Stasis and Change, Myth and Reality, Belief and Faith

Let me begin by confessing that I am a stargazer.

Hunting Demographics

Today's post includes information about how many people hunt in America, and what the demographic profile of that group is. These statistics are taken from the 2011 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation issued by the U.S. Fish and Wildlife Service.

Balancing the Budget: Plan B Fails, Speaker Boehner's Choices, and President Obama's Budget for FY 2013

Speaker John Boehner's "Plan B" did not garner enough support to pass the House. What's next?

Guns and the Culture of Violence

In the wake of the mass shooting of children in Newtown, Connecticut, Wayne LaPierre, Director of the National Rifle Association, claimed that the problem in our society is not the easy access to weapons capable of such bloodshed but rather our culture - specifically, depictions of violence in movies and on television. I think Mr. LaPierre is right in part, but he misses the point. Guns are a part of the larger cultural problem in this country - a culture of violence.

The Second Amendment, the Right of Self Defense, and Gun Control

In District of Columbia v. Heller and McDonald v. Chicago the Supreme Court ruled that the Second Amendment confers at least a limited right for an individual to possess a gun.What are the implications for the constitutionality of gun control laws?

A Response to Justice Scalia

At Princeton yesterday Justice Antonin Scalia asked why we can't have moral feelings against homosexuality the way we have moral feelings against murder, asserted that the Constitution is not a living document but is "dead, dead, dead, dead," claimed that there is nothing in the Constitution about the death penalty or abortion, and said that it is necessary to interpret the Constitution in conformity to the words used and their meanings at the time they were written. Here is my response to each of these assertions.

Supreme Court Agrees to Review Same-Sex Marriage Cases - But Questions Whether the Laws' Supporters Have Standing

Big news today on same-sex marriage.

Judge Jones' Opinion in Nevada Same-Sex Marriage Case (Part 2 - Use of Precedent)

In yesterday's post (Part 1) I discussed how Judge Jones neglected to analyze the fourth element of suspect class analysis and refused to discuss the extensive scientific evidence demonstrating the equality of gay and lesbian couples. Today's post critiques Judge Jones' use of precedent and his failure to honestly confront the real purpose behind the Nevada law banning same-sex marriage.

Judge Jones' Opinion in Nevada Same-Sex Marriage Case (Part 1 - The Fourth Element of Suspect Class Analysis)

The opinion of Nevada Federal District Court Judge Robert Jones upholding a Nevada law prohibiting same-sex marriage is deficient, disingenuous, and disturbing. It is deficient in that he neglected to apply a key element of the law of Equal Protection and he ignored a massive amount of historical and social science evidence about sexual orientation that bears upon that point. It is disingenuous because it mischaracterizes and misapplies the previous relevant case law. It is disturbing because of the language he chose to use in framing his opinion.

Love Defeats Hate

The presidential election of 2012 presented a clear choice between love and hate.

Karl Rove's "Smaller Percentage" Argument Not True

Dylan Byers of Politico reports that Karl Rove appeared Fox News two days after the election and asserted:

This will be the first president re-elected to a second term with a smaller percentage of the vote than he got in the first term.

After his national television debacle disputing the clear result in Ohio on election night, one would think that Mr. Rove would strive for a little accuracy - particularly with respect to a discrete and easily checked fact that is at the core of his area of expertise, presidential election results. But he did not.

Polls and Predictions on the Eve of the Election

Here are links to polls and predictions three days before the election.

How Much Would a State Lose If It Opts Out of the Expansion of Medicaid under the ACA?

The Affordable Care Act seeks to achieve universal health care coverage by expanding Medicaid and by granting funding to low income persons and families to purchase health insurance. In NFIB v. Sebelius decided June 28, 2012, the Supreme Court ruled that the states must be given the opportunity to "opt out" of the expansion of Medicaid contained in the Affordable Care Act. How much money would a state lose if it chooses this route? It appears that it would cost the average state about $1 billion annually to forego expanding Medicaid. What else would it lose? Competitive advantage.

Romney: "My job is is not to worry about those people. I’ll never convince them they should take personal responsibility and care for their lives.”

There is nothing "conservative" - or redeeming - about the statements Mitt Romney made at a private fundraiser in May.

