Noa Ben-Asher, Obligatory Health
The federal courts have begun to rule on the constitutionality of the Patient Protection and Affordable Care Act (“the Act”) passed in March 2010. The decisions thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act’s “individual mandate” to purchase health insurance. As these legal challenges move through the courts, the public debate would benefit from a clearer understanding of the underlying rights-claims and their alternatives.
This Essay offers two principle contributions. First, the Essay argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between liberty and equality. At a time when scholars are emphasizing the convergence of liberty and equality, the health care debates accentuate the friction between these two foundational principles of American jurisprudence. Second, the Essay offers an alternative to the rights-based orientation of both liberty and equality claims: the perspective of individual obligation. The Essay develops an account of obligation from the work of the late Robert Cover. In an essay published shortly before his untimely death, Cover contrasted the American rights-based legal system with the Jewish obligation-based legal system. An approach grounded in obligation demonstrates why the individual mandate is more than a necessary evil, but is instead a foundational element of the Act. Moreover, understanding the Act in terms of individual obligations toward the basic medical care of others not only supports the individual mandate in principle; this approach also offers a novel account of its constitutionality under the Supreme Court’s “substantial effects” test. In this light, opting out of the healthcare market is not only decisional activity—as supporters of the legislation have argued—it is also ethical activity, against a backdrop of individual obligation.
Landon Magnusson, Tying off All Loose Ends: Protecting American Citizens from Torture Beyond America's Borders
In the United States, the law prohibits the government from torturing its citizens. U.S. law also prohibits the government from sending its citizens to another country where they would likely be tortured. These two scenarios seemingly covered all possible ways that the U.S. government could bring about the torture of its own citizens—until Munaf. In Munaf v. Geren, 128, S. Ct. 2207 (2008), the Supreme Court posed an intriguing question: Does the law also forbid the U.S. government from transferring custody of an American citizen to a country that will likely torture him, when the U.S. government was maintaining custody of that citizen within, and at the permission of, the torturing country? This article seeks to definitively close this possible loophole through two points of attack. First, it looks to emerging theories on the extraterritorial application of the Constitution and concludes that Fifth Amendment Substantive Due Process extends beyond America’s borders to protect her citizens from any government action that would lead to their torture. Second, this article explores the federal law that ostensibly leaves open the possibility for torture and, after analyzing its drafters’ intent as well the international conflicts that a pro-torture interpretation would cause, concludes that it any loophole found is false.
Mac Darrow, Lies, Damned Lies, and the Millenium Development Goals: Human Rights Priorities for the Post-2015 Development Agenda
In September 2010, world leaders met for the High Level Plenary Meeting on the Millennium Development Goals (“MDGs Summit”). The Summit attracted high level participation from Member States, launched a number of important aid initiatives, and the Summit Outcome document reflected an unprecedented consensus by Member States of the importance of human rights for efforts to achieve the MDGs. The present paper critically appraises the MDGs and World Summit Outcome document from a human rights perspective, as the basis for recommendations on how human rights could be positioned to better effect in negotiations towards the post-MDGs development agenda.
In the first part of the paper the author examines the history, impacts and ongoing significance of the MDGs in re-framing and re-focusing international and national poverty reduction efforts and policies. The paper then surveys the main conceptual and methodological problems relating to the existing global MDGs monitoring framework, relating these to a deeper analysis of the political economy of the international development debate, informed by the incipient efforts of international donor agencies to re-define sectoral monitoring frameworks, targets and indicators. This sets the stage for an analysis of the human rights implications of the World Summit Outcome document of September 2010, as an aid to assessing the international community’s cognisance of the gaps in the existing MDGs edifice, and its willingness to address them in a successor global development agreement.
The prospects for a successful post-2015 global partnership for poverty reduction will depend, in part, on forging more effective cross-disciplinary coalitions and communities of practice, building the theoretical and evidence bases for a constructive synthesis between human rights and MDGs-based development policy-making. Hence the penultimate part of the paper offers a conceptual framing apt to accommodate divergent disciplinary perspectives on the relationship between human rights and development, with a particular focus on the comparative contributions to policy-making of human rights and welfare economics. The paper rejects the dominant narrative of the “value added” of human rights to development policy-making in favour of a more embracing, even if non-prescriptive, conceptual framework that accommodates both deontological and consequentialist perspectives.
The paper concludes by venturing a set of substantive and process-related parameters that should guide the reformulation of a post-2015 global poverty reduction compact, positioning human rights arguments and identified priorities clearly and strategically within an increasingly challenging constellation of threats to international human rights and underlying ethics of global social justice.
NOTE FROM THE FIELD
Charles Tiefer, Jonathan W. Cuneo & Annie Reiner, Could this Train Make it Through?: The Law and Strategy of the Gold Train Case on Behalf of Holocaust-Era Victims
Jeremy Kaplan-Lyman, A Punitive Bind: Policing, Poverty and Neoliberalism in New York City
Justin Zaremby, On the Uses and Disadvantages of History for Human Rights Law: A Review of Samuel Moyn’s The Last Utopia: Human Rights in History