American Government and the Constitution Lecture Ten

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

Case Study: "Cert Granted" in new lawsuit against ObamaCare

The recent saga of a legal challenge to the Patient Protection and Affordable Care Act (better known as "ObamaCare") illustrates the process by which the U.S. Courts of Appeals and the U.S. Supreme Court work to resolve disputes about the legality of a certain law and how it is implemented.

Opponents of ObamaCare brought lawsuits in the District of Columbia (D.C.) and Virginia challenging the legality of subsidies being granted by the Obama Administration to people who signed up for ObamaCare in many States. The lawsuit in D.C. was called Halbig v. Burwell; the lawsuit in Virginia was entitled King v. Burwell. For more than a year these cases were separately litigated in the two different federal district courts, located within two different U.S. Courts of Appeals.

Both cases concerned the same issue: is it lawful under ObamaCare for the federal government (now the Obama Administration) to give subsidies (tax credits) to people who sign up for ObamaCare on federally run health insurance exchanges? The plaintiffs argued in the cases that ObamaCare authorizes federal subsidies only when people sign up on state-run health insurance exchanges, not on federally run health insurance exchanges. The plaintiffs argue that the subsidies were a way to induce states to set up their own health insurance exchanges, and thus can be used only to fund participation in state-run health insurance exchanges. After the district courts rendered their decisions, each case when up on appeal, one to the U.S. Court of Appeals for the D.C. Circuit (from the federal district court in D.C.) and the other to the U.S. Court of Appeals for the Fourth Circuit (from the federal district court in Virginia)

On July 22, 2014, a rare coincidence occurred: the D.C. Circuit and the Fourth Circuit rendered their decisions in the two separate cases on the same day. More important than the odd timing, their decisions were in conflict with each other. The D.C. Circuit struck down the subsidies as being illegal under ObamaCare, while the Fourth Circuit upheld the subsidies.

That created a "Circuit split," which is the single biggest reason why the U.S. Supreme Court will "grant cert" in order to decide an issue and ensure consistency on it nationwide by resolving any disagreement among the Circuits. The Supreme Court rarely grants cert; it dismisses and refuses to hear 99% of the appeals brought before it. But when Circuit courts disagree with each other on a legal issue, then the Supreme Court is more likely to hear the appeal in one of the cases and end the disagreement.

The Obama Administration then did something clever to try to avoid review by the U.S. Supreme Court of this issue (and avoid having the Supreme Court rule against the subsidies). The Obama Administration petitioned the D.C. Circuit for a rehearing en banc (by all the active judges on the Circuit). The active judges on the D.C. Circuit held in favor of the Obama Administration by voting to vacate (erase) the panel decision against the subsidies, and this removed the Circuit split. This erased the biggest reason why the Supreme Court would accept the issue for its review.

The maneuvering by the Obama Administration did not achieve its apparent goal, however. To the dismay of liberals, the Supreme Court granted the petition for certiorari in the Fourth Circuit case, perhaps based on the national importance of the issue rather than a Circuit split, and will render a decision on the subsidies by June 2015.

State Sovereignty and the 10th and 11th Amendments

A fundamental aspect of the U.S. Constitution is its respect for the sovereignty of the States. The U.S. Constitution created a limited national government that was not supposed to infringe or intrude upon the traditional authority and jurisdiction of the States. Ever since, there has been a mostly friendly tug-of-war for power between the national (federal) government and state governments.

The Tenth Amendment in the Bill of Rights expressly reserves to the States, and to the people, the power not delegated to the national government. The national government was intended to be limited, while State governments were to continue with the full authority they had prior to the ratification of the Constitution.

But encroachment by the national government on the state governments soon began. The U.S. Supreme Court met for the first time in New York in 1790, and its first major decision was Chisholm v. Georgia (1793). It held that federal courts may hear lawsuits by individuals seeking money from State government. In this decision, the U.S. Supreme Court created a new power for federal courts to award money damages against State governments, such as the State of Georgia.

This Supreme Court decision sparked outrage among the States, which never thought they were giving so much power to federal courts. States had long enjoyed "sovereign immunity," which prevents a court of law from ordering them to pay money (except where the State has consented to waive its immunity). Just as the kings back in England were immune from lawsuits, so were the States. It was shocking to the States that federal courts asserted power to inflict damage awards against States, as held in Chisholm v. Georgia. With massive debts still persisting from the American Revolutionary War, States feared large money judgments against them in federal court.

