The idea of a “glitch” in the ACA should not be so readily repeated. Instead, it should be handled as a crafty piece of conservative spin.
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There is no “will of the majority” exception to the Constitution. Unfortunately, the opinion by U.S. Sixth Circuit Court of Appeals Judge Jeffrey Sutton upholding the discriminatory marriage laws of Michigan, Ohio, Kentucky and Tennessee attempted to create one, exalting majority will over the Constitution’s promise of liberty and equality. Sutton’s opinion is chock full of legal errors, but its most basic is a faulty understanding of majority rule and federalism. The Constitution protects equal rights for all, and gives to the courts the job of preventing oppression of minorities at the hands of the majority. Leaving constitutional safeguards to the voters would place our most precious constitutional guarantees in jeopardy and subject to the whim of majority rule.
The drafters of the Fourteenth Amendment may not have been specifically thinking of gay and lesbian couples when they spoke of the need to ensure that the basic civil right of marriage was equally available to all. But the actual text of the Fourteenth Amendment’s guarantee of the “equal protection of the laws” is sweeping and universal. It protects all persons.
This particular brief was written by 18 state attorneys general in support of preserving subsidies for the ACA’s federal run exchanges, including 11 AGs from states that delegated management of their exchanges to Healthcare.gov. In it, they warned that a ruling against the exchanges would “deprive millions of low- and moderate-income Americans of billions of dollars in federal premium assistance needed to buy health insurance.” Among the signatories were the attorneys general from battleground states like Virginia, North Carolina, Pennsylvania, Iowa, New Mexico, and New Hampshire, as well as deeply conservative states like Arkansas and Mississippi. It’s a far more geographically and ideologically diverse show of support for affordable insurance through the exchanges than had surfaced to date.
Now, three months after the party-line House vote to green-light the lawsuit, no complaint has yet been filed. If this stretched out delay means that Boehner has actually redirected his sue-Obama gambit toward oblivion, the reason may be this unnoticed six week old CRS report.
While I don't think that it will take 19 more years for nationwide marriage equality, every day that gay men and lesbians are denied their constitutional rights and suffer the harms that follow is one day too many. So my joy today is tempered by the sadness of knowing that, for so many gay men and lesbians in this country, marriage equality is still a constitutional promise not yet fulfilled.
The court obviously can’t—and shouldn’t—take every case, and perhaps the court had good reasons for not taking these cases (and many others). But the one thing we can know for sure is the court decides not to hear lots of important cases each year, and as a result, justice is underserved for many. Court watchers are quick to criticize the court for the way it decides cases, but the court sometimes deserves criticism for the cases it doesn’t decide, as well.
Beginning this Constitution Day, and continuing through the 150th anniversary of the Fifteenth Amendment in 2020, we should work together to build a celebration that's worthy of the Second Founding's remarkable constitutional achievements — one that restores the Second Founding Amendments to their rightful place at the center of the American constitutional story.
The full D.C. Circuit's decision to rehear Halbig wasn't political; it was a straightforward application of Federal Appellate Rule 35, which governs when federal appeals courts should rehear cases en banc. According to your editorial, a case is of "exceptional importance" when it involves some "constitutional principle." But that's not what Rule 35 says. The rule provides that a case is of exceptional importance when "the panel decision conflicts with . . . decisions of other . . . Courts of Appeal." That standard was met here because the Fourth Circuit upheld the IRS rule.
John Roberts, the Chief Justice of the United States, grew up in Indiana. He could learn a very good lesson from the practices of his home state’s Supreme Court, which is that government functions best when those it serves can see and understand what it is doing. Clearly, the Indiana Supreme Court appreciates the value of openness in government. If Hoosiers can broadcast their oral arguments live, why can’t the U.S. Supreme Court?