FedSoc Blog

SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam Opinion


by Publius
Posted November 17, 2014, 10:02 AM

SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam OpinionThe Order List is here.

(1) The Court granted cert today in Bank of America v. Caulkett and Bank of America v. Toledo-Cardona.  The question presented in those cases is: "Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral."

(2) The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument was granted in several cases: B&B Hardware v. Hargus Indus., Alabama Dept of Revenue v. CSX Transp., and Hana Financial v. Hana Bank.

(3) Prof. Jeffrey Fisher (Stanford) was appointed counsel in Ohio v. Clark.

(4) The Court issued a per curiam opinion reversing the Ninth Circuit in Glebe v. Frost, a habeas case.  Frost had been convicted of several bank robberies but argued that his state trial court improperly forced him to chose between a theory of duress and contesting criminal liability.  The state supreme court (Washington) agreed, but deemed the error non-structural and ultimately harmless in light of the evidence presented and the proper jury instructions issued.  The District Court dismissed Glebe's habeas petition but the Ninth Circuit reversed, finding structural error  Per SCOTUS' reversal of the Ninth Circuit today:

"Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court of Appeals had power to grant Frost habeas corpus only if the Washington Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Here, the Ninth Circuit held that the Washington Supreme Court unreasonably applied clearly established federal law by failing to classify the trial court’s restriction of closing argument as structural error. That decision cannot stand. Assuming for argument’s sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. Neder v. United States, 527 U. S. 1, 8 (1999). Only the rare type of error—in general, one that “‘infect[s] the entire trial process’” and “‘necessarily render[s] [it] fundamentally unfair’”—requires automatic reversal. Ibid. None of our cases clearly requires placing improper restriction of closing argument in this narrow category."

Categories: SCOTUSreport

SCOTUS Orders: No new grants, one original action, no action on King v. Burwell


by Publius
Posted November 03, 2014, 10:35 AM

SCOTUS OrdersThere were no new cert grants today (though the Court did grant the filing of a complaint in an original action involving the states of Florida and Georgia, see below).  No action was taken on the latest Affordable Care Act case (King v. Burwell)--the Court may be waiting to see what the DC Circuit does en banc. The order list is here.

There were a few notable orders in pending cases:

1) Texas v. New Mexico (original action): A. Gregory Grimsal was appointed special master

2) Florida v. Georgia (original action): Florida's motion for leave to file a bill of complaint was granted.  The question presented is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region.

3) Young v. UPS:  Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted.  The question presented in this case is whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Notable cert denials included: The Episcopal Church v. The Episcopal Diocese of Fort Worth:  Questions presented: (1) Whether the First Amendment or Jones v. Wolf requires courts to enforce express trusts recited in general-church governing documents (as some jurisdictions hold), or whether such a trust is enforceable only when it would otherwise comply with state law (as others hold); (2) whether retroactive application of the neutral-principles approach infringes free-exercise rights; and (3) whether the neutral-principles approach endorsed in Jones remains a constitutionally viable means of resolving church-property disputes, especially in light of Hosanna-Tabor v. EEOC.

Categories: SCOTUSreport

New Post-Decision SCOTUScast: Halliburton Co. v. Erica P. John Fund, Inc.


by SCOTUScaster
Posted July 23, 2014, 1:31 PM

On June 23, 2014, the Supreme Court issued its opinion in Halliburton Co. v. Erica P. John Fund, Inc. This case presented two questions. The first was whether the Supreme Court should overrule or modify its decision in Basic Inc. v. Levinson, to the extent that it recognizes a presumption of classwide reliance derived from the “fraud-on-the market theory,” which posits that a company’s material misrepresentation regarding a security traded in the open market that affects the price of the security is presumed to have been relied on by a plaintiff who purchased the security and suffered a loss; and second whether, in a case where the plaintiff invokes the presumption of reliance to seek class certification, the defendant may rebut the presumption and prevent class certification by introducing evidence that the alleged misrepresentations did not distort the market price of its stock.

