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    Tag: Commerce Clause

    Dissecting a Coffeehouse Combination


    By Kevin Rex Heine, Section News
    Posted on Thu Jul 05, 2012 at 06:45:55 PM EST
    Tags: Patient Protection and Affordable Care Act, NFIB v. Sebelius (11-393), HHS v. Florida (11-398), Florida v. HHS (11-400), Individual Mandate, Medicaid Expansion, Commerce Clause, Necessary and Proper Clause, Taxing and Spending Powers, Tenth Amendment, separation of powers, checks and balances, elections have consequences, Anti-Injunction Act, shared responsibility payment, severability (all tags)

    I think that, prior to last weekend, most everyone reasonable was expecting that the Supreme Court was going to rule both the Individual Mandate and the Medicaid Expansion of the Patient Protection and Affordable Care Act an unconstitutional overreach of Congress' enumerated powers, specifically with regard to the Commerce Clause, the Necessary and Proper Clause, and perhaps even the Tenth Amendment.  The only question would then become whether or not severability (or lack thereof) would give SCOTUS the necessary leverage to send Barry Obama's "signature achievement" down in flames.  (That latter result seems to have been clearly anticipated by Speaker Boehner's "don't spike the ball" memo from 21 June.)  But then, at around 10:07 a.m., on 28 June 2012, . . . well, we'll get to that.

    To say that in the immediate aftermath opinions have varied as to what, exactly, John G. Roberts, jr., 17th Chief Justice of the United States, was thinking when he sided with the four hardcore liberals on the court in upholding the individual mandate (albeit as a tax) is probably an understatement.  Yes, I absolutely agree with those who hold that Chief Roberts should have sided with the other four conservative associates (Scalia, Kennedy, Thomas, and Alito) and eviscerated BHO's signature achievement, thus officially rendering his first year in office a complete waste of time.  However, having taken the time to dissect the opinion as best as my non-legal expertise will provide, I'm rather inclined to believe that Chief Roberts is a masterful chess player, at least politically.  As to why I think that way . . . well, let's go below the fold and discuss that.

    In advance, I should probably warn you that this is going to get a bit lengthy, so you might find a fresh pot of coffee useful.  This also may require more than one read-through, for the same reason.


    (8 comments, 9076 words in story) Full Story

    Understanding the Health Care Litigation, Part Two


    By The Wizard of Laws, Section News
    Posted on Tue Mar 27, 2012 at 12:05:35 AM EST
    Tags: Affodable Care Act, Anti-Injunction Act, Commerce Clause, Filburn, health care, individual, mandate, Necessary and Proper, Obamacare, Supreme Court, tax. penalty, Wickard (all tags)

    Cross-posted in The Wizard of Laws.

    Round one is over, and the world waits anxiously for round two tomorrow in what is the most important Supreme Court case since Brown v Board of Education, and maybe since Marbury v Madison.

    Today's Arguments

    Today the Supreme Court heard arguments on whether it should or should not decide the health care cases because of the federal Anti-Injunction Act.  This law, passed in 1867, essentially provides that a tax cannot be challenged until it is paid.  One court found that, since the penalty (the alleged "tax") imposed by the Patient Protection and Affordable Care Act (ACA) for not buying health insurance does not take effect until 2014, and since therefore no one had been forced to pay the tax yet, the challenge to the law is not yet "ripe" for decision.  

    All the parties challenging the law and the federal government agreed that the the case is ready to be decided, so the Supreme Court had to appoint an attorney, Robert Long, to argue that the the Anti-Injunction Act barred the proceedings.  Things didn't go too well for him.

    From the questioning, it was fairly apparent that the justices want to reach the merits of the ACA litigation.  Justice Sotomayor asked Mr. Long to describe the "parade of horribles" that would occur if the court decided to reach the merits.  Much fumbling ensued, leading Justice Scalia to observe "there will be no parade of horribles."  Justice Breyer pointed out that the statute calls it a penalty, not a tax, and Justice Ginsburg observed that it is not a revenue-raising measure since, if everyone obeys the law, there will be no revenue associated with the penalty.

    When the Solictor General, Donald Verrilli, argued that the penalty is not a tax, Justice Alito snagged him with the conflicting positions taken by the Administration.  To get the case heard, Verrilli argued the penalty is not a tax; but to get the law upheld, Verrilli argues the penalty is a tax, an inconsistency upon which Justice Alito seized:

    General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
    So what was Verrilli's answer to that?  It turns out, the same words can mean different things on different days:

    Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

    Based on the tenor of the questioning, I think there is little doubt the court will brush aside the Anti-Injunction Act in order to get to the meat of the case.

    (11 comments, 1229 words in story) Full Story

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