The people reacted to the Supreme Court decision in Chisholm v. Georgia by amending the Constitution, adding the Eleventh Amendment. It states:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

In ordinary English ("layman's terms"), that means federal courts are generally not authorized to impose money judgments ($$$) against State governments. The exception is when Congress passed a law pursuant to a subsequent amendment to the Constitution, particularly the 14th Amendment, which authorizes money judgments against State government in federal court.

The significance of this limitation placed by the Eleventh Amendment on the power of federal courts is substantial. How States spend money is generally beyond the authority of federal courts. Unless Congress has passed a specific law under the 14th Amendment authorizing federal courts to assess damages against State governments, States cannot be subject to monetary awards against them by federal courts. Explained another way, federal courts are without power to bankrupt the States, and States can spend their money without much interference by the federal government.

Trial by Jury?

The Seventh Amendment guarantees a trial by jury in civil cases where the amount in dispute is greater than $20, in lawsuits "at common law." (Separately, the Sixth Amendment guarantees a trial by jury in criminal cases.)

What are lawsuits "at common law"? Those are traditional lawsuits based on rights recognized at the time by the common law of England, which developed over hundreds of years. These include actions based on trespass, or injury caused by one person against another. Where Congress creates a new "cause of action" (basis for a lawsuit), there is no constitutional right to a jury trial. But Congress may create a right to a jury trial in connection with any new right that it creates by statute.

The right to a jury trial does not exist in most other countries. In Mexico, for example, there are no jury trials. The judge controls much more of the process than a judge does in the United States. A judge in Mexico obtains evidence and decides which witnesses will be called at a "bench trial." (A "bench trial" is a trial decided by a judge, not a jury.)

Initiative and Referendum

The Constitution does not allow direct democracy by the people. There are no national issues that go on the ballot.

But initiatives and referenda do exist at the state level, mostly in the West (particularly California, Oregon, the State of Washington, Colorado and Arizona). There people can make new laws by voting on an issue an election, rather than relying on representatives to make the laws for them. Towns can have issues on the ballot also.

Numerous important issues were "on the ballot" in many States and towns in 2014, on issues ranging from abortion to early voting to a ban on extracting natural gas known as "fracking" to an attempt to legalize marijuana to the repeal of a new law in Oregon that would have granted drivers licenses to illegal aliens. In States where ballot initiatives are allowed, the people vote directly on certain proposed laws that are placed on the ballot. The process to place a proposed law on the ballot in New Jersey is more difficult than in most states, so there are not many controversial proposed laws on the ballot in New Jersey.


An "initiative" is a new law proposed ("initiated") directly by the people. This is done by obtaining thousands of signatures on a petition that includes the new law.

An "initiative" is when the people put a proposed law directly on the ballot themselves, by obtaining enough signatures beforehand on a petition to do this. South Dakota was the first state to allow this, beginning in 1898 (more than 100 years ago). Now 24 states (not New Jersey) allow the passage of new laws by the initiative process.[1] Sometimes people can even amend their state constitution this way. A map of which States allow initiatives is available on the internet.[2]

There are two types of initiatives: direct and indirect.

In a "direct initiative," once enough signatures for a petition for a new law are obtained, then it goes directly on the ballot after review by a state government official. In an "indirect initiative," the proposal is first submitted to the state legislature to give it a chance to enact the law. If the legislature does not enact it, then the initiative goes on the ballot for the people to decide. But in an indirect initiative, the legislature may put a competing law on the ballot alongside the one proposed by the people. States that use the indirect initiative process are Maine, Massachusetts, Michigan, Mississippi, Nevada and Ohio. In two states, Utah and Washington, the people may initiate direct or indirect initiatives.

The steps for an initiative, in the States that allow it (New Jersey does not allow this), include first presenting the petition to a state official for his review and authorization to begin collecting signatures on it, along with a title and summary for the new law. Obtaining those signatures is a time-consuming, labor-intensive process, and may take months. Signatures must then be submitted to a state official prior to deadline for him to confirm that enough signatures were obtained in order to qualify for the ballot.


There are two types of a referendum: a legislative referendum and a popular referendum. (The plural of referendum, because it is Latin, is "referenda".)

A legislative referendum is a bill placed by the state legislature on the ballot for a vote by the people. A popular referendum is when the people exercise their right to approve or repeal a bill that the legislature has already passed.

New Jersey does have the legislative referendum when the legislature seeks to amend the state constitution, or in circumstances relating to increasing the debt of state government. The legislature cannot amend the state constitution by itself; a legislative referendum is needed in order to change the state constitution. Also, the New Jersey Constitution requires the state to balance the budget each year, so a legislative referendum is needed to approve incurring new long-term debt (as in issuing bonds).

All 50 states have procedures allowing legislative referendum.