In a unanimous opinion delivered by Chief Justice John Roberts, the Court noted that under section 10(b) of the Securities Exchange Act of 1934 and the SEC’s rule 10(b)(5), investors can recover damages in a private securities fraud action only if they prove that they relied on the defendant's misrepresentation in deciding to buy or sell a company's stock. In Basic, the Court held that investors could satisfy this reliance requirement by invoking a presumption that the price of stock traded in an efficient market reflects all public, material information-including material misstatements. Given that Congress can change the law, Halliburton failed to provide the “special justification” necessary for the Court to overrule its prior decision in a statutory case. For the same reason, class action plaintiffs may rely on the Basic presumption to avoid having to directly prove in the first instance that the misrepresentation affected the stock price at the class certification stage. But nothing in Basic or any other Supreme Court decision prevents defendants from defeating this presumption at the class certification stage through evidence that the misrepresentation did not in fact affect the stock price, and courts should give them the opportunity to do so. The Court vacated and remanded the decision of the Fifth Circuit.

To discuss the case, we have Adam Pritchard, who is the Frances and George Skestos Professor of Law at the University of Michigan School of Law.

Click here to view this article on the source site »

Categories: SCOTUSreport

Is Stanley Fish a Generation Behind on Textualism?


by Publius
Posted July 20, 2012, 9:28 AM

At FedSoc's SCOTUSreport site, John Ohlendorf, an Olin-Searle-Smith Fellow at Northwestern University School of Law, responds to Stanley Fish's recent review of Reading Law, a new book Justice Scalia and Bryan A. Garner.  Ohlendorf writes:

Despite his qualms about [Reading Law's] central position, Fish has high praise for the book, which he calls entertaining and “wonderful.” Along the way, he also dispatches Living Constitutionalism as “a form of political gerrymandering rather than as a form of interpretation.”

In this post, I’d like to respond to Fish’s critique. In brief, Fish articulates two lines of attack: 1) Statutory meaning is not “‘in the text’ in the sense Scalia and Garner insist on,” and 2) All interpretation “begins and ends” with “the assumption or specification of an intention without which there would be no text . . . .” Both arguments draw on Fish’s influential body of scholarship dating back to the 1970s; both arguments show their age. The first argument has teeth only against an archaic version of statutory formalism that has been roundly rejected by modern textualists; the second has little relevance to the “second generation” of textualism that has emerged over the last decade. . . .

Read the full post here.

Categories: SCOTUSreport

Did Roberts Underestimate the Effect of His Decision on Medicaid?


by Publius
Posted July 12, 2012, 4:14 PM

At SCOTUSreport, Steven Teles--professor political science at Johns Hopkins and author of The Rise of the Conservative Legal Movement--points to what he believes is a largely neglected aspect of Chief Justice Roberts' decision in the ACA case:

the Medicaid part of the decision, which was probably extracted from some of the liberals as Roberts’ pound of flesh for upholding the mandate, really is a big deal in raw policy terms. At least in the short term, it really throws a monkey wrench in the basic structure of Obamacare, although I’m not quite sure that Roberts appreciated how much. Expansion of Medicaid is, at least in the short term, the most important mechanism in the law for getting to universal coverage, and it would have its greatest impact on reducing the uninsured in states with relatively stingy Medicaid eligibility (like Texas and Florida)—the same states that are now threatening not to participate. That creates a potentially very weird vacuum in those states, between the very poor (and, remember, senior citizens in nursing homes) on traditional Medicaid and those higher up the income scale who will be in the exchanges. You could solve that problem by pulling those who would have been in expanded Medicaid into the exchanges, but I’m not 100% sure that HHS will be able to get away with doing so. Furthermore, the structure of federal-state aid conditionality is at the core of how we’ve chosen to organize a big chunk of the American welfare and regulatory state. While I’m sympathetic to Michael Greve’s argument in his recent, fantastic book The Upside Down Constitution, that this structure is deeply screwed up, it is also quite deeply embedded. If Roberts is using the decision in NFIB v. Sibelius to open up a broader reassessment of federal grants, that would be a very, very big deal.


Categories: SCOTUSreport

Is the Criticism of Citizens United Manufactured Hysteria?


by Publius
Posted July 12, 2012, 7:47 AM

Professor John McGinnins writes at FedSoc's SCOTUSreport:


Critics of Citizens United have intimated that it will result in a huge increase of for-profit corporate independent expenditures. President Obama played to such fears when he claimed in his 2010 State of the Union address that the decision “opened the floodgate for special interests–including foreign corporations–to spend without limit on our elections.”

