There’s been lots of talk about how the Supreme Court’s landmark decision to uphold the health care law could affect the federal Medicaid program and President Obama’s political standing. But days after the historic ruling, lawyers say they’re still teasing out the consequences for other key areas of the law — including civil rights.
At first blush, it might seem odd that a case about the Affordable Care Act would send civil rights experts scrambling back to their law books.
But the Supreme Court’s ruling in the health care case involves the Commerce Clause and Congress’ spending power, which happen to be the backbone of most civil rights legislation.
“The Commerce Clause and the impact on interstate commerce of various types of discrimination has traditionally formed the basis for many civil rights statutes,” says Washington lawyer Robert Driscoll, who worked on civil rights in the George W. Bush Justice Department. “And unlike the health care case, civil rights statutes generally would not have a taxing provision which could provide the kind of save of the statute that happened for the health care case.”
Concern About Coercion
In last week’s health care decision, five justices, including Chief Justice John Roberts, put important limits on the Commerce Clause for the first time in decades, raising questions about the implications for federal civil rights legislation.
But it’s the second area of the ruling — the one that talks about new limits to the Spending Clause — that’s really got the attention of civil rights lawyers.
“A lot of civil rights enforcement is done through federal spending statutes, and the Spending Clause is as important to civil rights enforcement, frankly, as the Equal Protection Clause, or anything else the federal government has,” Driscoll says.
A decade ago, several states sued after the federal government told states if they accepted certain federal funds through the Rehabilitation Act and civil rights statutes such as Title IX, designed to encourage women’s participation in educational settings, the states had to agree not to discriminate on the basis of disability, race or gender.
Kevin Russell defended those conditions as a lawyer for the Justice Department back then. Now, he thinks states are likely to revive those lawsuits, armed with the Supreme Court’s reasoning in the health care case.
Seven justices found that a threat to withdraw all federal Medicaid funds for states that reject the Affordable Care Act amounted to unlawful coercion, leaving little information about where to draw the line moving forward.
“Because the Supreme Court didn’t give much guidance about what the test is for unconstitutional coercion, lower courts are going to have to figure it out for themselves, and some of the courts are, I think, going to be more sympathetic to these coercion claims than others,” says Russell, a lawyer at the Goldstein & Russell law firm.
Taking The Long View
But Russell predicts that even if lower courts strike them down, most civil rights laws will survive scrutiny from the Supreme Court.
“The court went to great lengths in its health care decision to talk about how special and unique the Medicaid expansion was and seemed to be going out of its way to try to limit the scope of the holding,” he says.
That’s because states that failed to buy into the health care law would have all — not just some — of that money yanked away.
All those caveats are prompting some Supreme Court veterans to advise caution.
“It’s sort of surprising to me because if you think back to the arguments that were being made before the court’s decision, both the Commerce Clause and the Spending Clause challenges to the law were based on the idea that what Congress had done was unprecedented,” says Andrew Pincus, a veteran of the solicitor general’s office who now works at the Mayer Brown law firm.
Akhil Amar, who teaches at Yale Law School, takes a long view.
“One of the amazing things about a written constitution is that certain provisions can lay dormant for a very long time,” Amar says.
Not so long ago, he says, the Second Amendment, the right to bear arms, made a comeback. And so, he says, could other parts of the Constitution, if there’s a political will.