The Court will announce its healthcare ruling on Thursday. Tom Goldstein, founder of Scotusblog, said after this morning’s opinions were issued that, in light of the Court’s informal division-of-labor routine, and based on which justice wrote which of today’s majority opinions, it looks pretty clear that (as everyone has been predicting all along) Roberts will write the majority opinion in the healthcare case, possibly (Goldstein said) with assistance from Kennedy. In other words, it’s likely that Roberts will write the part of the majority opinion that addresses the individual mandate and related penalty and that Kennedy may write the majority opinion on at least one of the other three issues in the case.
Interestingly, at least to me, veteran LA Times Supreme Court correspondent David Savage has
an article today in which he offers the possibility that—er—
I’m right. Here’s the relevant excerpt from Savage’s article:
The healthcare case has been fiercely debated as a test of whether Congress can require individuals to buy health insurance under its power to regulate commerce. Opponents have likened it to forcing Americans to buy
healthy food, such as vegetables.
Lurking in the background is a way to decide the case on tax law grounds. No one can be prosecuted, punished or fined for violating the mandate. In fact, the word “mandate” does not appear in the law. In “practical operation,” the administration argued, it’s just a tax law.
If the mandate is really just a tax, that would be supported by the Constitution, which says Congress “shall have the power to lay and collect taxes … to provide for the common defense and general welfare.”
So, in the end, the justices could agree the law’s required tax payments are constitutional, while also making clear the government does not have broad power to mandate purchases.
Late last year, Judge Brett Kavanaugh of the U.S. Court of Appeals in Washington, an influential appointee of President George W. Bush and a friend of the chief justice, wrote an opinion arguing for treating the mandate as a tax law, not a regulation of commerce.
During oral arguments in March, the conservative justices sounded highly skeptical of giving the government the power to mandate purchases. But at one point, liberal Justice Sonia Sotomayorasked whether it would be constitutional for Congress to assess a tax for health insurance and include an exemption for everyone who had insurance.
“The government might be able to do that,” said Paul D. Clement, the lawyer for the Republican states suing to overturn the healthcare law. If so, the liberals asked, why can’t Congress require people to have private insurance or pay a tax penalty?
Having the law upheld on tax grounds would be a big win for the president.
(In my June 15 post, I paraphrased Sotomayor’s question and erroneously attributed it to either Roberts or Kennedy. I said I couldn’t remember which of the two had asked the question, which is no surprise since neither of them did. Ah; I should have known.)
Now on to today’s big rulings. The most significant—
and it is huge—is a
big surprise. In a 5-3 opinion (Kagan did not participate) written by Kennedy and joined by Roberts in
Arizona v. United States, the Court struck down on “federal preemption” grounds almost all of the major provisions in Arizona’s stop/demand-citizenship-papers/detain-upon-suspicion-of-being-an-illegal-alien all Hispanic-looking-or-sounding-folks law. “Federal preemption” is a legal doctrine, based on the Constitution’s Supremacy Clause, that bars states from enacting laws that conflict with a federal statute or that intrude into a policy area in which the Constitution grants the federal government sole control (e.g., national defense and foreign policy) or in which a federal statute indicates Congress’s intent to make federal statute the sole arbiter in that area of policy.
On the only remaining major provision—which appears to allow the detention by state prison officials of anyone arrested on other grounds, in order to allow the officials to verify the person’s citizenship—the Court rule that it is too early to know whether or not federal law preempts that provision, because the state courts have not yet “interpreted” it. The opinion makes clear, though, that if the state court interprets the provision to permit a detention or an extension of a detention in order to enable the citizenship check, this provision, too, likely would be preempted. And the opinion says explicitly that even if the state court interprets the provision narrowly enough to survive preemption on the grounds argued in this case, the provision may be preempted on other grounds or it may violate another provision of the Constitution. In a separate lawsuit, the law is being challenged on Fourteenth Amendment equal protection (racial profiling) and due process grounds.
UPDATE: Here’s an outstanding discussion of the Arizona-statute opinion at Scotusblog.
The other major ruling today in a fully briefed and argued case—two cases, actually; one from Alabama, the other from Arkansas—extended the Eight Amendment’s bar to cruel and unusual punishment to strike down as unconstitutional state statutes that mandate life imprisonment without possibility of parole when the statute is applied to minors. This was a 5-4 opinion written by Kagan and joined by Kennedy.