At the time, it was widely reported that the president was falsely characterizing the decision: Citizens United did not invalidate prohibitions on campaign expenditures by foreigners, be they individuals or corporations. But it is also now clear that not many for-profit corporations make independent expenditures directly on behalf a candidate. Moreover, for-profit corporations give less than 20% of so-called Super PAC money used for independent expenditures for direct support of candidates. And many, if not most, of these donating corporations appear to be shells for individual contributions.  (In my view, Congress and state legislatures should require such shell corporations to disclose the individuals behind them: Citizens United expressly permits disclosure laws). Publicly traded corporations appear to give less than 0.5% of all Super PAC funds. Thus, the amount of for-profit corporate treasury funds being spent in elections as a result of Citizens United represents a very small portion of total election expenditures. Citizens United has not released a floodgate of for-profit corporate independent expenditures. The president was in this respect no better a pundit than he was a legal analyst.

The New York Times recently reported that corporations are giving more to 501(c)(4) “social welfare” organizations, which can use a portion of their funds to run issue advertisements in elections. But this increase has nothing to do with the doctrine of Citizens United. . . .

Categories: SCOTUSreport

Was Roberts Wrong to Apply the Canon of Constitutional Avoidance to the Mandate?


by Publius
Posted July 11, 2012, 7:44 AM

At FedSoc's SCOTUSreport, Georgetown law professor Nicholas Quinn Rosenkranz argues that Chief Justice Roberts should not have applied the "canon of constitutional avoidance" to the individual mandate:

In his ACA decision, Chief Justice Roberts concludes that the individual mandate can be sustained as an exercise of the taxing power, even though he concedes that it is read “more naturally as a command to buy insurance than as a tax.”  His key move is an application of the canon of constitutional avoidance, which he explains as follows: “The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd. The canon applies when a statute is ambiguous—when it can plausibly be read to mean two different things. . . . But the individual mandate is not ambiguous in the same sense that “vehicle” is ambiguous. . . . 

Whether the individual mandate is called a “penalty” or a “tax,” it means what it means and requires what it requires.

So when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense.  This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. . . .

You can read is full post here.

Categories: SCOTUSreport

Citizens United—The Most Important Decision of the Roberts Court?


by Publius
Posted July 10, 2012, 8:59 AM

At SCOTUSreport, Northwestern University law professor John McGinns discusses what he sees as the most important decisions by the Supreme Court under Chief Justice Roberts.  His post begins:

Although it might not be widely recognized, the most important decisions of the Roberts Court to date have been Citizens United v. FEC and American Tradition Partnership v.  Bullock, the case decided in June that reaffirmed Citizens.  Their importance does not lie in what President Obama and much of the press emphasize about them.  The portion of their holdings that permits for-profit corporations to spend money directly advocating the election or defeat of candidates has had little effect on political campaigns. Instead what is crucial about the decisions is that five justices on the Court analyzed political speech at election time through the prism of ordinary First Amendment principles.  One might not think that development extraordinary, except that the dissenters in these cases and campaign finance “reformers” in general want to place election campaigns outside the ordinary protections of the First Amendment.

At stake is nothing less than how much information voters will get and thus how sound our political decisions will be in the long run. . . .

Categories: SCOTUSreport

Announcing the Re-Launch of FedSoc’s SCOTUSreport


by Publius
Posted July 03, 2012, 12:54 PM

The Federalist Society is proud to announce the re-launch of SCOTUSreport.com--a storehouse of news and analysis on the Supreme Court.  Its blog features original commentary, including:

Check it out!

Romney’s Potential High Court Picks?


by Justin Shubow
Posted April 20, 2012, 8:09 AM

Now that Mitt Romney is the presumptive Republican presidential nominee, Reuters reports that speculation as to his possible Supreme Court picks is beginning. Among the frequently mentioned frontrunners are:

Paul Clement, who served as U.S. solicitor general under President George W. Bush and is now a lawyer in private practice, is the favorite of many conservatives. Clement argued last month for the Supreme Court to strike down Obama's 2010 healthcare law, and he is defending laws that ban same-sex marriage and that target illegal immigrants.


Clement, 45, would be "at the top of any short list right now," said Curt Levey, executive director of the Committee for Justice, a group that advocates for conservative nominees.


Asked about Clement, Mary Ann Glendon, a co-chairwoman of Romney's Justice Advisory Committee, voiced "unbounded admiration" for him.


"He's the type of person who fits the mold that the governor has pledged to look for," Glendon said, adding that "it's much too soon to speculate about names."


Mentioned as often as Clement is Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.