Palm Center Study on Effect of Repeal of Don't Ask Don't Tell on Military Readiness

The Palm Center has published its study One Year Out: An Assessment of DADT Repeal’s Impact on Military Readiness. Over the course of six months the Center visited military units and interviewed hundreds of servicemembers, including "553 generals and admirals who predicted that repeal would undermine the military, to all major activists and expert opponents of DADT repeal and to 18 watchdog organizations, including opponents and advocates of repeal, who are known for their ability to monitor Pentagon operations." The result - The Center found that allowing gays and lesbians to serve openly in the military has not reduced military readiness, and may instead have improved morale.

Online Legal Education

I spent most my summer learning how to teach online. The bottom line - in an online class I can cover more material and my students can learn it more effectively. However, this method of teaching and learning is not for everybody.

On the Passing of Art Modell

When I was 14 my family and I watched the Browns beat the Colts 27-0 to win the NFL championship. Dr. Frank Ryan was at quarterback; Paul Warfield and Gary Collins at receiver; Ernie Green at running back; Leroy Kelly was running back kickoffs and punts; on the offensive line were Dick Schafrath, John Wooten, and Gene Hickerson; on defense, Galen Fiss, Jim Houston, Vince Costello, Jim Kanicki, Dick Modzelewski, Bill Glass, Bob Gain, and Paul Wiggin played on the line and at linebacker; from his cornerback position Bernie Parrish directed the aggressive play of the defensive backs; Lou Groza was still kicking, as he had since the end of World War II; and we had the incomparable Jimmy  Brown.

Art Modell owned that team and he owned the town.

2011-2012 Supreme Court Term: United States v. Alvarez: A Return to Harm-Based Analysis in First Amendment Cases?

In its recent decision in United States v. Alvarez the Supreme Court struck down the Stolen Valor Act, a federal law that made it a crime to lie about having received military honors. There is no majority opinion.

Props to Verrilli

In Scorned after oral arguments on healthcare, Verrilli emerges a winner, David G. Savage of the L.A. Times congratulates Solicitor General Donald Verrilli on his litigation strategy in the health care case - specifically, for making a strong case that the law was a constitutional exercise of Congress' power to tax under the General Welfare Clause. I agree with Savage and extend my gratitude to the S.G. for his efforts defending this landmark legislation. Although quoted in an earlier post, On Liberty: Kennedy and Verrilli in Oral Argument over Health Care (March 29, 2012), Verrilli's eloquent closing remarks to the Court bear repeating:

Responses of Advocacy Groups to Health Care Decision

This post contains reactions from several professional and advocacy organizations to the ruling of the Supreme Court upholding the Affordable Care Act.

Are National Market-Based Legislative Solutions Now Unconstitutional?

Although a majority of the Supreme Court upheld the Affordable Care Act yesterday under the Tax and Spending Clause, five justices - Justice Roberts in obiter dictum and four other justices in dissent - expressed their opinion that the enforcement mechanism of individual mandate of the Affordable Care Act was unconstitutional under the Commerce Clause and the Necessary and Proper Clause. In contrast, had Congress simply expanded Medicare to cover everybody it would have been perfectly constitutional under the Spending Clause. Think for  a moment about what that means.

How the Supreme Court Upheld the Individual Mandate: It Is and Is Not a "Tax"

In Part II of his opinion upholding the Affordable Care Act, Chief Justice Roberts concluded that the individual mandate is not a "tax" within the meaning of the federal Anti-Injunction Act. However, in Part III-C of his opinion he found that the mandate is a "tax" for purposes of the General Welfare Clause. How could he reach both of those conclusions?

Chief Justice Roberts' Opinion in ACA Case - Introduction

The introductory portion of Chief Justice Robert's opinion reads like a primer on constitutional law. The Chief Justice lays out the basic structure of our constitutional system, including quotations from the two  foundation cases in constitutional law authored by the great Chief Justice John Marshall: Marbury v. Madison and McColloch v. Maryland.

Link to Decision in Health Care Case

Here is the link to the decision of the Supreme Court upholding the PPACA.

2011-2012 Supreme Court Term: Decision in the "Stolen Valor" case, United States v. Alvarez (First Amendment)

By a vote of 6-3, the Supreme Court struck down the "Stolen Valor Act."  Four Justices led by Justice Kennedy struck down the law under strict scrutiny, and two justices employed intermediate scrutiny. Here are the previous entries I posted in the case summarizing the case generally, describing the respondent's attack on the law at oral argument, and describing the government's defense of the law at oral argument.

The decision of the Court is available here. I will post an analysis of the Court's opinion later today.

