Nahmod Law

The Patient Protection and Affordable Care Act: The Commerce Clause and Constitutional Trust

I blogged over two years ago on the Commerce Clause–see post of September 26, 2009–where I provided a doctrinal and historical perspective that readers might want to consult for background.

The Florida Case and the Patient Protection and Affordable Care Act

In this post I want to say some things about the high-profile case currently pending before the Supreme Court from the Eleventh Circuit, Florida v. U.S. Dept of Health and Human Services, 648 F.3d 1235 (11th Cir. 2011), cert granted, 132 S. Ct. — (2011). As I discuss below, this case in essentially about constitutional trust regarding the limits of Congressional power under the Commerce Clause. And it is, in my view, a rather easy Commerce Clause case!

In this very lengthy decision, a divided panel of the Eleventh Circuit held unconstitutional the individual mandate to purchase health care insurance set out in the politically controversial Patient Protection and Affordable Care Act (PDF). According to the panel, this provision, which requires the purchase of health care insurance–a requirement enforced by a monetary penalty for non-compliance to be included on the person’s federal tax return–exceeded Congress’s power under the Commerce Clause.

(Other aspects of this decision (a) upheld the Act’s  Medicaid expansion provisions against a Spending Power challenge, (b) held that the individual mandate was a penalty, not a tax, and thus Congress could not use the Taxing power to enact it, (c) held that the individual mandate was not a valid exercise of Congress’s power under the Necessary and Proper Clause and (d) held that the (unconstitutional) individual mandate could be severed from the rest of the Act.)

The panel, obviously aware of the importance and high-visibility of its decision, extensively canvassed the relevant Supreme Court Commerce Clause jurisprudence. It reached as far back as Chief Justice Marshall in Gibbons v. Ogden in the early 19th century. It went through the Court’s New Deal decisions which began to defer increasingly to Congressional exercises of the Commerce Clause power. It then continued with an analysis of the Court’s more recent decisions, including Lopez (gun-possession-near-schools) Morrison (The Violence Against Women Act) and Raich (growing marijuana for personal medical use). The Eleventh Circuit concluded that in light of these decisions, Congress had exceeded its power under the Commerce Clause. Read the rest of this entry »

Written by snahmod

January 18, 2012 at 4:18 pm

Posted in Constitutional Law

Blog on Break

The blog is on break grading exams and papers, doing some writing and enjoying Chicago’s theater, music and culture scene until the middle of January, when the spring semester begins at Chicago-Kent College of Law (on January 17, 2012).

Next year I will  continue to blog on section 1983 and constitutional law.

I also expect to have a post or two on the Patient Protection and Affordable Care Act case currently pending in the Supreme Court.

And since I will be teaching a First Amendment course and a Constitutional Law and Religion seminar in spring 2012, I will likely blog on these subjects as well.

Happy holidays to you and best wishes for a healthy new year.

Sheldon Nahmod

Written by snahmod

December 23, 2011 at 12:41 pm

Posted in Uncategorized

From Monroe to Connick: Video

In my post of December 6, 2011, I provided an audio link to my November 3 presentation at Loyola Law School (New Orleans), as part of a program entitled “Prosecutorial Immunity: Deconstructing Connick v. Thompson.”

My 40 minute presentation is entitled: “The Long and Winding Road From Monroe to Connick.”

In it, I discuss the leading section 1983 local government liability cases, beginning with Monroe v. Pape in 1961 and culminating with Connick v. Thompson (about which I blogged several times) in 2011. I also address the impact of federalism concerns on local government liability for failure to train.

Below is a video link to this same presentation.

video link (Requires Real Player)

Real Player is free – download it here for PCs or here for Macs

Written by snahmod

December 19, 2011 at 2:12 pm

Posted in Civil Rights - Section 1983

Tagged with

From Monroe to Connick: Podcast

I spoke on November 3, 2011, at Loyola Law School (New Orleans) at a program entitled “Prosecutorial Immunity: Deconstructing Connick v. Thompson.” The audience included attorneys, law students, professors and members of the public.

My talk, “The Long and Winding Road from Monroe to Connick,” is forty minutes long. In it, I discuss the leading section 1983 local government liability cases, beginning with Monroe v. Pape in 1961 and culminating with Connick v. Thompson (about which I blogged several times) in 2011.

