Month: March 2012

CrestCare — Constitutional?
By Ryan Long

CrestCare — Constitutional?

The Obama administration recently passed CrestCare. Never heard of it? It is a new federal law which requires every citizen to brush their teeth with Crest brand toothpaste. Certainly, the law must be unconstitutional, although it would be nice not to smell bad breath on the elevator ride up to the office, or on the construction site, in the morning. And yet maybe, just maybe, the law would be upheld by the Supreme Court if it was ever challenged.

Of course, there is no CrestCare. It is a wonder whether the federal government would be empowered to pass such a law if the United States Supreme Court upholds the constitutionality of ObamaCare’s requirement that all citizens have health insurance. On Monday, the high Court began hearing oral arguments to determine whether that part of ObamaCare, in addition to others, are constitutional. In the case, titled Department of Health & Human Services, et. al. v. States of Florida, et. al., No. 11-398, the attorney generals of various states have brought suit to bar enforcement of ObamaCare, the details of which have been covered ad nausea elsewhere, and which I will leave for your musings.

The marrow of the government’s argument as to why ObamaCare should be upheld is the Commerce Clause, which gives Congress the exclusive authority to “regulate commerce . . . among the several States.” That is my emphasis. Over the years, the Supreme Court has read “among” to include anything that could affect interstate commerce, even if the conduct in question is wholly intrastate in character. In Wickard v. Filburn, for example, the Court held in 1942 that the federal government could regulate a farmer’s growth of wheat in his own backyard even though it was for his own consumption. The reason: the farmer’s growth would affect the interstate flow of wheat. Then, in Gonzalez v. Reich, the high Court in 2005 held that the feds could regulate wholly intrastate consumption of marijuana under California’s Proposition 215.

While the Court’s decisions in both Wickard and Gonzalez stretch the limits of “among the several states” to their intellectual limits, neither decision dealt with a federal law compelling someone to do something. Instead, both decisions involved a federal law prohibiting someone from doing something. Whereas part of ObamaCare compels every living citizen to buy health insurance. This seems to stretch the Commerce Clause so far that it has no limits left. Even if you like the idea of nationalized healthcare, this is not a constitutionally permissible way to go about it.

If the Court upholds the part of ObamaCare mandating health insurance for all citizens on Commerce Clause grounds, there is nothing barring the feds — or Crest — from mandating CrestCare.

Eat your cake but you shouldn’t be able to have it, too.
By Ryan Long

Eat your cake but you shouldn’t be able to have it, too.

Dewey, Cheatem, & Howe. P.C. (“Dewey”) is a Dutch based professional corporation, pictured above, that helps Somalia pirates rob and steal from you, a Nigerian citizen, on the high seas. The U.S. Supreme Court heard oral arguments on Tuesday in Kiobel v. Royal Dutch Pertroleum Company to determine whether you would be able to sue Dewey in the United States under the Alien Tort Statute (“ATS”) even though Dewey is a corporation. Given that corporations are considered “persons” for First Amendment purposes, companies should also be considered persons subject to suit under ATS. Otherwise, the lawyers at Dewey — Curly, Moe, and Larry — would be free to aid and abet the pirates, while none of them alone would be able to.

In Kiobel, 12 Nigerian citizens sued Royal Dutch Petroleum (“Royal Dutch”) under the ATS in U.S. federal court for allegedly aiding and abetting human rights violations by the Abacha dictatorship in Nigeria. The ATS, passed in 1789, allows federal courts to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The issue in the case is whether Royal Dutch may be sued even though it is a company and not a natural person. The law to date has only included natural persons within the scope of the ATS, which only defines who may sue but not who may be sued.

The opposing sides have arguments that are not supported by the text of the statute. Royal Dutch’s appellate lawyer, Kathleen Sullivan, argued to the Court that “[t]here is no country in the world that provides a civil cause of action against a corporation under their domestic law for a violation of the of nations,” reports The New York Times in Court Debates Rights Case Aimed at Corporations. Instead, she claims that “every convention for every international tribune excludes corporations.” The deputy solicitor general, Edwin S. Kneedler, argues on behalf of the plaintiffs that there need not to be a constraint on who may or may not be sued under the ATS because it “does not identify who the defendant may be.”

Regardless of what other countries do or the absence of textual guidance in the ATS, the Supreme Court recently reaffirmed its position that corporations are “persons” within the meaning of the First Amendment in Citizens United v. Federal Election Commissions. If Dewey were a professional corporation based in New York, it would have just as much protection under the First Amendment as you do. Given that this is the law of the land, it seems intellectually disingenuous to count corporations beyond the scope of the ATS as a matter of law but within the scope of the First Amendment. It seems a better approach would be to allow suits against companies like Dewey or Royal Dutch under the ATS but then potentially dismiss the suit for other reasons, including no violation of the law of nations or a treaty of the United States, until Congress hopefully amends the ATS to make it clearer.