Affordable Care Act Constitutional!

Reports are now coming in that the Supreme Court has upheld the individual mandate of the Affordable Care Act. With respect to Medicaid expansion, it is being reported that the Court has ruled that while Congress may offer the States expanded funding to cover more individuals, it may not take away existing funding if a state refuses to cover more persons.

When the decision becomes available I will post an analysis.

2011-2012 Supreme Court Term: Decision in Armour v. Indianapolis (Equal Protection)

On June 4 the Supreme Court issued its decision in Armour v. Indianapolis, an equal protection case involving a disparity in the forgiveness of outstanding tax indebtedness. By a vote of 6-3, the Court upheld the action of the City of Indianapolis, and ruled that its decision to forgive outstanding assessments for a sewer improvement program was constitutional. The decision may be accessed here.

The Supreme Court's Choices on Same-Sex Marriage

There are several different cases on same-sex marriage that the Supreme Court might choose to review. Which one will it take?

From War to Criminal Justice

The war against Iraq was an actual war. The war against al-Qaeda and the Taliban is an actual, ongoing war. However, the War on Terror is a metaphor, like the "War on Drugs" or the "War on Crime." The war against al-Qaeda is drawing to a close, and like most other wars in American history the United States will be victorious. Large-scale terrorism has proven to be a failure. Within the next few years, with the cooperation of the world community, we should return to treating terrorism as a crime.

First Circuit Court of Appeals Strikes Down DOMA

The United States Court of Appeals for the First Circuit has issued its decision in Gill v. Office of Personnel Management. The Court has ruled that the federal Defense of Marriage Act is unconstitutional. The decision is available here.

The Meaning of the Pledge of Allegiance

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.

It is appropriate this weekend to remember not only our fallen soldiers but what they fought for and why they defended us and our way of life.

Another California Federal Court Rules DOMA Unconstitutional

Two days ago Judge Claudia Wilken of the United States District Court for the Northern District of California issued a decision in Dragovich v. Geithner striking down DOMA as unconstitutional. This is the third federal district court to come to the same conclusion.

First Prosecution under Matthew Shepard Act

Lila Shapiro's article in HuffPost's Gay Voices, Federal Anti-Gay Hate Crimes Law Gets First Test in Kentucky (May 23, 2012) is an outstanding and thorough summary of the Matthew Shepard Act, the arguments for and against the enactment of the law, and the Kentucky prosecution that will be its first test in court.

Not a News Flash: Greenhouse Gases Are Causing Global Warming

Here is some of the latest evidence regarding increases in the concentration of greenhouse gases in the atmosphere and global warming.

2011-2012 Supreme Court Term: Court's Decision in Astrue v. Capato (Equal Protection for Posthumously Conceived Children)

The Supreme Court issued a decision yesterday in the case of Astrue v. Capato, No. 11-159. The case mainly involved a question of statutory interpretation, but the outcome was influenced by a constitutional consideration.

Catholic Institutions and Private Business File Lawsuits Over Birth Control Mandate

Dozens of Roman Catholic institutions in eight different states filed suit against the federal government today challenging the constitutionality of the requirement that employers provide birth control coverage to their employees. In this they joined by a private employer who filed a similar suit in a Missouri two months ago. The plaintiffs all contend that the the federal mandate violates their right to religious freedom. Furthermore, the Missouri legislature has reportedly enacted a statute authorizing employers not to cover contraception or sterilization services.

Whale Hunting Continues

News on whale hunting.

NOM's Strategy of Creating Racial Backlash Against Marriage Equality Backfires: NAACP Board Endorses Same-Sex Marriage

Six weeks ago it was revealed that in 2009 the National Organization for Marriage had developed a detailed secret plan to "exploit" racial tensions in the United States in order to "drive a wedge between gays and blacks." See Wilson Huhn,  NOM's "National Strategy for Winning the Marriage Battle" Appeals to Racial, Ethnic, Religious, and Political Divisions (March 27, 2012). Today the Board of Directors of the NAACP voted to officially support marriage equality for gay and lesbian couples. See ABC News, NAACP Backs Same-Sex Marriage as Civil Right (May 20, 2012); Charlie Joughlin, Human Rights Campaign, NAACP Board Endorses Marriage Equality (May 19, 2012); Steve Kilar, Baltimore Sun, NAACP Votes to Support Same-Sex Marriage (May 19, 2012).