I also address the impact of federalism concerns on local government liability for failure to train.

Below are links to the audio version of my talk. I hope you find the talk informative and interesting.

You can listen to the audio alone here on this site or download the mp3 file to play on another device.


If you would like to save the file directly, here is the link: Monroe to Connick

Written by snahmod

December 6, 2011 at 10:57 am

Posted in Civil Rights - Section 1983

Tagged with

All My Posts Through 11-11-11

Since nahmodlaw.com began in August 2009, I have published almost 70 posts, including videos and podcasts, on what I consider to be topics of interest and importance going beyond what might be considered “hot” at any particular time.

It is now time to create an updated and inclusive current list of all of my linked posts by category for ease of reference and use.  (I did it once before well over a year ago).

This update will, I hope, be useful not only to my regular readers but also, and especially, to those who have only recently discovered this blog, whether through oyez.org or otherwise.

(Note that it is always possible to use the “search function” to look for particular cases or topics among every one of my posts, including those subsequent to this one).

What follows is a list comprising all of my posts divided into the following categories:

SECTION 1983;  CONSTITUTIONAL LAW;  FIRST AMENDMENT;  EDUCATION Read the rest of this entry »

Written by snahmod

November 11, 2011 at 12:48 pm

Posted in Uncategorized

A Section 1983 Primer (5): Statutes of Limitation

Introduction

This is the fifth of my section 1983 primers. I previously blogged on section 1983′s history and purposes (post of 10-29-09); on Monroe v. Pape (post of 11-29-09); on constitutional states of mind (post of 2-6-10); and on causation in fact and the Mt. Healthy burden-shift rule (post of 4-25-10).

This post addresses the important, and threshold, question of statutes of limitations in section 1983 cases.

The Basics

Because section 1983 does not have its own statute of limitations, it is “deficient” within the meaning of 42 U.S.C. section 1988. Under the provisions of that statute, where federal law is deficient, federal courts are to apply the relevant law of the forum state, unless the relevant law of the forum state is inconsistent with federal law or policy or discriminates against federal claims.

As a consequence of section 1988, statutes of limitations issues arising in section 1983 cases constitute an unusual amalgam of federal and state law regarding the choice of the proper limitations period, accrual and tolling.

Choosing the proper limitations period

The leading case is Wilson v. Garcia, 471 U.S. 261 (1985), which held that the forum state’s personal injury statute of limitations governs. This means that there is no national uniformity.

If the forum state has more than one possibly applicable personal injury statute of limitations, then the state’s residual or general statute of limitations governs. Owens v. Okure, 488 U.S. 235 (1989).

Accrual

When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).

In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed.   Delaware State College v. Ricks, 449 U.S. 250 (1980). Read the rest of this entry »

Written by snahmod

October 27, 2011 at 2:36 pm

Certiorari Granted in Filarsky v. Delia: Private Attorney Immunity Under Section 1983

Introduction

On September 27, 2011, the Supreme Court granted certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, which held that a private attorney retained by the government was not entitled to qualified immunity, even though all of the government actors involved in the same challenged conduct were so protected because they did not violate clearly settled law.

The Question Presented: “Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a ‘private’ lawyer rather than a government employee.”

Background

Qualified immunity is a well established affirmative defense to section 1983 damages liability that is afforded to state and local government officials and employees: they are protected, even where they in fact violated a plaintiff’s constitutional rights, so long as they did not violate clearly settled law as of the time of the constitutional violations. See generally NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 8 (4th ed. 2011)(CIVLIBLIT on Westlaw).

The major purpose of qualified immunity is to provide such defendants with a margin for error so that they are not unduly chilled in the exercise of their independent judgment. Indeed, over the past few decades, as I’ve written and blogged about previously, the Supreme Court has to a considerable extent converted qualified immunity into the functional equivalent of absolute immunity, thereby providing even greater protection for state and local government officials and employees.

However, situations occasionally arise where private persons are sued under section 1983 under the theory that they acted jointly, or conspired, with state or local government officials or employees. They accordingly acted under color of law and can be held liable in damages. The question arises: are such private persons, suable under section 1983, entitled to the same qualified immunity? Read the rest of this entry »

Written by snahmod

October 10, 2011 at 12:02 pm

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