Garrett Epps

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.comHis book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.

Recent Articles

Pre-Game's Over. Now Begins the Health-Care Fight.

(Flickr/FadderUri)
What if you bought a ticket to The Hunger Games and ended up watching Life Cycle of the Soybean ? That may describe the feelings of bemused citizens listening to today’s recorded oral argument on the first of three days of hearings in the case against the Affordable Care Act. Instead of death panels and broccoli patrols, they got to hear a discussion for law nerds about statutory construction and the definition of “tax.” The staggeringly dull question: Does the Anti-Injunction Act (AIA), which prohibits taxpayers from suing the government until after they have paid a tax, prohibit the Court from hearing the health-care case at all? The resulting argument was abstruse, brilliantly conducted, and, well, snooze-worthy. The careful ear, however, could pick up the sound of the approaching guns. The health-care Armageddon arrives in full red-and-blue fury tomorrow. Today was just the opening shot. Read literally, the AIA would seemingly require the challengers to wait until 2014—when the...

Now Is the Law of Their Discontent

(Flickr/S.E.B.)
To paraphrase Ecclesiastes, of the making of many briefs there is no end, and much study is a weariness of the flesh. My flesh is weary after weeks of poring over the party and amicus briefs in the Affordable Care Act cases, which (in case you haven’t heard) will be argued next week. There are four overall issues in the case: (1) is the minimum-coverage requirement (or “individual mandate”) a permissible use of the Commerce Power? (2) If not, should the Court strike down the entire Act or only the minimum coverage requirement? (3) Is the bill’s requirement that states receiving Medicaid funds expand eligibility for low-cost health-care “coercive” to state governments? And (4) is the entire lawsuit against the “minimum coverage” provision barred by the federal Tax Anti-Injunction Act until after the provision takes effect in 2014 and some taxpayer has been forced to pay the tax penalty for not carrying health insurance? If those don’t seem to flow in logical order, they don’t—(4)...

Precedents for the Unprecedented

(Flickr/thesussman)
Here are quotes from an anguished brief filed with the United States Supreme Court: “the present statute . . .departs markedly from any prior statute sustained as an exercise of the commerce power. . . .” It “is incapable of being regarded as within the scope of any of the other statutes or decisions.” Further, “there is no statutory precedent to support the Solicitor General's position in this case.” That position “is founded on a concept of the interstate commerce clause which has never been recognized by the Courts. While the wisdom of legislation is a matter for the Congress it is within the Court's proper prerogative to look with deep concern at an assertion of power never heretofore upheld.” That brief was filed in the 1964 case of Katzenbach v. McClung. Two months later the Supreme Court decided that Congress did have the power to “regulate commerce” by requiring Ollie’s Barbecue, a family restaurant in Birmingham, Alabama, to serve African-Americans in its dining room. But the...

The History of Florida's "Stand Your Ground" Law

(Flickr/seweccentric)
Seventeen years ago, in Springfield, Oregon, a local mechanic went into a fast-food restaurant, walked up behind a man eating lunch, and shot him to death in the back of the head. A local grand jury refused to indict the shooter. There had been no altercation, no sign that the man shot was carrying a weapon. But the shooter believed that the victim had threatened his daughter. And the dead man was, in the words of the local district attorney, “a violent man, a drug dealer by trade.” Maybe the shooter should have left it to the police, the district attorney said, but the victim should also have “moderated his behavior.” I offer this tale as background to the shooting of Trayvon Martin in Sanford, Florida, and the ensuing debate about self-defense law. George Zimmerman, a neighborhood-watch volunteer, thought the black teenager was a suspicious presence in a gated neighborhood. Disregarding police instructions, Zimmerman pursued and confronted the young man minutes before killing him...

Throwaway People

(Flickr/Tim Pearce)
“You're making a 14-year-old throwaway person.” Justice Ruth Bader Ginsburg’s phrase fell into the Supreme Court chamber with an ominous clang, like the sound of metal doors slamming. Not surprisingly, Kent Holt, an assistant Arkansas attorney general, tried to mute the clang. Speaking of Evan Miller, who committed murder at 14 and is now challenging his sentence of life without parole, Holt said, “I'd respectfully disagree that he's a throwaway person.” “What hope does he have?” Justice Sonia Sotomayor asked. Well, Holt responded, he could ask for a commutation of his life-without-parole sentence. He cited a 1979 Arkansas case stating that 30 such requests had been granted in the five years before. This seemed like a slim hope when Bryan Stevenson, Jackson’s lawyer, rose to rebut Holt. Commutations had become rare in the last 30 years, he said: Since 2007, there has been only one. The gates of Dante’s Hell carried the inscription, “Abandon all hope, ye who enter.” For thousands of...

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