In the final ruling of broad significance, the Fab Five summarily reversed (i.e., without full briefing and oral argument) the Montana Supreme Court in the case in which that court had upheld the constitutionality of a longstanding Montana campaign-finance statute despite Citizens United. I had called this one wrong in postings on AB, saying that I thought the Court would agree to hear the case, but a week ago I realized that I probably was wrong. The Court had initially scheduled its decision for last Monday on whether or not it would hear the case next term. When it put off its announcement until today, I knew what that meant.
The dissent, written by Breyer and joined by the other Dem appointees, says that while they had the minimum number of votes (four) to force full briefing and oral argument, the four decided not to do so because they recognized that there was no chance that any of the other five would vote differently if the case were argued. I think the four should have forced full argument next term, not because there was a chance that one of the five would switch sides—there was not—but because this case would have educated the public about a critical fact that most of the public probably does not know: that in Citizens United, the 5-4 majority didn’t hold that the First Amendment speech grounds are absolute—a ruling that would have required them to expressly overrule the Court’s longstanding election-law precedents—but instead based its ruling on a “finding” of utterly fabricated and baseless fact. The 5-4 majority simply declared, based on nothing at all, that they “find” that unlimited campaign “expenditures” by outside individuals, groups and corporations does not “give rise” to corruption or to the appearance of corruption.
Had the Court been forced to have a full hearing on the Montana case, complete with oral argument, the public would have learned that in election-law cases, this 5-4 majority simply fabricates facts and casually varies the standard under which the Court can strike down a statute as unconstitutional, depending on what is required for the majority rule in a way that (significantly) helps Republican candidates. In CitizensUnited, for example, the majority not only decided on its own to raise the issue of the constitutionality of the campaign-expenditure limitations in the McCain-Feingold law, a tactic that violates the Court’s own procedural norms and, in that instance, its own Article III “jurisdictional” precedents;* they also required that Congress have vast, specific evidence that unlimited expenditures cause corruption or the appearance of corruption, and then denied the government the opportunity to gather and present that evidence, instead simply coopting for themselves the writing of the “facts.” Yet, in a case a few years ago that challenged the constitutionality of a state law that required a government-issued photo ID in order to prevent voter fraud, the 5-4 majority required no evidence whatsoever by the state that widespread voter fraud existed—and ignored the evidence that such voter fraud is almost nonexistent.
In my opinion, it is this aggressive but quiet altering of procedural and standard-of-review law in cases that could affect election outcomes, in a manner that baldly favors Republican candidates either directly or indirectly, that makes this 5-4 majority so dangerous. But for the moment, I’ll rejoice in the outcome of the two opinions in argued cases that I discussed above.
And on Thursday, we’ll learn whether Savage and I are right or whether instead almost everyone else is.
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*The part of that sentence that reads “a tactic that violates the Court’s own procedural norms and, in that instance, its own Article III “jurisdictional” precedents” was added for clarity on 6/26.
First deflower her, then devour her, heh?
I continue to be amazed, afraid, of the ability of the lawyers to embrace any “reason” that helps their case and to ignore any reason that doesn’t.
If the government has the power to tax us to pay for health care (and remit the tax for those who have private insurance), then the government needs to provide the health care it taxes us for.
This is NOT the same as requiring we buy health insurance on the private market and enacting a tax penalty for those who don’t.
But hell, it’s only a game, right?
Whoa, coberly. What do you mean by, “If the government has the power to tax us to pay for health care (and remit the tax for those who have private insurance), then the government needs to provide the health care it taxes us for”? The government taxes to pay for Medicare—which is healthcare insurance, but it does not provide the healthcare to Medicare recipients, if, by “providing the healthcare,” you mean providing the doctors and the hospitals rather than just financial access to doctors and hospitals.
“… instead simply coopting for themselves the writing of the “facts.” Yet, in a case a few years ago that challenged the constitutionality of a state law that required a government-issued photo ID in order to prevent voter fraud, the 5-4 majority required no evidence whatsoever by the state that widespread voter fraud existed—and ignored the evidence that such voter fraud is almost nonexistent.”
