Law

The Unsurprising Possibility that the Court Could Strike Down the ACA

Wikimedia Commons.
I was somewhat surprised, prior to this week's oral arguments, how optimistic some of my favorite legal and political observers were about the outcome of the Affordable Care Act case being argued at the Supreme Court this week. The court, predicted Dahlia Lithwick , "will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market." Linda Greenhouse foresees the Supreme Court upholding the law "by a wide margin." Kevin Drum also sees a 7-2 vote in favor of the ACA. Jon Chait argues that the law is clear, and acknowledges a chance the Supreme Court would simply ignore the law in the way they did in Bush v. Gore . I view things differently. I think there is a very real chance that the Court would strike down the law, and while I personally find these arguments exceedingly unpersuasive they're not "wrong" in the sense that they...

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...

A Decision Is Coming

A crowd of protesters outside the Supreme Court on the first day of ACA hearings (Photo: Patrick Caldwell)
The Supreme Court opened hearings today on the Patient Protection and Affordable Care Act—PPACA if we're going to be technical—but more commonly known as Obamacare. The six hours slotted for oral arguments are spread out across three days, and while the constitutionality of the individual mandate is the main issue at stake, there will be a host of other topics discussed, ranging from severability (whether the rest of the law can stand if the mandate is struck down) to whether Congress was within its bounds when it redefined Medicaid eligibility to include swaths of new people currently uninsured. I was outside the court this morning talking with protesters rallying for and against the bill (more on that to come later) but Prospect alum Adam Serwer was inside for Mother Jones listening to the judges debate the first issue at hand: can they even decide on the qualms with the law or do they need to wait until after 2014 when ACA is fully in effect? According to the 1867 Tax Anti-...

Will the Supreme Court Duck Health Care?

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The great legal theorist Alexander Bickel advocated that courts use "passive virtues"—that is, using invented jurisdictional reasons to not hear politically contentious cases. The political scientist Mark Graber has tweaked this concept to describe passive-aggressive virtues —the tendency of the great Chief Justice John Marshall to expound on his theories of constitutional law while deciding cases on grounds that left opponents no means of opposing the Court (usually because they ended up with the policy they wanted.) In an intriguing article for Slate, David Franklin argues that the Roberts Court could duck the constitutional challenge to the Affordable Care Act using these methods. The Court, Franklin notes, could simply decide not to decide by holding that the legal challenge to the ACA is prohibited by the Tax Anti-Injunction Act . This would keep the court out of the political firestorm for the time bring while refusing to give Obama a political victory by clearly declaring the...

The Supreme Court, Health Care Reform, and Electoral Politics

(Flickr / TimmyGUNZ)
Last week I participated in a roundtable that on these issues, along with other GW faculty from public health and law—Sara Rosenbaum, Peter Smith, and Katherine Hayes—as well as former U.S. Senate Finance Committee staffer Mark Hayes and former House Commerce Committee Health Subcommittee Counsel Andy Schneider. You can find a synopsis here and the video here . My remarks centered on implications of health care reform for the 2012 election (as I previously wrote about here ). How might the Court’s decision affect the politics of the issue for the election? First, it’s likely that the Court’s decision—no matter what it is—won’t much affect overall public support or opposition to the Affordable Care Act. Court decisions often simply polarize approval—as in this study of Roe v. Wade. There are already early indicators that this will happen. In a March 2012 Kaiser Family Foundation poll , respondents were asked how they would feel if the court rules the individual mandate unconstitutional...

The Affordable Care Act On Trial

Flickr/DonkeyHotey
Today the Supreme Court begins hearing oral arguments to determine the constitutionality of the Affordable Care Act. It's the timid (or maybe wise) pundit who fears making predictions, so I'll go ahead and say this: the Court is going to uphold the ACA, by a vote of 6-3. Chief Justice John Roberts will join the four liberal justices and Anthony Kennedy in the majority, and Roberts will write the decision. Justices Scalia, Thomas, and Alito will offer a vigorous and at times comically overstated dissent, in which they will decry the end of the freedom that universal health coverage will bring. That may just be optimism talking; I've certainly allowed my hopes to outrun good sense before. There's a voice inside me that says "Don't forget Bush v. Gore !" In other words, the Court is perfectly capable of acting in a nakedly partisan manner if it so chooses, so the five conservatives could well decide that the opportunity to undo a Democratic president's signature domestic policy...