Kavanaugh, 47, sits on a court that produced four sitting justices. He has deep roots in Washington, D.C., having worked in the Bush White House and assisted in the 1990s investigation that nearly led to President Bill Clinton's ouster.


Kavanaugh is known for elaborate opinions such as a 65-page dissent he wrote in November exploring how an 1867 tax law barred courts from considering Obama's healthcare law until 2015.


A third possibility, Judge Diane Sykes, is often mentioned as a likely Romney nominee if the next person to leave the Supreme Court is Justice Ruth Bader Ginsburg, the court's senior woman justice. Ginsburg has survived cancer twice.


Sykes, 54, was appointed to a Chicago-based U.S. appeals court in 2004, overcoming Democratic criticism of her record in abortion-related cases. Last year, she pleased advocates for gun rights when she wrote an opinion saying Chicago could not enforce a ban on firing ranges within city limits.


Supreme Court to Hear Texas Affirmative Action Case


by Justin Shubow
Posted February 21, 2012, 3:32 PM

The Supreme Court today granted cert to Fisher v. University of Texas, an affirmative action case.  The Huffington Post reports:

Affirmative action is heading back to the Supreme Court, and this time its prospects for survival are poorer than ever.

The Court announced on Tuesday that it has agreed to hear a challenge to the University of Texas' affirmative action program, which is used in sorting through applications after the automatic admission of all in-state applicants who graduated in the top 10 percent of their high school class.

The state's top 10 percent law was passed as a race-neutral way of facilitating diversity on campus after a federal appeals court in 1996 banned affirmative action in Texas' public universities. Then in 2003, the U.S. Supreme Court -- in a majority opinion written by Justice Sandra Day O'Connor for herself and the Court's four liberals -- approved of certain types of race-conscious admissions practices in higher education for the purpose of achieving a diverse student body. In response, the University of Texas reinstated affirmative action, this time to assess applicants who would not be automatically admitted under the top 10 percent law. . . .

Justice Elena Kagan has recused herself, likely because of her participation in the early stages of the case when she served as U.S. solicitor general.

The Federalist Society recently co-hosted a debate on the case at the Heritage society.  It pitted James Ho and Loren AliKhan versus the Honorable Gail Heriot and Roger Clegg.  The video of the event can be found here.


Categories: SCOTUSreport

Supreme Court Tosses Out Judge-Drawn Texas Redistricting


by Justin Shubow
Posted January 20, 2012, 1:45 PM

CNN reports on an important Supreme Court decision regarding legislative redistricting:

The Supreme Court has tossed out the Texas redistricting map for congressional and legislative seats drawn up a federal court, giving a partial victory to GOP lawmakers.

In an unsigned opinion issued just 11 days after holding oral arguments, the justices said a revised map that differed greatly from the one created by the legislature used ambiguous standards.

"To the extent the [federal] District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of 'the collective public good' for the Texas Legislature's determination of which policies serve 'the interests of the citizens of Texas,' the [district] court erred," said the Supreme Court ruling Friday.

At issue are competing maps for the Texas state legislative and congressional districts – created first by Republican lawmakers that favored their political base, and later by a federal judicial panel to give minorities greater voting power.

The court-drawn map was imposed after Democrats and minority groups in Texas challenged the original plan approved by the GOP-led state legislature.

The political stakes are huge: Texas gains four new congressional seats based on the newly completed census, and this ruling could help determine whether Democrats can wrest control of the House of Representatives from the Republicans.

The legal stakes are just as important – creating standards courts must use when evaluating voting boundaries. This is the latest election-related dispute for the justices this year. Continuing, separate challenges to campaign spending laws and state voter identification laws will soon be presented to the court.

Categories: SCOTUSreport

SCOTUS Unanimously Supports Ministerial Exception in Hosanna-Tabor Ruling


by Justin Shubow
Posted January 11, 2012, 10:44 AM

The Supreme Court just published its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case regarding the "ministerial exception" in employment discrimination law.  As FedSocBlog previously noted, for 40 years, lower courts have held that the First Amendment forbids the government from deciding who may be a religious minister--despite the fact that federal statutes outlawing employment discrimination based on race, sex, age, and disability contain no express exception.

In its decision, the Court unanimously upheld the ministerial exception in the case at hand.  SCOTUS thus ruled against the position of the Obama Justice Department, which had asked the court to disavow the ministerial exception altogether. 

