FedSoc Blog

On the issue of severability and the individual mandate, Hadley Arkes commments at Right Reason (H/T Bench Memos):

The conservative justices may be inclined then, in prudence, to back into Burke’s dictum that "refined policy is ever the parent of confusion": it may be better, in a clean stroke, to sweep away the entire statute. And yet there are real temptations here, marked by H.L. Mencken’s line: that democracy is a system in which people should be given what they want—"good and hard." Is it severability that the liberals really crave? Some of us can be forgiven for being half-ready to give them what they want. And scaring them with the possibility of giving them what they want may be the surest way of delivering them from their appetite, to cling to the wreckage that remains.

On March 28, 2012, the Supreme Court heard oral argument in Fla. v. Dept. of Health and Human Services and Nat'l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  Both cases raise the question of severability--namely, whether the remainder of the Healthcare Act still survives if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional.

Both cases further raise the question whether Congress may lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion.  That issue will be the subject of a separate podcast.

To discuss the issue of severability, we have David Rivkin, a partner at Baker Hostetler, and Ian Millhiser, a policy analyst at the Center for American Progress.

Click here to view this article on the source site »

BLT: The Blog of Legal Times reports on back-to-back decisions awarding damages against Iran for its support of terrorism against Americans in the early 1980s:

U.S. District Chief Judge Royce Lamberth yesterday ordered (PDF) a $44.6 million judgment against the Iranian government for its role in the 1983 terrorist bombings at the U.S. Marine barracks in Beirut, Lebanon. The ruling came a week after Lamberth issued a $33.3 million judgment against Iran in a similar case.

In both cases, Lamberth found Iran liable for the bombing in 2010. Since then, a special master has been sorting out the damages claims. Lamberth has handled a number of civil claims in U.S. District Court for the District of Columbia related to the 1983 bombings; he issued a $1.2 billion judgment against Iran in one of those cases in December.

The bombing killed 241 people and injured many more. Iran was accused of supporting the militant Lebanese group Hezbollah, which was believed to have carried out the attack.

On March 26-27, 2012, the Supreme Court heard oral argument in U.S. Department of Health and Human Services v. Florida, one of three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  This case presents the question whether Congress has power under the Constitution to require that virtually all Americans either obtain health insurance or pay a penalty.  This requirement is commonly referred to as the individual mandate.  

The case also raises the question whether the Anti-Injunction Act prohibits a challenge to the validity of the Healthcare Act until the individual mandate takes effect in 2014.  This question was the subject of a separate podcast.

To discuss the individual mandate we have Ilya Somin, professor at the George Mason University School of Law, and Orin Kerr, professor at the George Washington University Law School.

Click here to view this article on the source site »

On February 21,  the Supreme Court announced its decision in Howes v. Fields.  The question in the case was whether a prisoner who was removed from the general prison population for the purpose of being questioned about outside events was “in custody” during his interrogation, and therefore entitled to Miranda warnings.

In an opinion delivered by Justice Alito, the Court held by a vote of 6-3 that, under the facts of this case, the prisoner was not “in custody” for Miranda purposes.  Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Kagan joined Justice Alito’s opinion.  Justice Ginsburg filed an opinion concurring in part and dissenting in part, which was joined by Justices Breyer and Sotomayor.

To discuss the case, we have Mark Brnovich, Director of the Arizona Department of Gaming and a former federal and state prosecutor.

Click here to view this article on the source site »

Professor Eugene Volokh calls attention to a recent Second Amendment decision in North Carolina:

Bateman v. Perdue (E.D.N.C. Mar. 29, 2012) involves a North Carolina law that bans “transport[ing] or possess[ing] off [one's] own premises any dangerous weapon” when a state of emergency has been declared. “Due to natural disasters and severe weather, states of emergency are declared with some frequency in North Carolina. In 2010, for example, the Governor … issued four statewide emergency declarations and one declaration covering a fifteen-county area ….” There were also at least six local states of emergency declared. All five of these 2010 states of emergency were in response to weather conditions, and the frequency of such declarations may stem from the fact that “[a] state of emergency must be declared in order to qualify for federal disaster assistance.”

The court concluded that:

1. The right to keep and bear arms extends to carrying outside one’s property, for self-defense and for other reasons. The law interferes with the exercise of this right.

2. The law also interferes with the exercise of people’s right to defend themselves in their homes, because it bars people from buying weapons and them transporting them to their homes.

3. The law must therefore be considered under strict scrutiny, because it isn’t just limited to high-risk gun possessors, to particular kinds of guns, or particular manners or times of carrying guns, and because it interferes with getting guns even for home defense (though, as I noted, the court also concluded that carrying guns for defense outside the home is also generally constitutionally protected).

4. The law fails strict scrutiny, because they “excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them … from engaging in conduct that is at thev ery core of the Second Amendment at a time when the need for self-defense may be at its very greatest” and therefore aren’t narrowly tailored to serve the government’s compelling interest in public safety.

