Saturday, June 30, 2012

Props to Verrilli

In Scorned after oral arguments on healthcare, Verrilli emerges a winner, David G. Savage of the L.A. Times congratulates Solicitor General Donald Verrilli on his litigation strategy in the health care case - specifically, for making a strong case that the law was a constitutional exercise of Congress' power to tax under the General Welfare Clause. I agree with Savage and extend my gratitude to the S.G. for his efforts defending this landmark legislation. Although quoted in an earlier post, On Liberty: Kennedy and Verrilli in Oral Argument over Health Care (March 29, 2012), Verrilli's eloquent closing remarks to the Court bear repeating:

Responses of Advocacy Groups to Health Care Decision

This post contains reactions from several professional and advocacy organizations to the ruling of the Supreme Court upholding the Affordable Care Act.

Friday, June 29, 2012

Are National Market-Based Legislative Solutions Now Unconstitutional?

Although a majority of the Supreme Court upheld the Affordable Care Act yesterday under the Tax and Spending Clause, five justices - Justice Roberts in obiter dictum and four other justices in dissent - expressed their opinion that the enforcement mechanism of individual mandate of the Affordable Care Act was unconstitutional under the Commerce Clause and the Necessary and Proper Clause. In contrast, had Congress simply expanded Medicare to cover everybody it would have been perfectly constitutional under the Spending Clause. Think for  a moment about what that means.

Thursday, June 28, 2012

How the Supreme Court Upheld the Individual Mandate: It Is and Is Not a "Tax"

In Part II of his opinion upholding the Affordable Care Act, Chief Justice Roberts concluded that the individual mandate is not a "tax" within the meaning of the federal Anti-Injunction Act. However, in Part III-C of his opinion he found that the mandate is a "tax" for purposes of the General Welfare Clause. How could he reach both of those conclusions?

Chief Justice Roberts' Opinion in ACA Case - Introduction

The introductory portion of Chief Justice Robert's opinion reads like a primer on constitutional law. The Chief Justice lays out the basic structure of our constitutional system, including quotations from the two  foundation cases in constitutional law authored by the great Chief Justice John Marshall: Marbury v. Madison and McColloch v. Maryland.

Link to Decision in Health Care Case

Here is the link to the decision of the Supreme Court upholding the PPACA.

2011-2012 Supreme Court Term: Decision in the "Stolen Valor" case, United States v. Alvarez (First Amendment)

By a vote of 6-3, the Supreme Court struck down the "Stolen Valor Act."  Four Justices led by Justice Kennedy struck down the law under strict scrutiny, and two justices employed intermediate scrutiny. Here are the previous entries I posted in the case summarizing the case generally, describing the respondent's attack on the law at oral argument, and describing the government's defense of the law at oral argument.

The decision of the Court is available here. I will post an analysis of the Court's opinion later today.

Affordable Care Act Constitutional!

Reports are now coming in that the Supreme Court has upheld the individual mandate of the Affordable Care Act. With respect to Medicaid expansion, it is being reported that the Court has ruled that while Congress may offer the States expanded funding to cover more individuals, it may not take away existing funding if a state refuses to cover more persons.

When the decision becomes available I will post an analysis.

Monday, June 25, 2012

2011-2012 Supreme Court Term: Decision in Armour v. Indianapolis (Equal Protection)

On June 4 the Supreme Court issued its decision in Armour v. Indianapolis, an equal protection case involving a disparity in the forgiveness of outstanding tax indebtedness. By a vote of 6-3, the Court upheld the action of the City of Indianapolis, and ruled that its decision to forgive outstanding assessments for a sewer improvement program was constitutional. The decision may be accessed here.

Thursday, June 7, 2012

Wednesday, June 6, 2012

From War to Criminal Justice

The war against Iraq was an actual war. The war against al-Qaeda and the Taliban is an actual, ongoing war. However, the War on Terror is a metaphor, like the "War on Drugs" or the "War on Crime." The war against al-Qaeda is drawing to a close, and like most other wars in American history the United States will be victorious. Large-scale terrorism has proven to be a failure. Within the next few years, with the cooperation of the world community, we should return to treating terrorism as a crime.