Thus, if I were Montana, I would pull a Florida and give the ruling the flying fickled finger of fate award and proceed as if the ruling never happened. Turn it into a “try to make me” moment. If the state does it, then the people nation wide will see just how far the conservative mind is willing to go to achieve the social order they invision. Maybe the south will feel like they are getting a second whack at the civil war.
I expect the healthcare decision to be they can’t require it’s purchase but can fine/tax its non purchase making the whole matter moot.
whoa beverly.
you might have guessed what i meant was “pay for it.”
like most people, i don’t want the gummint doing my brain surgery.
but like most people, i’d like the gummint to pay for it.
and unlike most people, i understand that would mean i would have to pay taxes to pay for it.
but unlike some people i don’t think a penalty is a tax.
Lord, lord
i’m not sure that’s what moot means… it would still be a mandate, which is the issue.
i’m waiting for the first person to go to jail for not paying his “tax.” so beverly can tell me
“No one can be prosecuted, punished or fined for violating the mandate.”
I know this will sound like splitting hairs, but the “No one can be prosecuted, punished or fined for violating the mandate” statement refers only to the mandate, not to the failure to pay the penalty/tax. The argument is that you’re being offered a choice of getting healthcare insurance or instead paying a small fee/tax, but the fee/tax is not a fine (much less a criminal fine) but instead simply the option you chose rather than obtaining the insurance.
But, yes, if you didn’t get the insurance and didn’t pay the penalty/tax, you could be prosecuted—just like if you improperly didn’t pay FICA tax, you could be prosecuted.
Actually, that’s pretty much what the Montana Supreme Court was doing when it issued that opinion. The Fab Five “made them” today in their decision. But the Montana Supreme Court did make their point–and their point got a lot attention nationwide. It would have gotten much more attention, though, if the four dissenting justices had force the Court to set the case for full briefing and oral argument next term. I so wish they had done that.
no it’s not “just like FICA.” i pay my FICA “tax” directly to the government and the government provides me with a service, to wit, retirement and other insurance.
the mandate requires me to go to a private business and agree to be screwed or pay a penalty disguised as a tax or go to jail.
it’s worse than “splitting hairs.” it is cynicism of the kind, if not order, of “first deflower her,then devour her.”
but this has been a very instructive lesson for me. there is no such thing as logic. and there is no twist people won’t put in their minds in order to arrive at the conclusion they think they favor.
Well, considering the Supreme used state’s rights regarding immigration and not state’s rights regarding the state’s own elections, it is the state of Montana the needs to give the award and not their court. And I hope they do. Now it becomes the state vs the Fed DOJ. Let’s see how far those in power of the White House are willing to go against the people.
Daniel, the DoJ argued against the outcome in Citizens United, and Obama has publicly criticized that opinion. I don’t think the DoJ filed a friend-of-court brief in the Montana case, but, clearly, the administration would not want to do anything to support enforcement of Citizens United—nor would it have the legal authority to do that.
Actually, now that I think about it, I don’t think the ACA makes clear what the enforcement mechanism is if you don’t get insurance and don’t pay the penalty, which is supposed to be paid to the IRS along with your tax payment, due on April 15 each year.
Actually, now that I think about it, I don’t think the ACA makes clear what the enforcement mechanism is if you don’t get insurance. The penalty/tax is owed by April 15 each year and is paid to the IRS along with your tax payment or filing, but I’m virtually certain that the ACA doesn’t make failure to pay it a crime, so it is different than failure to pay income taxes or FICA taxes. So I was wrong in saying that you coukd be prosecuted for failure to pay it.
I’m saying Montana should continue with it’s law, screw the ruling and see what the Fed will do.
It’s a dangerous situation, but with the types of ruling of the Supremes, we are eccentially a lawless nation. It’s not the western town lawless that most would expect from TV, but it is lawless non the less. That being the case, Montana can push the issue.
Some would say I’m suggesting 2 wrongs making a right. Not at all, but that is the “danger” I am aware of. If Montana truly wants to stop/prevent what we have with Citizen’s, then they keep their morally and socially correct law in place.
well, if there is no penalty, then no one will pay it.
to tell you the truth, i have been wondering how they are going to make it work. i suspect when they find out how many people can’t come up with an extra five thousand a year for health insurance, they are going to wish they hadn’t even started.
No, they can claim it is not a mandate but a privilege that must be paid for. These are lawyers. Substance matters less than form.