Regarding the severability of the Obamacare individual mandate, The Wall Street Journal editorializes:

Justice Ruth Bader Ginsburg said [Paul] Clement is asking the Court to conduct "a wrecking operation," before stating that "the more conservative approach would be salvage rather than throwing out everything." The Obama Administration didn't say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.

But Justice Anthony Kennedy doubted Justice Ginsburg's logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress "did not provide for, did not consider." To wit, costs would soar without any mechanism to offset them.

"When you say judicial restraint," Justice Kennedy said, "you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite." Overturning the mandate alone, he continued, "can be argued at least to be a more extreme exercise of judicial power than to strike the whole."

Justice Antonin Scalia chimed in to note that severing would require the Justices to comb through ObamaCare's 2,700 pages and pick out the parts that are connected to the mandate and those that aren't—essentially asking them to play omniscient time travellers, if not legislators. Striking it down altogether would paradoxically be a gift of judicial modesty by avoiding the legal invention of a new law. A clean slate gives Congress the most options.

As Mr. Clement argued, the best analogy is the Court's misbegotten 1976 Buckley decision, which struck down some campaign finance provisions but not others and has led to a hash of contradictory and ambiguous rules for political speech that continues to this day.

On March 26, the Supreme Court heard oral argument in U.S. Department of Health and Human Services v. Florida, one of three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, also known as Obamacare or the Healthcare Act.  The case presents the question whether the Anti-Injunction Act prohibits challenges to the validity of the Healthcare Act until certain of its provisions take effect in 2014.

We have Kevin Walsh, professor at the University of Richmond Law School, and Steve Johnson, professor at the Florida State University College of Law, to discuss the case.

Click here to view this article on the source site »

Listen to the audio here.

Having attended the third and final day of oral arguments in the Obamacare case, Professor Randy Barnett discussed them in this special Federalism & Separation of Powers Practice Group Teleforum call.  Professor Barnett said that possibly the most important thing in the hearings today was that nothing happened that undermined the positive takeaway the challengers came away with after day two.  He explained further that it appeared, as it did yesterday, that the case is likely to be decided 5-4 in favor of the challengers or no worse than 6-3 for the government.  He found that none of the justices expressed interest in the claim that the individual mandate could be severed from the remainder of the Affordable Care Act.  Even Justice Breyer referred to the mandate as the "heart of the act," which was the language used by Paul Clement, who represented the challengers.  According to Barnett, the four conservative justices who asked questions seemed to accept the argument that the mandate could not be severed without the Court engaging in the kind of legislative inquiry it is not equipped for.  Justice Scalia led the charge on that issue.

Featuring:

• Prof. Randy E. Barnett, Georgetown University Law Center and architect of the Individual Mandate Challenge
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Washington Post today featured an interview with Professor Neal Katyal regarding the Obamacare Supreme Court hearings.  While serving as acting solicitor general for the Obama administration from May 2010 through June 2011, Katyal successfuly defended the Affordable Care Act in front of the Sixth Circuit Court of Appeals.

Sarah Kliff: Tell me a bit about how we’ve seen this case develop. At the very start, these legal challenges to the Affordable Care Act were written off as frivolous. Now, after two days of oral arguments, many think the Supreme Court will strike down the health care law.

Neal Katyal: It’s not surprising that the Court is taking these challenges seriously. They’re going to take any challenge they agree to hear seriously. I think it was predictable that we would see this litigation, since there was even a constitutional point of order raised in the Senate on these issues.

These are arguments that have been in circulation for awhile. I think one of the hardest things about constitutional law is that there aren’t clear answers to questions. There’s some room for discretion on the part of the judges. I think the challengers have done a masterful job at using those discretionary arguments, and blending them with policy concerns, in the lower courts. . . .

SK: I wanted to go back to something you said earlier, about the opponents of the law doing a “masterful” job with the arguments they used. What do you mean by that?

NK: The constitution is very short. It’s about 3,000 words, so it makes a great outline of what federal power looks like but doesn’t get into the specifics. There’s room to make certain arguments, even if they’re not directly supported within the text of the constitution. I think the challengers have framed this as an issue of individual liberty, and one of the government forcing individuals to buy private products, and I do think that’s very innovative. In 230 years, the Supreme Court has never accepted such an argument. So what they’re doing is asking for a new rule.

At Bench Memos, J. T. Young explains what he believes to be the Madisonian basis for Justice Anthony Kennedy's pointed questions to the government in the Obamacare trial:

Justice Anthony Kennedy went to the heart of the constitutional question by raising whether Obamacare was an “unprecedented act” — one which “changes the relationship between the federal government and the individual in an important way.”

Madison, the “Father of the Constitution,” would have no doubt. Madison and the Constitution’s other authors put great store not simply in the document itself, but that it fundamentally altered how America’s government would be connected to its citizens.