According to the case syllabus (citations omitted):

(a) The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the Eng­lish Crown—would have no role in filling ecclesiastical offices.

(b) This Court first considered the issue of government interfer­ence with a church’s ability to select its own ministers in the context of disputes over church property. This Court’s decisions in that area confirm that it is impermissible for the government to contradict achurch’s determination of who can act as its ministers.

(c) Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship be­tween a religious institution and its ministers. The Court agrees that there is such a ministerial exception. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such ac­tion interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The EEOC and [plaintiff] Perich contend that religious organizations can de­fend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves. Their position, however, is hard to square with the text of the First Amendment itself, which gives spe­cial solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

For FedSoc's previous SCOTUScast on the case by Catholic University Law Professor Mark Rienzi, click here.


Categories: SCOTUSreport

Supreme Court Grants Cert in Obamacare Cases


by Justin Shubow
Posted November 14, 2011, 11:12 AM

The Supreme Court just granted certioriari to the constitutionality of President Barack Obama’s Patient Protection and Affordable Care Act--a/k/a "Obamacare."  The timing could not be better.  On Saturday, at the Fourth Annual Rosenkranz Debate and Luncheon at The Federalist Society's National Lawyers Convention, former solicitor general Paul Clement and Professor Laurence Tribe debated the very question.  It was truly a preview of coming attractions since Clement will be arguing the case before the Supreme Court.

At Above the Law, David Lat provides a summary of their debate, which was moderated by Professor Nicholas Quinn Rosenkranz:

Professor Tribe began by providing some background on the Act. It was signed into law in March 2010 and represented Congress’s attempt to tackle the health care crisis — a crisis that involves some 17 percent of our GDP. He pointed out that health care is unlike other markets because hospitals don’t turn away patients, which means that the health care costs of the uninsured effectively get passed along to everyone else.

The “individual mandate” provision of the Act attempts to encourage coverage by imposing a tax penalty on people who do not buy health insurance. This provision will (1) encourage people to purchase coverage and (2) raise revenue from the people who don’t. It provides an incentive for people to acquire health insurance in advance of when they will actually need care, which is more efficient and effective than the status quo. We know that pretty much everyone will need health care at some point in their lives, so why should we wait until they get injured or sick before we deal with the problem?

Tribe noted, with approval, the decisions by the Sixth Circuit and the D.C. Circuit upholding the validity of the Act. He noted that distinguished conservative jurists such as Judge Jeffrey Sutton (6th Cir.) and Judge Laurence Silberman (D.C. Cir.) have written in defense of the law. He added that even the Eleventh Circuit, which struck down the individual mandate, conceded that the federal government can regulate health care at the time the patient seeks care (because at that point there is indisputably some “commerce” to be regulated).

Opponents of the Act argue that this is like United States v. Lopez, where the Court struck down a law prohibiting people from carrying guns near schools, finding a lack of economic activity. But it is an “economic activity,” according to Tribe, to make other people pay for your health care — which is what ends up happening under the status quo, without the Act.

Tribe concluded his opening remarks by addressing the “slippery slope” arguments made by opponents of the law. He noted that the Act does not force anyone to have any particular medical procedure or change their lifestyle in any particular way (think of the hypotheticals involving government-mandated broccoli consumption). In any event, if it did attempt to do such things, substantive due process concerns would block it.

(This was a Federalist Society event, so substantive due process might not have been the best doctrine to invoke by way of reassurance. But you get his point.)

Clement began his response by emphasizing the “mandate” part of the “individual mandate”: the Act actually orders people to buy health care insurance, a mandate that it happens to enforce with a tax penalty. Even people who are not subject to the penalty — e.g., because they fall below a certain income threshold — are still subject to the mandate (at least as a theoretical matter).

In terms of the relevant market, it should be thought of not as the market for health care, but the market for health care insurance — which people are being forced to buy. They are being forced to purchase it even if they could get by without it. (Maybe you can’t get away without using health care — set aside, for now, Christian Scientists, hermits hiding in the woods, etc. — but you can certainly get away without using health insurance, as millions of people currently do.)

With these observations in mind, what is the Act doing? It is forcing someone to engage in commerce, not regulating commerce that already exists. If this Act is constitutional, according to Clement, the nothing lies beyond the reach of the Commerce Clause — a violation of our federal system, in which the federal government has specific, enumerated powers, not plenary power that touches upon all things.