McCain and Whitehouse Support Campaign Finance Reform, Oppose Citizens United

Rachel Leven at The Hill reports that Senators John McCain (R-AZ) and Sheldon Whitehouse (D-RI) have filed an amicus brief with the Supreme Court urging the Court to review and overturn its decision in Citizens United.

Having Renounced Citizenship, Eduardo Saverin May Not Be Allowed to Return to United States

Facebook's co-founder, billionaire Eduardo Saverin, moved to this country at the age of 13 and later became a United States citizen. While here as a young man he became unimaginably wealthy. Recently he moved to Singapore and renounced his American citizenship, reportedly because he wished to avoid paying capital gains taxes. If this was his reason for giving up his citizenship, federal law may not permit him to return to the United States.

Is the Supermajority Requirement for Cloture Constitutional?

Senate Majority Leader Harry Reid wants to abolish the rule that requires 60 votes to achieve the passage of legislation. Manu Raju, Politico, Harry Reid: Reform the Filibuster. Some commentators are arguing that the supermajority requirement to bring cloture to a filibuster is inconsistent with the text and the intent of the Constitution.

Spring 2012 Constitutional Law II Exam: Freedom of Expression: Statute Prohibiting Bullying

Over the next few days I'll post the questions from my Spring 2012 Constitutional Law II exam. The first one up involves the constitutionality of a Connecticut statute requiring school districts to prohibit bullying at school. I added a criminal penalty and a couple of hypothetical fact situations. What do you think? May this law be constitutionally applied to the children in question?

Who Would Be on Your All-Time NBA Dream Team

If you could pick any NBA player from any time period for each position, who would make your team?

Romney's Attack on Fellow Student Not "Hijinks" or "Prank" But Assault

Earlier today the Washington Post reported upon an incident that occurred after spring break in 1965 involving Mitt Romney and John Lauber, a fellow student at Cranbrook School. Romney - who turned 18 on March 12 of that year - organized and led an attack on the other student. This event was burned into the memory of those who witnessed it. Romney claims that he doesn't remember it, but has apologized for any "hijinks" or "pranks" that "may have gone too far."

The Anthony Hargrove Declaration

On April 13, 2012, Anthony Hargrove, former New Orleans Saint defensive end, signed a sworn document informing the NFL that two New Orleans coaches, Gregg Williams and Joe Vitt, told him to deny that there ever was a "bounty" program to injure opposing players, and that he should "play dumb" when interviewed by the NFL.

President Obama Announces Support for Marriage Equality for Same-Sex Couples

Rick Klein at ABC News reports that President Barack Obama has announced his support for the right of gay and lesbian couples to be permitted to marry. The President made this announcement in an interview with Robin Roberts of ABC.

Would an Executive Order Banning Discrimination on Basis of Sexual Orientation Be Constitutional?

Gay rights groups have strongly criticized President Obama for refusing to issue an Executive Order banning employment discrimination on the basis of sexual orientation by federal contractors. In my opinion, the President could issue an order prohibiting government agencies from discriminating on the basis of sexual orientation. However, I believe that the President lacks the authority to prohibit discriminatory action by private businesses that are under contract with the government.

Sovereignty, Citizenship, and the Right to Vote

The Declaration of Independence sets forth the fundamental principles that this country stands for. All persons are created equal. All persons have certain inalienable rights. And all just powers of government are derived from the consent of the governed. From these premises it follows that every citizen has an equal right to vote. The law must not invade these sacred principles. Unfortunately a number of laws diminish, discourage, or disqualify citizens from voting. These laws violate the fundamental principles of democracy and individual sovereignty.

Matthew Vines' Biblical Exegesis on Same-Sex Relationships

For a balanced, thoughtful, and gentle analysis of the six biblical passages thought to condemn same-sex relations, please read or view Matthew Vines' The Gay Debate: The Bible and Homosexuality.

Changes in Gender Equality in My Lifetime

No-one older than 60 needs to read this post. You already know how different our society is from when we were young.

Transcript of Oral Argument in Arizona v. United States

The transcript of the oral argument in Arizona v. United States is available here. I will analyze what occurred during oral argument in a later post. My previous posts on the subject are set forth below the fold.

Presentation at NEOMED Thursday on the Constitutionality of Health Care Reform

I will be speaking to an audience at Northeast Ohio Medical University on Thursday, April 26, about the constitutionality of the Affordable Care Act. I will review the issues that are before the Supreme Court and summarize the amicus brief that I submitted to the Supreme Court on behalf of a committee of professors.

