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.

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.

Why the Courts Must Presume that Economic Legislation is Constitutional

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess the political branches in the determination of national economic policy.

I promised that today I would explain why the courts lack that power. There are two reasons. First, the courts are not institutionally equipped to undertake the complex analysis necessary to the establishment of economic policy. Second, the courts are not democratically authorized to balance and compromise the economic interests of different segments of our society.

2011-2012 Supreme Court Term: Oral Argument by Amicus Curiae on the Anti-Injunction Act

The Supreme Court heard oral argument today on the issue of whether the Anti-Injunction Act applies to the individual mandate of the Affordable Care Act.  The transcript of oral argument is available here.  The bottom line is that it looks like the Supreme Court will proceed to the merits and decide whether the individual mandate of the Affordable Care Act is constitutional.