The Chief Justice’s opinion finds an interesting middle ground in the battle of absolutes over the Affordable Care Act. Under the Chief Justice’s opinion, real economic mandates are beyond the power of Congress. Congress can’t force action where there was none. Congress can’t say you must act or else go to jail, for example. The […]
Archive | June, 2012
Larry Solum on the Individual Mandate Decision
Georgetown law professor Larry Solum has an excellent post on the mandate decision, much of which I agree with: Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law. In the extraordinarily unlikely event that there had been a majority opinion authored by one of the […]
And in really important Supreme Court news . . .
The Court dismissed First American Financial Corporation v. Edwards as improvidently granted.
Was the Dissent Originally a Majority Opinion?
The four-Justice dissent, at least on first quick perusal, reads like it was originally written as a majority opinion, [something Larry Solum also noticed] (for example, he refers to Justice Ginsburg’s opinion as “The dissent”) [update: Ginsburg did in fact technically dissent on the Commerce Clause issue, but I think it’s unusual to refer to […]
Initial Thoughts on the Health Care Ruling
The full set of opinions, with the syllabus, total 193 pages. I’m not sure if that’s a record, but it’s up there. The primary dissent is a joint dissent by all four dissenting justices. This is unusual. Their dissent rejects both the individual mandate and the Medicaid expansion. Because these two provisions are central to […]
Tax or Not a Tax
I’m wondering whether a close reading of the opinions will somehow persuade me that the individual mandate can be a “tax” for constitutional purpose, but “not a tax” for Anti-Injunction Act purposes (an anomaly that occurred to me immediately, and not surprisingly is raised in Justice Scalia’s dissent).
The Chief Justice’s Opinion
The mandate opinions are here. The Chief’s opinion is the main one, even though he doesn’t have a majority on all parts. Notably, Roberts begins with nice discussion of the role of federalism and the courts, presumably intended for the public audience that will read the opinion. On the mandate, the Chief then goes on […]
The Perils of Shortsightedness
As readers now now, the Court has upheld the ACA 5-4, with Roberts in the majority. As I noted several times on this blog, the Bush Administration had one primary criterion for its judicial nominees: whether a nominee was likely to vote in favor of the government in War on Terror cases. I know, for […]
Whither the Medicaid Expansion?
Like all of you, I am still waiting to get a copy of the actual opinion. But from the reporting of our friends at SCOTUSBlog, it sure sounds like the Medicaid expansion just became essentially voluntary for the states because the federal government can no longer use the “stick” of cutting off pre-existing funds to […]
So Everybody Gets Something
Based on the thread at SCOTUSblog, it sounds like everybody gets something from the Health Care Cases. Liberals get the law being upheld 5-4 under the taxing power; conservatives get the mandate being held beyond the Commerce Clause power. More when we get to read the opinion, which hasn’t been posted yet.
This may be relevant for some of you
.
Stolen Valor Act Struck Down
By Jonathan H. Adler on June 28, 2012 10:19 am in First Amendment, Freedom of Speech, Knowingly False Statements of Fact
In United States v. Alvarez the Supreme Court has held that the Stolen Valor Act is unconstitutional. Justice Kennedy wrote for the Court, joined by the Chief Justice, and Justices Ginsburg and Sotomayor. Justice Breyer, joined by Justice Kagan, concurred in the judgment concluding the law is unconstitutional as written, but also suggesting that a […]
The Mandate Upheld as a Tax
We do not yet have the mandate opinion (or at least I don’t). But apparently it was upheld on a 5-4 vote, with Chief Justice John Roberts joining the four liberal justices. Much more surprisingly, it was apparently upheld on the grounds that it is a tax. This was the least likely basis for a […]
“The individual mandate survives as a tax.”
So reports SCOTUSblog. That’s kind of funny, given that it’s the one argument we didn’t focus on much. Feel free to comment below. UPDATE: Goldstein reports: “So the mandate is constitutional. Chief Justice Roberts joins the left of the Court.” “The bottom line: the entire ACA is upheld, with the exception that the federal government’s […]
SCOTUSBlog
Most court watchers will get news of the Court’s decision today from SCOTUSBlog. Appropriately, the Washington Post profiles this invaluable resource this morning.