Chief Justice John “Marshall” Roberts—How the Chief Justice’s Majority Opinion Upholding the Federal Patient Protection and Affordable Care Act of 2010 Evokes Chief Justice Marshall’s Decision in Marbury v. Madison

[Excerpt] “The United States Supreme Court sustained the Federal Patient Protection and Affordable Care Act of 2010 based on Chief Justice John G. Roberts, Jr.’s majority opinion in National Federation of Independent Business v. Sebelius. The decision was feted by President Obama, liberal politicians, activists, and citizens who feared the Supreme Court would use its judicial review powers to invalidate the signature achievement of the United States’ forty-fourth President. Unsurprisingly, the decision disappointed many conservatives, who expected the Court to exercise its judicial review power to invalidate what is arguably the most important and ambitious piece of federal social welfare legislation signed into law by any President since the Great Society Era. The Act is very unpopular with conservatives and right-wing media pundits because it was signed into law by a Democratic President in a country with increasingly pronounced partisan political cleavages and because it substantially reallocates resources in an industry that already consumes nearly one-fifth of the nation’s gross domestic product. Opponents of the Act seized on the “individual mandate,” which requires federal income tax-paying individuals to “ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage . . . from private health insurance companies or pay what the Act describes as a “shared responsibility payment” or “penalty” directly to the Internal Revenue Service of the United States Treasury Department (“IRS”).

Madison 2.0—Applying the Constitution’s Taxing and Spending Clause to Revitalize American Federalism

This article introduces the proposal entitled Madison 2.0 which calls for an enlightened federal government to enact legislation—using its broad ability to tax and spend for the general welfare—to revitalize, as opposed to undermine, American federalism. Part I discusses American Federalism today and the need for an updated approach. Part II explores the government\u27s dysfunctional response to the Covid-19 pandemic. Part III proposes how to revitalize American federalism through the Spending Clause. Part IV discusses how to claw back funds in situations of state recalcitrance and replacing funds with a basic income. Lastly, this article concludes by explaining why the Madison 2.0 proposal address the need to revitalize American federalism

Reforming State Electoral College Laws to Depolarize American Politics

Brnovich v. Democratic National Committee involved the Supreme Court gutting the remaining vestiges of the Voting Rights Act (VRA), such that jurisdictions will have free rein to impose partisan burdens on franchise rights that have a disproportionate negative effect on racial minority voters who, based on racial political polarization, prefer Democratic Party candidates over their Republican opponents. Brnovich follows the highly divisive 2020 presidential election that Joe Biden won against former President Trump based on very narrow margins in highly contested swing states, notwithstanding a nationwide popular margin of more than 8 million votes. This blurring of the lines between partisan and racial motivation in the context of pronounced racial political polarization in a highly contested two-party election framework has left ample room for partisans on both sides of the two-party divide to be incentivized to exacerbate the racial, regional, and socioeconomic cleavages that have systematically undermined national cohesion in recent years. Something must be done to remedy the chasm that divides the country. Some reflexively blame the two-party system and argue for its replacement with a multi-party framework as found in western Europe. Many, including myself, blame the country’s reliance on single-member plurality districting, which encourages partisan gerrymandering and vote dilution of minority party votes. Because presidential governance, more than its Congressional counterpart, relies on democratic legitimacy, a potential means of increasing national cohesion is for state legislatures to reform their means of awarding their states’ Electoral College votes from the current “winner-take-all” framework to one that awards Electoral College votes in rough approximation to the percentage of the two-party vote won by the major candidates, with a bonus vote for the state winner where the popular vote result would otherwise indicate an even split of Electoral College votes (Apportionment Proposal). The Apportionment Proposal will also engender national cohesion by depolarizing the legitimacy of the election outcome in each state, thereby disincentivizing voter suppression and foreign election interference in highly contested swing states because the popular vote outcome in each state will be less outcome determinative. Limiting the award of Electoral College votes to the two leading candidates also protects against the proliferation of splinter and regional party candidates that would undermine national cohesion. Finally, unlike replacement of the Electoral College with a French-style nationwide popular vote, or the often mooted proposal to award bonus Electoral College votes to the nationwide popular vote winner, the Apportionment Proposal does not require a constitutional amendment and protects a key advantage of the original Electoral College, namely to encourage nationwide campaigning by candidates in lieu of monographic focus on the country’s major population centers. This also explains its advantage over the national popular vote compact, whereby each state would award its Electoral College votes to the nationwide popular vote winner

