June 2012

  • June 29, 2012

    by Jeremy Leaming

    Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”

    Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.

    But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.

    Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.  

    But that did not happen. And some constitutional law scholars say that fact should not be ignored.

    Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.

    As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”

    Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”

  • June 28, 2012
    Guest Post

    By Aaron H. Caplan, a law professor at Loyola Law School Los Angeles

    The “Stolen Valor Act” is a federal statute that made it a crime to falsely say that one had received a military medal, even if that false statement was not made as a part of any scheme to counterfeit or defraud and even if no one believed the statement. In United States v. Alvarez, a 6-3 majority of the Supreme Court agreed with the 8-1 majority of my First Amendment students that the Act violates the constitution. The government has power to punish lies that cause concrete harms (such as fraud, defamation, or perjury), but it may not punish lies simply because they are distasteful. The proper response upon hearing distasteful lies is to counter them by speaking the truth.

    I believe – like a majority of my students – that the Court decided this case correctly, but the reasoning used by a majority of Justices has the potential to establish constitutional standards that are less speech-protective than meets the eye. To begin with, there was no majority opinion. The four-justice plurality opinion by Justice Kennedy (joined by Roberts, Ginsburg and Sotomayor) was joined by a two-justice concurrence by Justice Breyer (joined by Kagan). Both opinions seemed to readily accept the notion that the government had a valid interest in controlling what people think about military medals as a means to protect the “integrity” or reputation of the government’s chosen symbols. As I have written previously, I do not think this kind of mind control is a legitimate government interest at all, let alone a strong one. In this, I seem to be outvoted by all nine members of the Supreme Court (and for what it was worth, all of my students).

  • June 28, 2012

    by Jeremy Leaming

    As expected the House of Representatives voted to find Attorney General Eric Holder in contempt of Congress for allegedly withholding documentation about the federal government’s troubled operations, dubbed “Fast and Furious,” to curb violence related to drug smuggling along parts of the nation’s Southwest border.

    The charge to tar Holder has been led by U.S. Rep. Darrell Issa (R-Calif.), who spends large amounts of his time tending to his business holdings back home. Though the Department of Justice has provided nearly 8,000 documents to a House committee, Issa, one of Congress’s wealthiest members, has continued to claim there must be more, and that the government is covering up the bungled efforts, which started during the previous administration.

    House Minority Leader Nancy Pelosi (D-Calif.) was among nearly 100 House Democrats who walked out of the chamber in protest of today’s vote. Earlier this month, Pelosi blasted the Republicans’ hounding of Holder as rooted in their opposition to the Department of Justice’s efforts to ensure that new state restrictions on voting do not violate the Voting Rights Act.

    “These very same people holding in contempt are part of a nationwide scheme to suppress the vote,” Pelosi said. “They are closely aligned with those who are suffocating the system, special interests, secret money, and they are poisoning the debate. They are poisoning the debate with money.” TPM has video of Pelosi’s comments here.

    The New York Times in a June 21 piece noted the fairly obvious – that most recent attorneys general have faced partisan attacks.

    Nonetheless, The Times conceded, “Holder has become a recurring target for conservative anger because he is associated with some the administration’s more liberal policies. They include reinvestigating Bush-era torture allegations, using the civilian criminal justice system for terrorism cases, refusing to defend the law banning federal recognition of same-sex marriage, challenging Arizona’s crackdown on illegal immigrants and invoking civil rights laws to block voter ID measures.”  

  • June 28, 2012
    Guest Post

    By Adam Winkler, Professor of Law, UCLA. This piece first appeared on The Huffington Post.

    Today's Supreme Court is often referred to as Anthony Kennedy's Court. Although Kennedy is the swing justice who usually casts the deciding vote in close cases, the landmark ruling this week in the healthcare cases clearly marks the maturation of the "Roberts Court."

    Chief Justice John Roberts was the surprising swing vote in today's Obamacare decision. Although he agreed with the four conservative justices, including Kennedy, that the individual mandate was not a regulation of interstate commerce, he voted with the Court's moderates to hold that it was justified as a tax. Because people who don't obtain insurance pay a tax to the IRS, the mandate was within Congress's power to raise taxes for the general welfare. As a result, the Affordable Care Act was upheld.

    With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there.

  • June 28, 2012

    by Jeremy Leaming

    Chief Justice John Roberts saved the nation’s top court from going over a cliff, barely. While a majority of the justices found the Affordable Care Act constitutional, they did so largely on Congress’s power to “lay and collect” taxes.

    The Court’s majority opinion, however, found that the minimum coverage provision was not a regulation of commerce. The majority opinion also held that Congress can expand Medicaid coverage, but that it “is not free” to “penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."

    ACS President Caroline Fredrickson praised the decision, saying:

    The U.S. Constitution and the American people won an important victory before the nation’s high court today. The Supreme Court wisely resolved the health care case, despite all the political posturing on the right. Chief Justice Roberts’ majority opinion for the Supreme Court, upholding the Affordable Care Act’s integral ‘minimum coverage’ provision, has allowed for progress providing health care for tens of millions of Americans. It remains to be seen what the impact will be of Chief Justice Roberts’ understanding of the difference between ‘activity’ and ‘inactivity’ under the Commerce Clause.

    The Obama administration argued that the ACA’s integral provision, the minimum coverage provision, which requires some Americans to purchase health care coverage starting in 2014 or pay penalty on their income tax filings, was valid under the Constitution’s commerce clause and the constitutional power of Congress to tax and spend.