Under the current system, if you want to avoid federal regulatory power over commerce, you can exercise your right to refrain from engaging in the commerce at issue. Under the Act, however, the federal government can force you to engage in a specific kind of commerce — and then, conveniently enough, regulate that which it has forced you to do.

The primary question with respect to the Act, repeatedly emphasized by Clement throughout the debate, is the following: “What is the limiting principle?” If you look at the Supreme Court’s past Commerce Clause cases, such as Lopez and Morrison, you see that the federal government loses when it can’t state a limiting principle.

If the Act is constitutional, what are the remaining limits on the federal government’s power under the Commerce Clause? If we can force people to buy health insurance, why can’t we force them to buy wheat (cf. Wickard v. Filburn), or force them to buy cars (cf. cash for clunkers)?

In short, Clement concluded, the Act must be struck down. First, it violates the prerogatives of states and the limited nature of federal power (note that Clement represents 26 states challenging the law). Second, it violates individual liberty, by forcing people to engage in commerce against their will. Third, it violates principles of political accountability: if the government wants to raise taxes, which it could be argued is what is really going on here, it should be forced to do so openly and explicitly. (Note how President Obama, in selling the law, denied that it was a tax increase — even though federal government lawyers, subsequently defending the Act, relied in part upon the government’s taxing power.)

In his rebuttal, Tribe questioned whether there was really a difference between “regulating” commerce and “forcing” commerce — i.e., in the process of regulating, the government forces citizens to do certain things. He also emphasized, in a line of reasoning that might appeal to Federalist Society-types, how much political will it takes to pass a law like Obamacare. (In other words, maybe you might not like the Act as a policy matter, but if that’s your problem, you should defeat it through the political process.)

Tribe also noted an interesting point made by Judge Brett Kavanaugh of the D.C. Circuit (who ultimately found no jurisdiction to rule on Obamacare at the current time, pursuant to the Anti-Injunction Act). Judge Kavanaugh noted that the health care law would be clearly constitutional if, instead of “mandating” the purchase of health insurance, it simply operated as nothing more than a tax penalty, telling the citizen, “It’s your choice: you can purchase health insurance, or you can take a hit come tax time.” In Tribe’s view, this is really what the Act effectively does, and so it should be upheld for this reason.

Clement responded by agreeing that yes, there are constitutional ways to achieve the same policy goals as the Act — which is all the more reason why the Constitution should be respected, and the Act should be struck down and then passed in a form that would pass constitutional muster. (Of course, given the current composition of Congress — which changed significantly after the Act was signed into law in March 2010, thanks to the midterm elections — that’s not terribly likely.)

Who won the debate? It depends on how you score it. Clement was the more skillful debater — he’s had a lot of practice, arguing against the Act in the lower courts — but Tribe made many strong points as well, and I came away from the debate thinking that SCOTUS will probably uphold the Act.

This is a view shared by a number of observers, such as Professor (and former Kennedy clerk) Orin Kerr, who told Joan Biskupic of USA Today that he thinks AMK will vote to uphold, based on his prior writings. And it makes a certain amount of sense based on reading the circuit-court tea leaves; well-respected conservative jurists like Judges Sutton and Silberman have voted in favor of the Act.

But, of course, the Supreme Court isn’t bound by its own Commerce Clause precedents in the way that lower courts are bound by them. And thanks to Clement’s excellent advocacy, I now realize the question posed to SCOTUS is far closer than I originally thought. It will be very interesting to see how the justices rule — and very interesting to see the political consequences of their ruling, which should come a few short months before the 2012 presidential election.

Categories: Multimedia, SCOTUSreport

New Post-Decision SCOTUScast: American Electric Power Company v. Connecticut


by SCOTUScaster
Posted July 15, 2011, 2:57 PM

Listen to the audio here.

Megan L. BrownOn June 20, 2011, the Supreme Court announced its decision in American Electric Power Company v. Connecticut.  The question in this case was whether "the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority)."

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 8-0 that "[t]he Clean Air Act and the Environmental Protection Agency action the Act authorizes . . . displace the claims the plaintiffs seek to pursue." Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan joined Justice Ginsburg’s opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor took no part in the consideration or decision of the case.

To discuss the case, we have Megan L. Brown, who is a partner at Wiley Rein LLP. Ms. Brown is on an amicus brief in support of the petitioners.

Click here to view this article on the source site »

Categories: Multimedia, SCOTUSreport




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