EEOC Rules That Discrimination Against Transgender Persons Is Unlawful Gender Discrimination

The EEOC has rendered a landmark victory for transgender persons. Henceforth discrimination against transgender persons will be considered to be a form of gender discrimination, which is already prohibited by the Equal Employment Opportunity Act.

Article on Same-Sex Marriage in Context of American Law and Philosophy

I have posted a working draft of an article to SSRN discussing the rapid acceptance of same-sex marriage in the United States in light of the theories of "pragmatism" and "legal realism" that have come to dominate American philosophy and jurisprudence. The article is entitled The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking and it may be downloaded here. 

Summary of Postings on Prosecution of George Zimmerman for Killing Trayvon Martin

This post lists my previous entries describing the statutes that will govern the criminal case against George Zimmerman for the shooting death of Trayvon Martin. These posts analyze the murder and manslaughter statutes, the law of self-defense including "Stand Your Ground" and "Use of Force by Aggressor" statutes, and the investigators' affidavit filed against Zimmerman.

Judge Peter Sikora

It is being reported at Cleveland.com, WKYC, and WTAM that Peter Sikora, the longest-serving member of the Cuyahoga County Juvenile Court, has passed away at age 60. Judge Sikora was not only a highly respected jurist but was an inspiration to all who knew him. His wisdom, kindness, and fairness did honor to the bench. He will be greatly missed.

Jefferson Davis' Speech at Macon, Georgia, September 23, 1864: Worst Speech Ever?

Jefferson Davis' speech of September 23, 1864, was so bad that Americans North and South speculated that it was a spoof or a satire - but it was real and sincere. In this speech Davis greatly discouraged his own troops and vastly raised morale in the North; unpersuasively justified his removal of a popular, effective commander for one who had suffered unprecedented losses; viciously attacked one his critics without naming him, leading many of his opponents to believe themselves gravely insulted by the President; and through an unbelievable exercise of "loose lips" caused his army's strategic plans to be published in the newspapers, thereby contributing to the some of the most astonishing Union victories of the Civil War. Most significantly he revealed the principles that he thought the Confederacy stood for.

Florida Cases Interpreting Section 776.041: Person Who "Initially Provoked" Incident May Not Claim Self Defense

In yesterday's post I discussed the effect of Section 776.041 of Florida law which codifies the common law rule that to claim self-defense a criminal defendant must not have been the aggressor. Under this statute George Zimmerman's guilt or innocence is likely to turn on whether the jury finds that he "initially provoked" the incident in which he shot Trayvon Martin to death. If he did provoke the attack and did not subsequently try to escape or withdraw from the confrontation, the "Stand Your Ground" law does not apply and Zimmerman will not be permitted to claim that he acted in self-defense. In this post I examine two recent Florida cases interpreting 776.041 and I cite some older Florida cases applying the common law rule that a wrongdoer may not claim that he acted in self-defense.

The Interplay of Sections 776.041 (Use of Force by Aggressor) and 776.013(3) (Stand Your Ground) in Zimmerman Case

The "Stand Your Ground" law explicitly provides that a person "has no duty to retreat" if he or she is "not engaged in an unlawful activity." However, another statute entitled "Use of Force by Aggressor" provides that if a person initially provokes the use of force then that person may not claim self-defense unless he or she has "exhausted every reasonable means to escape." I suspect that prosecutors will rely upon this second law in their prosecution of George Zimmerman for the shooting death of Trayvon Martin.

Investigators' Affidavit Emphasizes Zimmerman's Suspicion of Martin

Talking Points Memo has posted the affidavit filed by the special prosecutor's office explaining why there was probable cause to charge Zimmerman with second degree murder in the shooting death of Trayvon Martin.

Zimmerman's Low Burden of Proof on the Issue of Self Defense

In her news conference announcing that George Zimmerman was being charged with second degree murder in the death of Trayvon Martin, Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an "affirmative defense" under Florida law. She also said that "Stand Your Ground" is "a tough affirmative defense to overcome." See M. Alex Johnson, MSNBC, Zimmerman to plead not guilty to second degree murder (April 11, 2012). It will be "tough" for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn't mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a "reasonable doubt" as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.

