Health Care, Immigration, and Juvenile Sentencing Dominate Supre me Court’s Final Week

Supreme Court of the United States

The U.S. Supreme Court capped its 2011-12 term on June 28 by upholding “Obamacare,” but the case was just one of three decisions to garner the attention of the human rights community in the Court’s final week. Although not explicitly ruling on human rights law, the decisions on health care, immigration laws, and mandatory life sentences for juveniles concern application of human rights issues in domestic courts.
Affordable Care Act (National Federation of Independent Business v. Sebelius)

The most anticipated decision, over challenges to the Patient Protection and Affordable Care Act (ACA) 0f 2010, upheld the law on June 28 by relying on the federal government’s authority to levy taxes and create Medicaid programs, but the effect was to allow the implementation of the broad expansion of access to health care insurance. By extending insurance access to what is expected to include more than 32 million additional people, the ACA is consistent with the aspirations of Article 25 of the Universal Declaration of Human Rights (UDHR), which includes medical care as an element in ensuring that a person has “the right to a standard of living adequate for the health and well-being of himself and his family.”

The UDHR is legally non-binding, although the United States is a state-party to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which does require in Article 5 that States Parties undertake, without regard to distinction based on race or national or ethic origin, to “guarantee the right of everyone” to, among other social services, “the right to public health, [and] medical care.” Although the treaty is non-self-executing, the United States remains legally bound to the treaty’s provisions.

The ACA decision, authored by Chief Justice John Roberts, did not reference the U.S. commitments under international law, but human rights groups generally support the result and the ACA in general. Amnesty International stated that access to health care was a fundamental right that had too long been neglected and that the “Supreme Court ruling will help to ensure that more people can get the care they need.”

A 2010 survey by the Centers for Disease Control and Prevention found that 48.2 million people under age sixty-five (and therefore not eligible for Medicare) lacked health insurance, which can drastically affect a patient’s level of care. The Court upheld the government’s authority to expand Medicaid, by simplifying eligibility criteria and including persons whose income is up to 133 percent of the federal poverty level, which the Congressional Budget Office expects to cover 17 million additional people by 2019. However, a majority of the justices voted to strike down the provision of the Medicaid expansion that made all Medicaid funds issued to states contingent upon acceptance of the new program. Thus, states can choose whether to accept the expanded access—for which 90 percent of the cost is covered by the federal government—or decline to implement the ACA’s expanded Medicaid coverage provision, meaning the true impact of the reform will depend on how many states decide to accept the new benefits.

Arizona v. United States

The Court’s decision regarding Arizona’s controversial 2010 SB-1070 immigration law may have been a split decision—overturning most of the law that created local immigration enforcement but letting its most controversial provision stand—but the ruling itself does not preclude a challenge that goes beyond the government’s strict federalism case against the law.

The Court struck down much of the Arizona law on June 25 because the law created state crimes and penalties for immigration, a subject that belongs exclusively to the federal government. However, the Court determined that the “show me your papers” provision, which requires law enforcement officers to check the status of suspected undocumented immigrants when reasonable, was not itself in direct conflict with the federal government’s authority and therefore preempted.

The Arizona law was the first of several passed throughout the country that seek to curb illegal immigration under the theory of “enforcement through attrition,” whereby undocumented workers “self-deport” because conditions in a state would make living there unbearable. Because the federal government’s case against the state law was strictly focused on preemption, the decision did not broach the subject of the Fourteenth Amendment’s Equal Protection Clause, also enshrined in Article 23 of the International Covenant on Civil and Political Rights (ICCPR) to which the United States is a State Party. Such a challenge would have more directly confronted the concerns of immigrant-rights activists that the law targets an entire racial group.

In what could prove consequential language near the end of Justice Anthony Kennedy’s 5-3 majority opinion (Justice Kagan recused herself), the Court stated that although the “show me your papers” could be constitutional, the initial ruling “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” Those “other constitutional challenges” would include those not raised by the limited Justice Department challenge, namely equal protection. So, despite the consternation of many immigrant-rights supporters, the decision leaves the door open for a challenge that, if successful, would make a stronger statement for civil and human rights by invalidating the law based on its discriminatory effects instead of through the more technical legal argument of preemption.

Miller v. Alabama

In the last decade, the Court has used some of its most explicit application of human rights law to curtail sentencing guidelines, criminal sentencing, and detention, especially as they pertain to crimes committed by juveniles. The June 25 decision in Miller v. Alabama, a challenge to mandatory life sentencing for crimes committed by juveniles, was consistent in that it invalidated the practice, but absent was any reference to evolving international norms.

Justice Kagan, writing for the 5-4 majority, found controlling the Court’s previous decisions on penalties for crimes committed by juveniles that bar capital punishment (Roper v. Simmons) and life in prison for non-homicide offenses (Graham v. Florida). The earlier decisions, which Kagan followed, argued that minors are not as culpable as adults and therefore lack adequate capacity to be sentenced the same. The Court agreed with findings in its earlier cases that sentencers should have the ability to consider the “mitigating qualities of youth.” Unlike Kagan’s opinion, the Court previously went a step further and found international norms to be a supporting authority.

In Roper, Justice Kennedy’s decision was noted for its direct application of human rights issues through the concept of customary international law that essentially uses the Charming Betsy canon of statutory interpretation, which is that a domestic law should be construed to be consistent with international law whenever possible. In a widely quoted passage that concludes the opinion, Kennedy wrote, “It does not lessen fidelity to the Constitution or pride in its origin to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the certainty of those same rights within our own heritage of freedom.”

A factor that Kennedy considered was the International Convention on the Rights of the Child (CRC), a treaty that only the United States, Somalia, and the newly created South Sudan have yet to ratify. Although the United States commonly signs but does not ratify human rights treaties, the fact that the treaty in Article 37(a) specifically calls on states to bar both capital punishment and life imprisonment for juveniles has been seen as a roadblock to ratification. President Obama, who once called it “embarrassing” that the United States has not ratified the treaty, has indicated support for pursuing ratification, but like the previous two presidents has not submitted the CRC to the Senate for advice and consent.

Even with the Miller decision, the Court stopped short of CRC requirements because the Court stated that it did not need to rule on the general constitutionality of life sentences for minors in order to dispose of the case, an inaction criticized by Human Rights Watch, which otherwise praised the decision. However, nothing in the decision precludes the Court from later considering the broader case. Looking at the reasoning the Court has used and its incremental method of recognizing changes to consensus on juvenile punishment, it seems likely the Court will revisit the subject in the future.

*****

The decisions in these three cases will be further explored in a July 18 webinar presented by the Center for Human Rights & Humanitarian Law at American University’s Washington College of Law. More information and instructions for registration can be found at http://www.wcl.american.edu/humright/center/events/upcoming/scotushumanrightsimplications.cfm.

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