A "popular referendum" is very different. It allows the people to repeal a law recently passed by the legislature. If the people gather enough signatures within a period of time after a legislature passes a new law—typically 90 days—then the law is placed on the ballot for a public vote. The law may not go into effect until the people vote on it. Most of the states that allow initiatives also allow the people to veto a law recently passed by the legislature, through this mechanism of the popular referendum. In the past decade, Democrats in Ohio and South Dakota overturned good laws passed by their legislatures by using a popular referendum. In total, 24 states (not New Jersey) allow the popular referendum. Most of these states are in the Midwest and West.


Initiatives and referenda originated in the Progressive Era of the early 20th century. Many students instinctively like this concept. It bypasses the special interest groups and lobbyists (lobbyists are people hired to persuade legislators to pass laws, usually to help the corporations who hired the lobbyists), and lets the people make a decision themselves about what is good. And on some issues, what a majority of the people want is a good thing. But often it is not, and the Founders of our Nation opposed a pure democracy. Conservative Ron Paul once observed that "pure democracy is dangerous."

There are many examples of when the majority view of the people is not what is best for the Nation. When a proposed law to increase the minimum wage is put on the ballot for a vote by the people, it wins nearly every time because most people do not understand economics.[3] They think that laws increasing the minimum wage make people better off, because they then earn more money for doing the same work. Most people do not realize that a higher minimum wage results in more unemployment, because businesses cannot hire as many people at the higher wages. A higher minimum wage also results in fewer young people going to college, because they decide to make more money working instead. Some of those young people would have been better off by going to college and obtaining a better job later.

Some people in the State of Colorado used its initiative process to pass a law making it legal to smoke marijuana there. The result will be harmful for society. There will be more drivers on the road who are on drugs and crash into other people in accidents. There will be more crime resulting from the drug use, and more students will drop out of school or lose their jobs because they became addicted to the drugs. There will be more health problems, as drug use has been associated with increased brain tumors and other serious problems. What the majority of the people approved is not what is best for society, and this illustrates why the Founders opposed a democracy. Elected representatives would not have approved this law that a majority of the people voted for. Also, the liberal media have a greater influence over the views of the general public than over a legislature, because legislators have a better understanding of how biased the media really are.

A few years ago in New Jersey, the people voted to allow state colleges to go into additional debt in the amount of $750 million, despite already being in enormous debt. Perhaps people voted for it because they thought it would improve education for students, without recognizing how harmful more debt is.

2014 Midterm Elections

Two of the most remarkable results in the recent 2014 Midterm Elections were the defeat of the early voting referendum in Missouri by a landslide vote of 70-30%, and the repeal by a landslide vote of 66-34% of a new Oregon law which would have allowed illegal aliens to obtain drivers licenses. Supporters of authorizing drivers licenses for illegal aliens lost despite outspending their opponents by a 10-to-1 margin on the referendum, and despite how Oregon is one of the most liberal States in the country.

Another issue on the ballot in Oregon, which divides both conservative and liberal voters, was whether to require labeling on foods made with Genetically Modified Organisms (GMO). That ballot initiative lost by a narrow margin of 50.5-49.5%, and its supporters vowed to try again.


Another type of "citizen democracy" is the "recall" of public officials from office, which enables the people to gather signatures to hold a special election to vote on whether to remove a state official from office before the expiration of his term. At least 29 states, including New Jersey, allow some form of recalling state or local officials.[4]

Several years ago, unions angry at Wisconsin Republican Governor Scott Walker attempted to recall him from office. They collected enough signatures, but when the special election was held, Governor Walker won a majority of the vote. His reelection was helped by the raising and spending of $63 million in support of him during the campaign leading up to the recall election.

Last decade, Republican Arnold Schwarzenegger was elected governor of California after the Democrat, Gray Davis, was recalled and removed from office in 2003. Prior to that, the only time a governor was recalled from office was in 1921, in North Dakota.

Many officials other than governor are recalled from office by this procedure of gathering enough signatures to hold a special election. In New Jersey, the governor has never been recalled, but other officials have been. The New Jersey Constitution provides:

The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections. Any such laws shall include a provision that a recall election shall be held upon petition of at least 25% of the registered voters in the electoral district of the official sought to be recalled.

The process to recall a state official in New Jersey is this:

No sooner than 50 days before the completion of the state official's first year in office, a recall committee of at least three people may form and submit to the state a short petition to recall the official. The state official must respond within three business days, and also notify the incumbent that there is an effort to recall him. If the petition is approved, then the recall committee must obtain signatures of other registered voters over the next 160 days (320 days to recall the governor). The number of signatures must be at least 25% of the registered voters in the relevant jurisdiction in the last general election. Those signatures are then turned in to the state election official, who must determine within 10 days whether enough signatures were obtained.

