OBAMA DOJ – WHICH SIDE ARE YOU ON?
Attorney General Holder continues to follow the Bush Justice Department policy of expanding the imperial presidency. Not content to argue that the government has considerable discretion to decide how to implement laws, President Obama's DOJ tries to deny access to the courts to those who would challenge government policies or actions. In cases DOJ calls national security cases this policy is expressed in preventing the accused from seeing evidence against him or asserting that victims of torture have no right to a day in court against the government whenever the government asserts that it would be embarrassing to the government to give the victim an opportunity to have his case heard. “Obama wins the right to invoke "State Secrets" to protect Bush crimes,” Glenn Greenwald, Salon, September 8,2010 (I use the word victim of torture rather than alleged victim of torture because the DOJ did not contest that plaintiff had been tortured.)
In civil cases depriving litigants of the right to be heard involves asserting the doctrine of standing, a legal doctrine which requires that a person coming before the court as a party has a more than theoretical stake or right in the outcome of the lawsuit. For example a right to life organization would not have standing to bring a lawsuit to prevent a husband from removing a feeding tube from his terminally brain damaged spouse, but the wife's immediate family probably would. The advantages of prevailing on standing are obvious; the opposing team isn't allowed to take the field. Most sports fans are embarrassed to win by forfeit, but the DOJ under most administrations lacks the sense of fair play and decency of all but the most rabid sports fans. (Attorneys are expected to be zealous advocates but attorneys for the government are held to a higher standard.)
Although the doctrine is applied in many contexts, the standing doctrine has frequently been a doctrine used by conservative courts to disqualify challenges to government policies. In a recent first amendment case the Obama Department of Justice sided with Justices Roberts,Scalia, Thomas, Alito and Kennedy who ruled that a citizen of Arizona had no right to appear in court to contest the constitutionality of an Arizona law authorizing public subsidies of religious schools through the use of tax credits. Arizona Christian School Tuition Organization v.Winn, 131 S.Ct. 812 (2010) The radical position on standing in first amendment cases taken by the Obama Department of Justice is captured in Justice Kagan's dissent, which was joined by Justices Breyer, Ginsberg, and Sotomayor:
“Until today, this Court has never so much as hinted that litigants in the same shoes as the Plaintiffs lack standing under Flast. To the contrary: We have faced the identical situation five times—including in a prior incarnation of this very case!—and we have five times resolved the suit without questioning the plaintiffs’ standing. Lower federal courts have followed our example and handled the matter in the same way. I count 14 separate cases (involving 20 appellate and district courts) that adjudicated taxpayer challenges to tax expenditures alleged to violate the Establishment Clause. I suspect I have missed a few. I have not found any instance of a court dismissing such a claim for lack of standing.” Arizona Christian School Tuition Organization v.Winn, Supreme Court of the United States,09-987,April 4 2011,p.6,Kagan (dissenting)
The latest Obama administration attempt to restrict public access to the courts occurred in a California Medicaid access case. Like most procedural legal issues a little background helps understand who is trying to do what to whom. Congress passed a law which requires states to ensure that Medicaid reimbursements are consistent with "efficiency, economy, and quality of care." 42 U.S.C. § 1396a(a)(30)(A) Medicaid is the poor relation of Medicare because it largely covers patients without assets who have chronic or terminal illnesses, are uneducated, unemployed, and don't vote. Even in underserved areas with numbers of poor patients, many doctors do not take Medicaid because of the low rate of reimbursement. Finding a specialist who accepts medicaid is especially difficult and often involves an appointment far from the patient's home. In the Medicaid balancing act between “efficiency, economy and quality of care” economy almost always prevails over quality of care.
According to a California district court judge and the United States Ninth Circuit Court of Appeals the state of California more or less arbitrarily decided to cut Medicaid reimbursements by 10% without any concern whether access to care of Medicaid patients would suffer. Santa Rosa Memorial Hospital, a California Corporation v. David Maxwell-Jolly, Director of the California Department of Health Care Services, No. 09-17633, (United States Ninth Circuit Court of Appeals, May 27, 2010) The Ninth Circuit found that there is “a robust public interest in safeguarding access to health care for those eligible for Medicaid, whom Congress has recognized as the most needy in the country.” Independent Living Center of Southern California v. Maxwell-Jolly,572 F.3d 644, 659 (9th Cir. 2009)
In the Santa Rosa Memorial Hospital case Attorney General Holder DOJ made this administration's position clear that only governments have a say in whether state and federal governments are obeying the law regarding medical care to the needy. A New England Journal of Medicine editorial termed “shocking” the Obama administration's argument that only the Secretary of Health and Human Services has standing to argue that by drastically limiting reimbursements a state is not providing Medicaid patients minimally adequate access to medical treatment:
“In a shocking move, the solicitor general of the United States, representing the Obama administration, has entered the case on the side of the state, arguing that the courts are closed to private individuals where Medicaid-access litigation is concerned and that all power lies with the secretary of health and human services.” Medicaid and Access to Health Care - A Proposal for Continued Inaction? Sara Rosenbaum, J.D. N Engl J Med 2011; 365:102-104,July 14, 2011
Even those who have supreme confidence in the judgments of the Obama administration should understand that the administration's position that the government cannot be challenged in court on whether healthcare is minimally adequate (or whether states may subsidize religion) is dangerous to freedom. For example if two years from now Michigan, Wisconsin, Mississippi or Ohio leave patients without access to any specialists by reducing Medicaid reimbursements by 50% - no one would have the right to bring a lawsuit to assert that access to medical care was denied except the President's Secretary of Health and Human Services. If the White House prevails in its argument Medicaid patients may have to rely upon President Romney or President Bachman's Secretary of Health and Human Services to protect their access to medical care.
The DOJ's positions on standing are a small, even minute portion of the legacy of the Obama Presidency, but the ripples of these positions are unpredictable. No man is above the law and no man is below the law is a longstanding if inconsistently applied Anglo-Saxon legal principle codified in the Bill of Rights. The little guy will probably lose his case most of the time when he confronts the United States government, but the right to appear in court and have one's say is an important part of the American sense of freedom. Florence Reece didn't go to Harvard Law School, but she knew the right question to ask Attorney General Holder and President Obama - “Which side are you on?”