Single-Payer and the Supreme Court

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When the Supreme Court begins its extraordinary three days of hearings on the constitutionality of the Affordable Care Act, one of the oddities will be an amicus brief challenging the act’s individual mandate from 50 doctors who support national health insurance. They point out the inconvenient truth that, contrary to the administration’s representations, the government did not need to require citizens to purchase insurance from private companies in order to meet its goals of serving the health-care needs of the populace. Congress could have enacted a single-payer law. Since the Constitution unambiguously gives Congress the power to tax, there has never been a serious constitutional challenge to our tax-supported systems of health insurance, Medicare, and the services of the Veterans Health Administration system. In the words of the brief: Amici thus submit this brief for the purpose of disputing the primary tenet of the Government’s position, that Congress cannot regulate 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...

"That's Specious Reasoning, Representative"

Illinois Urban Landscapes Project, via Flickr Creative Commons.
Many of you will know this classic scene from The Simpsons , when Homer celebrates the expensive "Bear Patrol" created by city government as an overreaction to a single bear getting into the city: Homer: Not a bear in sight. The Bear Patrol must be working like a charm. Lisa: That's specious reasoning, Dad. Homer: Thank you, dear. Lisa: By your logic I could claim that this rock keeps tigers away. Homer: Oh, how does it work? Lisa: It doesn't work. Homer: Uh-huh. Lisa: It's just a stupid rock. Homer: Uh-huh. Lisa: But I don't see any tigers around, do you? [Homer thinks of this, then pulls out some money] Homer: Lisa, I want to buy your rock. [Lisa refuses at first, then takes the exchange] Another person who would like to buy Lisa's rock is Florida state representative Dennis Baxley: "Every time you have an adverse incident, immediately the anti-gun faction will say this law is the problem," Baxley, a Republican, said, adding that violent crime in Florida has dropped since its...

Hard Work Doesn't Pay for Home-Care Workers

Home-care workers aren't casual babysitters, and it's time to make sure they don't get paid like one.

(Flickr/Steve Rhodes)
Say you’ve got a booming industry, one that already employs 2 million workers in the U.S. and is poised to add 1.3 million additional jobs by 2020. Imagine that the jobs cannot be off-shored, that the work helps decrease federal deficits, and millions of Americans depend on the industry just to get through their daily lives. Now ask yourself: Should it be legal to pay the workforce of this thriving and essential industry less than the minimum wage? Currently, it’s perfectly licit. A loophole in the Fair Labor Standards Act of 1938 exempts home-care workers—employees who provide personal care to the elderly and disabled in their homes—from basic work protections like the minimum wage and overtime pay. The rationale, according to the National Employment Law Project (NELP), was that people providing “companionship services” to seniors and people with disabilities were like casual babysitters. But this exemption, NELP points out, was never meant to include the extensive housework...

The Roberts Court Joins the War On Women

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When Daniel Coleman asked for sick leave from his job at the Appeals Court of Maryland, he was told he would be fired. The state's actions violated the Family and Medical Leave Act (FMLA), passed by Congress in 1993. Unfortunately, thanks to the Roberts Court, Coleman has a right without an appropriate remedy. A bare majority of the Supreme Court held Tuesday that while Coleman's statutory rights were violated, he cannot sue the state of Maryland for damages. Once again, the conservatives on the Supreme Court have prioritized "states' rights" over human rights. Sometimes, a bad policy outcome resulting from a Supreme Court decision is a compelling or at least clearly reasonable application of sound constitutional principles. Coleman v. Maryland Court of Appeals , however, is not such a case. In order to produce this unjust result, the Court had to rely on a double-header of bad legal arguments. First, it applied a "states' rights" doctrine with no basis in the text of the Constitution...

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...

Walking While Black

AP File Photo
I’m sick to my stomach about the Trayvon Martin shooting that Jamelle Bouie mentioned here yesterday. Over the weekend, Charles Blow at The New York Times (once again, my favorite columnist) wrote : Trayvon had left the house he and his father were visiting to walk to the local 7-Eleven. On his way back, he caught the attention of George Zimmerman, a 28-year-old neighborhood watch captain, who was in a sport-utility vehicle. Zimmerman called the police because the boy looked “real suspicious,” according to a 911 call released late Friday. The operator told Zimmerman that officers were being dispatched and not to pursue the boy. Zimmerman apparently pursued him anyway, at some point getting out of his car and confronting the boy. Trayvon had a bag of Skittles and a can of iced tea. Zimmerman had a 9 millimeter handgun…. One other point: Trayvon is black. Zimmerman is not. Trayvon was buried on March 3. Zimmerman is still free and has not been arrested or charged with a crime…. As the...

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