In 2010, your instructor argued a case before the New Jersey Supreme Court to establish a right to recall a U.S. Senator by this procedure. Several homeschooled students attended the oral argument in Trenton, and the gallery was overflowing. But by a 4-2 vote, the New Jersey Supreme Court held that the provision in the New Jersey Constitution allowing the recall of federal officials, specifically U.S. Senators, was unconstitutional under the U.S. Constitution. The dissent argued that the New Jersey Supreme Court should not have ruled on the constitutional question because it was unripe. What is your view about whether the Constitution prohibits recalling members of Congress?

Lame Duck Congress

As of mid-November 2014, there are now about six weeks left to the current session of Congress, between now and the Christmas break, during which new laws can be enacted by the House and Senate, and the Senate can ratify treaties. This is called the "lame duck" session of Congress, or simply the "lame duck Congress," because many congressmen are still in office despite being replaced by the midterm elections that occurred in early November.

It is risky when congressmen hold power without any accountability to the American people, as occurs in a lame duck Congress. Many oppose holding any "lame duck" sessions of Congress because there is so little accountability for what Congress does. Some liberal or moderate congressmen might vote based on their own plans for their own future outside of Congress, rather than doing what is best for the Nation.

The Filibuster

All legislative chambers, such as the House of Representatives and the Senate, have their own rules governing their procedures. How bills can be introduced, debated, amended and voted upon are determined by the rules adopted by the particular legislative chamber at the beginning of its session.

The House of Representatives procedures are similar to "Roberts' Rules of Order," which is the standard set of rules governing parliamentary procedure in most organizations, public or private, in the United States. Indeed, Roberts' Rules of Order were originally based on the procedures used by the House of Representatives in the 19th century.

The U.S. Senate has its own set of procedures, which are unique in the world. It is run more like a small club, where merely one member (senator) can delay and block something that a majority wants to do. This is called a "filibuster", when one person blocks a vote on a bill even though a majority wants it to pass. A traditional filibuster was when the person stood up and talked about the bill for hours, simply to delay a vote on it. Nowadays the talking part is usually not necessary. One senator can block a vote on a bill in the Senate simply by mentioning his right to filibuster it.

Under Senate rules that are re-approved at the outset of every session, a filibuster will stop a bill unless 60 out of 100 senators vote for "cloture" to "close" the filibuster and allow a vote to continue.

But Democrats had a 55-45 advantage in the 2013-2014 Senate, which was a majority but not enough to end filibusters. After the 2012 election, Democrats changed the cloture requirement from 60 to 51 votes for the confirmation of presidential nominees, so that Republicans became unable to block votes on confirming judicial appointments. Republicans opposed this change, observing that Senate rules require a 2/3rds vote to approve such a claim,[5] but Democrats changed the rules anyway with their majority.

Now, thanks to the 2014 midterm elections, Republicans have gained a 54-46 majority (assuming the Republican wins the runoff election in Louisiana), so Republicans do not need to rely on the filibuster from January 2015 until at least January 2017.

Defenders of the filibuster rule in the Senate point out that it has worked well for a long time, and it is important for a group of senators to be able to block legislation even if a majority want to pass it. After all, more bad laws are passed than good ones, so anything that enables slowing down or blocking legislation may be good for the Nation. The filibuster was used to block the confirmation of controversial judges to the federal courts. But now that Republicans have a majority, they do not need to rely on the filibuster to block liberal nominations to the federal judiciary.


Answer five of the following six questions:

1. What is the difference between a referendum and an initiative? What do you think of each one?

2. Explain how King v. Burwell became a case before the U.S. Supreme Court, and why that was a surprise.

3. Pick an initiative or referendum on the ballot in the recent midterm elections and explain why it was an "initiative" or a "referendum", what your view of the issue is, which side won and by how much.

4. Explain what the Eleventh Amendment is, and why it is important.

5. What is a "lame duck" session of Congress, when does it occur, and what is your view of it?

6. Explain what a filibuster is, and what your view of it is.


Answer two of the following three questions, or one of the following questions and the question that you did not answer among the first six questions:

7. Discuss your view of an issue that was on the ballot in the recent midterm elections, whether you agree with the outcome, and whether you think the issue should have gone on the ballot at all.

8. Do you think the people should have the right to recall U.S. Senators, or do you think the Constitution prohibits it? Explain.

9. What is your view of the constitutional right to a trial by jury in civil cases? Explain.


  3. A rare exception was in 1996 in Missouri, when a minimum wage referendum in Missouri was defeated "overwhelmingly." [1]