectives, the Proposed Rule forces each state to overhaul its energy market. Just to keep the lights on, states will have to dramatically change their energy mix, to account for the loss of coal-fired generating capacity, and to rework their regulation of energy producers, power dispatch, and transmission. This will require changes to states’ legal and regulatory structures, as well as numerous regulatory actions directed at their own citizens—energy producers and consumers alike. In order to accomplish these objectives, even a state that declines to implement the Clean Power Plan will have to employ EPA’s “building blocks” to prevent the Plan from wrecking the state’s energy economy. And states that refuse to accede to EPA’s demand to implement this new program face the specter of financial sanctions. In short, EPA’s Proposed Rule forces the states to act to carry out federal policy. It is a gun to the head of the states: “Your sovereignty or your economy” is EPA’s ultimate demand.
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By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

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By DAVID B. RIVKIN JR. And ANDREW GROSSMAN, May 21, 2015

We are free to tell you that a clinical trial shows the drug Vascepa to be an effective treatment for persistently high triglyceride levels. But should the drug’s manufacturer, Amarin, tell you or your doctor the same thing, the company would face criminal prosecution and civil liability. Therein lies a First Amendment anomaly, one that may finally be resolved by a lawsuit that Amarin filed earlier this month against the Food and Drug Administration.

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions.

But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses.

But Amarin can’t say anything about the Vascepa trial. The drug is approved only as a treatment for “very high” triglyceride levels, not those that are merely persistently high. As a result, doctors and their patients are being kept in the dark about a treatment that, for some patients, has fewer side effects than other drugs.

The FDA claims its speech ban is a necessary part of its drug-approval process, which requires manufacturers to demonstrate efficacy for each intended use. The agency aggressively investigates and the government regularly prosecutes pharmaceutical companies and their representatives that promote off-label uses of their drugs. Yet once a drug is approved, doctors can prescribe it for any use—and the FDA recognizes, in its regulatory guidance—that such uses are essential to effectively translate medical research into improved health outcomes.

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By David B. Rivkin Jr. and Andrew M. Grossman — Sunday, April 19, 2015

First Amendment lawyers always get asked the same question: Is he really allowed to say that?

The “he,” inevitably, is some television pundit, newspaper columnist or blogger. And the “that” is a stream of invective. A pointed example is economist Paul Krugman’s characterization of Rep. Paul Ryan’s 2012 budget proposal: “The most fraudulent budget in American history. And when I say fraudulent, I mean just that.”

So if he meant “just that,” the question goes, isn’t that libel, and why isn’t Mr. Ryan suing him for damages?

And from time to time, we’ve heard the same question raised about one of our own cases, climate scientist Michael Mann’s lawsuit against detractors who harshly criticized his “hockey stick” research. We represent two of the defendants, the Competitive Enterprise Institute and its adjunct fellow, Rand Simberg. They called Mr. Mann’s work “intellectually bogus” and biased “data manipulation” done “in the service of politicized science.”

So is it libel? Some may respond with a smirk that truth is an absolute defense, but the answer is actually more basic: There’s nothing to be proven true or false.

Libel law is subject to the First Amendment. Its guarantee of freedom of speech wouldn’t be worth much if the government could authorize private citizens to sue one another over their views. At a minimum, a challenged statement must contain (in the Supreme Court’s formulation) a “provably false factual connotation.”

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By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY, April 9, 2015 6:53 p.m. ET

Debates about the Indiana and Arkansas Religious Freedom Restoration Acts, or RFRAs, have regrettably pitted religious freedom against gay rights. Critics claim the laws provide a license to discriminate against lesbian, gay, bisexual or transgender (LGBT) individuals. But this criticism shouldn’t be aimed at the religious-freedom laws, which don’t license discrimination based on sexual orientation or anything else.

Those wanting to advance LGBT rights should focus on enacting laws that bar discrimination. If there is a legal “license” to discriminate based on sexual orientation, it is because few jurisdictions today provide protection against such discrimination, or because the Constitution may immunize such behavior in certain circumstances.

There is no federal law prohibiting private discrimination based on sexual orientation. An executive order by President Obama in 2014 bans such discrimination only for federal workers and contractors. About 20 states and some municipalities prohibit sexual-orientation discrimination in workplaces and public accommodations. But the majority of states still don’t proscribe discrimination based on sexual orientation, though discrimination based on race, gender, ethnicity or national origin is banned.

The federal Religious Freedom Restoration Act was passed by overwhelming bipartisan majorities and signed by President Clinton in 1993. It represented a backlash against the Supreme Court’s 1990 decision in Employment Division v. Smith. That decision held that the First Amendment’s Free Exercise Clause doesn’t allow a religious exemption from laws of general applicability—e.g., compulsory military service, or prohibitions on drug use or animal cruelty—even if those laws substantially burden religious exercise.

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