Florida Statutes on Second Degree Murder and Manslaughter

George Zimmerman has been charged with second degree murder, which carries a possible penalty of life in prison. A possible lesser charge is manslaughter, for which he could be sentenced to 15 years imprisonment. This post sets forth the relevant Florida statutes on homocide.

"Immorality" and Social Change

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality."

They are mistaken. They view change itself as threatening. They forget that society often changes for the better - that human progress is possible - and that if given the opportunity to pursue their hopes and dreams people can often make this a better world.

2011-2012 Supreme Court Term: Oral Argument in Reichle v. Howards, No. 11-262: Should the Secret Service Have Immunity From Liability for an Alleged Retaliatory Arrest?

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service - or the police generally - carte blanche to arrest protesters for pretextual reasons.

Gregg Williams Recorded Urging Players to Injure Opponents

The Huffington Post has posted an audio recording of New Orleans defensive coordinator Gregg Williams exhorting his players to inflict a concussion and a torn ACL on specific members of opposing teams for money. I think this earns Williams a lifetime ban from football at any level. What does it say about football in general?

Why the Courts Must Presume that Economic Legislation is Constitutional

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess the political branches in the determination of national economic policy.

I promised that today I would explain why the courts lack that power. There are two reasons. First, the courts are not institutionally equipped to undertake the complex analysis necessary to the establishment of economic policy. Second, the courts are not democratically authorized to balance and compromise the economic interests of different segments of our society.

Attorney General Holder's Response to Judge Jerry Smith on the Separation of Powers

The Attorney General's letter is here. More below.

Suppressed 2006 Zelikow Memo Against Torture Released

The State Department has released a copy of the February 15, 2006 memo by Philip Zelikow arguing that the "enhanced interrogation techniques" used to question detainees were illegal. The Bush administration had sought to destroy all copies of the memo.

Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation of Powers.

On Liberty: Kennedy and Verrilli in Oral Argument over Health Care

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

Oral Argument on the Individual Mandate: Justice Kennedy's Questions

In this post I set forth all of the questions that Justice Kennedy asked the three attorneys at oral argument today in the health care case. Evaluate for yourself which way this "swing justice" is tending.

Solicitor General Verrilli's Argument on the Anti-Injunction Act

Solicitor General Robert Verrilli argued to the Supreme Court that the Anti-Injunction Act does not bar the courts from determining the constitutionality of the individual mandate at this time. As in yesterday's post, the numbers in bold are page numbers from the transcript of oral argument.

31.  General Verrilli commenced his presentation by reminding the Court that the nation needs an answer from them about the constitutionality of the Affordable Care Act:

GENERAL VERRILLI: Mr. Chief Justice and may it please the Court: This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court's consideration of those issues.

Right out of the box, Justice Alito asked Verrilli the $64,000 Question:

JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you 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?

Verrilli responded clearly and concisely, arguing that in matters of statutory interpretation the precise text of the law must be followed, but that the language of the Constitution has been and should be interpreted more broadly:


GENERAL VERRILLI: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today.
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.


32.  Justice Sotomayor asked about the applicability of the Bailey v. George (1922) in which the Court found that the Anti-Injunction Act did not apply to the Child Labor Tax.  General Verrilli declined to rely on that case because the same day, in Bailey v. Drexel Furniture, the Supreme Court struck down the Child Labor Tax. General Verrilli said that "the Affordable Care Act provision is the same thing as the provision that was held unconstitutional in Bailey against Drexel Furniture."  Basically, the Child Labor Tax Cases are notorious decisions prohibiting Congress from regulating child labor even by means of the taxing power.  The government wisely rejected any reliance on those cases.

34.  In an discussion with Justice Ginsburg and Justice Kennedy, all three agreed that if the Anti-Injunction Act does not apply to the individual mandate because it is not a "tax" within the meaning of the statute, it would not be necessary to decide whether the AIA is jurisdictional or whether the government may waive its provisions. There was additional extended discussion about whether the AIA is jurisdictional or not, but the impression I have from the transcript was this was "academic" in nature and not dispositive of the case.

43.  Justice Ginsburg asked General Verrilli whether any other laws would be affected if the Court rules that the individual mandate is not subject to the AIA. Verrilli identified five such laws.

45.  Justice Sotomayor asked whether there were any other penalties for violation of the individual mandate other than the monetary penalty in the statute; for instance, could someone's probation or parole be revoked  because of the failure to have health insurance. Verrilli stated that "there is no other consequence apart from the tax penalty."