The Articles of Confederation, which preceded the Constitution, were just that: a confederation of individual states. Outweighing all the Articles’ many shortcomings, the Constitution’s framers saw its ultimate failure as springing from this: The nation’s citizens were entirely separated from it.  It was the states that were the direct participants in the national government. Individuals participated in it through the states, but not directly.

This left the nation’s government dependent on the states to do its bidding, which they all too often did not.

Of all the things the Constitution set out to rectify, this was its fundamental one. The Framers intended to give the new national government limited but direct access to its citizens. The result was not just a hybrid, but an unprecedented political product. As Madison wrote in Federalist Paper 39: “The proposed Constitution . . . is, in strictness, neither a national nor a federal Constitution, but a composition of both.”

Threading its way carefully between individuals and states, the Constitution strictly spelled out the government’s role and limited its relationships with both.  The Constitution’s Bill of Rights, a precondition of its ratification, further strictly defines these limits.  Because the new government had a new relationship with its citizens, the first eight of this first ten amendments were all are limits on the new government’s intrusion on the people. . . .

Time and again, Madison assures the reader that the new government’s power would be limited — particularly on the citizens, which the nation’s government was to reach directly for the first time.

In Federalist Paper #45, Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined…[these] will be executed principally on external objects as war, peace, negotiation, and foreign commerce . . .”

On February 21nd, the Supreme Court announced its decision in Marmet Health Care Center, Inc. v. Brown.  The question in the case was whether the Federal Arbitration Act (“FAA”) preempted a determination by West Virginia courts that, as a matter of state public policy, pre-dispute arbitration agreements are not enforceable with respect to claims made against nursing homes for injury or wrongful death resulting from negligence.

In a unanimous per curiam opinion, the Court vacated the decision of the West Virginia Supreme Court of Appeals, holding that the state public policy was preempted by the FAA.  The high Court also remanded the case, however, so that the West Virginia court could determine whether the arbitration agreement at issue was otherwise unenforceable under state common law principles that are not specific to arbitration.

To discuss the case, we have Christopher Kratovil, a litigation partner at Dykema Gossett.

Click here to view this article on the source site »

At the Volokh Conspiracy, Orin Kerr offers his analysis of yesterday's Obamacare hearing:

1) This was a huge day for the challengers to the mandate. The challengers have an uphill battle because they need to sweep all four of the Republican nominees who are potentially in play — Roberts, Alito, Scalia, and Kennedy. Based on today’s argument, it looks like all four of those Justices accepted the basic framing of the case offered by the challengers to the mandate. In particular, they all seem to accept that a legal requirement of action is quite different from a legal requirement regulating action, and that therefore the expansive Commerce Clause precedents like Raich did not apply to this case. That was the key move Randy Barnett introduced, and the four key Justices the challengers needed seemed to accept it. Just as a matter of precedent, that doesn’t seem to me consistent with Wickard v. Filburn, which stated that “[t]he stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” But putting aside precedent, the four key Justices all appeared to accept Randy’s basic framing. That was an enormous accomplishment for the challengers.

2) Based on today’s argument, I think it’s a toss-up as to which side will win. My sense is that Scalia is very clearly against the mandate, and Alito seemed to lean that way. Roberts also seemed more on the anti-mandate side than the pro-mandate side. It’s a cliche, but the key vote seems to be Justice Kennedy. . . .

3) If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror.

Listen to the audio here.

Having attended the second day of oral arguments in the Obamacare case, Professor Randy Barnett reported on them in this special Federalism & Separation of Powers Practice Group Teleforum call.  According to Professor Barnett, four of the justices were uniformly critical of the government's argument, and he was happy to see that they "used all of the arguments we've been making in our briefs since the very beginning."  By contrast, four other justices seemed skeptical of the case against the Affordable Care Act.  This divided court, he explained, was good news since it shows that this is not an easy or frivolous case, as some defenders of the Act have been claiming.  Professor Barnett also noted that Justice Kennedy made two significant points early to the government: 1) since the mandate is a major expansion of the government's powers, doesn't the government bear a substantial burden in justifying that expansion, and 2) if the power to mandate the individual purchase of insurance is upheld, it would change the fundamental relationship between citizens and their government.

Featuring:

• Prof. Randy E. Barnett, Georgetown University Law Center and architect of the Individual Mandate Challenge
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

This Thursday, March 29th, FedSoc's Washington, D.C. Lawyers Chapter will be hosting it monthly luncheon.  The guest speaker is Pete Williams, NBC News Justice Correspondent, who will be discussing "The Affordable Care Act in the Supreme Court." Here are the details:

Start : Thursday, March 29, 2012 12:00 PM

End   : Thursday, March 29, 2012 1:30 PM

Registration: The cost is $15.00 for members and $20.00 for guests.

Space is limited, so please register online now.

Please call (202) 822-8138 with any questions.