The Privileges or Immunities Clause: A Potential Cure for the Trump Phenomenon

The xenophobic authoritarianism of Donald J. Trump\u27s highly successful Presidential candidacy as well as the popularity of far-right nationalists in other mature democracies traces its origins to the problem of middle class wage stagnation and how this relates to income and wealth inequality, which have both grown dramatically since the 1970s with the advent of free market neoliberalism as the developed world\u27s prevailing economic ideology. Although this problem has manifested itself in all first-world nations, the bleakest example of this problem is found in the United States, where inequality and socio-economic immobility inform much of the impetus behind Mr. Trump\u27s popularity. The Privileges or Immunities Clause: A Potential Cure for the Trump Phenomenon? argues that the problem of inequality and its problematic political consequences is attributable not only to economic globalization, but policy choices undertaken by all levels of government, including the Supreme Court of the United States, which has taken a crabbed and excessively deferential approach to discriminatory and regressive socioeconomic legislation, while intrusively subjecting progressive legislation aimed at remediating poverty to a more searching standard of review. The article\u27s thesis is that the Court should end its regressive approach to socio-economic legislation and fulfill its institutional obligation to bridge the nation\u27s socio-economic and political divides by finally effectuating the promise of the long mistakenly disregarded Privileges or Immunities Clauses of Article IV, Section 2 and the Fourteenth Amendment, Section 1, to require all Americans be provided Court-protected socio-economic and political rights consistent with living in a first-world mature democracy. Taking such a jurisprudential approach would provide Americans with the necessary socio-economic and political rights to effectuate the obligations of citizenship and help them regain the cohesion, hopefulness, idealism, and energy of the post-World War II era, such that America can once again take its rightful place as the world\u27s leading nation and authoritarian demagogues like Trump can be effectively delegitimized and consigned to the ash-heap of history

AMERICA FIRST: IMPROVING A RECALCITRANT IMMIGRATION AND REFUGEE POLICY

This paper will discuss the need for developed and mature democracies, such as the United States, to take in substantially more refugees and economic migrants in view of the demand surge for international migration and the obvious humanitarian imperative. It will then argue that this will not happen under the current paradigm, whereby rich-world democracies that allow refugees and economic migrants to settle fail to take adequate measures to ensure safe repatriation and resettlement to migrants\u27 countries of origin. This failure leads to unconsented permanent residency and subsequent naturalization that fuels a backlash by nativists and social conservatives, as evidenced by the Trump, Le Pen, and Brexit phenomena.\u27 The fact that migration to rich-world countries almost invariably leads to permanent residency has the perverse consequence of placing undue pressure on rich-world governments, including the U.S., to do their utmost to exclude both refugees and economic migrants. The current commitment by developed nations to exclude third-world migrants, as evidenced by the maltreatment of Syrian and Rohingya refugees and economic migrants from Latin America, Eritrea, Afghanistan, and sub-Saharan Africa,2 has everything to do with the failure to repatriate these migrants when feasible. This failure also untethers migrants from their countries of origin, which undermines long-term economic growth and democratization in the developing world.3 The Trump Administration could take the lead in global migration issues by changing the U.S.\u27s current immigration and refugee resettlement program by substantially expanding access to temporary residency in lieu of immigration and permanent residency. By doing so, the U.S., and other rich countries that might follow, will be able to address the migration demand to improve global well-being while being responsive to the legitimate needs and concerns of their own citizens