For the remainder of the argument there were no questions from the Court challenging the Solicitor General's position that the AIA does not apply to this case. There were some questions attempting to establish whether exemptions from paying the penalty also constituted exemptions from the individual mandate, and specifically whether individuals could be required to sign up for Medicaid. Verrilli maintained that people could not be forced to obtain health insurance whether or not the penalty applied to them.

This portion of the argument confirmed the impression that the Justices intend to rule that the AIA does not apply and that the Supreme Court therefore has jurisdiction to decide on the constitutionality of the individual mandate.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

NOM's "National Strategy for Winning the Marriage Battle" Appeals to Racial, Ethnic, Religious, and Political Divisions

The National Organization for Marriage is being investigated for possible violations of campaign finance laws in the State of Maine. As a result, documents describing its political strategy have come to light.  The Human Rights Campaign has posted the documents here. The principal document is NOM's National Strategy for Winning the Marriage Battle. It reveals a strategy intent on creating and exploiting racial, ethnic, religious, and political tensions.

2011-2012 Supreme Court Term: Oral Argument by Amicus Curiae on the Anti-Injunction Act

The Supreme Court heard oral argument today on the issue of whether the Anti-Injunction Act applies to the individual mandate of the Affordable Care Act.  The transcript of oral argument is available here.  The bottom line is that it looks like the Supreme Court will proceed to the merits and decide whether the individual mandate of the Affordable Care Act is constitutional.

The "Stand Your Ground" Statute: Not a Criminal Law But a Political Statement

I don't wish to comment specifically on the killing of Trayvon Martin until the investigation has been completed.  It now appears that this matter has been turned over to capable state and federal investigators.  Once all the facts are established there will be time to express opinions about that specific case.  However, the state statute that local police relied upon in refusing to make an arrest should be examined.  The law is deeply flawed and should be repealed.

2011-2012 Supreme Court Term: Decision in Coleman v. Court of Appeals of Maryland

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.

Will President Obama Contest Georgia?

Aaron Gould Sheinin and Marcus K. Garner of the Atlanta Journal-Constitution speculate that President Obama will not mount a large-scale effort to win the State of Georgia this year.  Should he?

Health Insurers' Position on the Individual Mandate

In the debate over the constitutionality of the federal health care reform law, health insurance companies have maintained a low profile.  The individual mandate was their idea; they wish that the mandate was stronger than it is; and now they are signalling that if the individual mandate is struck down by the Supreme Court, they can not and will not go along with the other insurance reforms in the PPACA.

Prominent Supporters of Terrorist Organization MEK May Not Be Protected by First Amendment

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the First Amendment.

Rush Limbaugh, Hate Speech, and the First Amendment

Rush Limbaugh has a long history of demeaning people based upon their gender, race, religion, and sexual orientation. His record is a perfect demonstration of the fact that in the context of a public address hate speech is protected by the First Amendment. That does not mean that other people have to put up with it.

Health Care Briefs: Amicus Briefs Attempting to Protect Specific Provisions of the Affordable Care Act

In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court to spare specific provisions of the Act.  The number and significance of these provisions remind us how vast and encompassing this law is, and how unlikely it is that the Supreme Court will declare it unconstitutional.

Health Care Briefs: Which Side Are You On?, continued. Et tu, Chamber of Commerce?

The amicus brief filed by the United States Chamber of Commerce on the issue of severability actually presents a highly persuasive argument in support of the constitutionality of the individual mandate in the Affordable Care Act.

Health Care Briefs: The Single Payer Action Brief: Which Side Are You On?

Some amicus briefs remind me of that old Pete Seeger song, Which Side Are You On?

Poverty and Crime

Reports from the Pew Research Center and the National Center for Children in Poverty make for depressing reading.  The statistics regarding poverty and crime are astonishing and a shameful reflection on our society.

The Gender Gap in National Politics

Recent events including the introduction and defeat of the Blunt Amendment in the United States Senate and political commentator Rush Limbaugh's vicious attack on Sandra Fluke in the context of the debate over birth control have highlighted the extent to which the major American political parties have become polarized on gender issues, with women favoring the Democratic Party.  But this was not always the case.  Historically women identified more with the Republican Party.

Attorney General Eric Holder Identifies Factors for Targeting Enemy Combatants

In a speech yesterday at Northwestern University Law School Attorney General Eric Holder addressed  a number of legal issues associated with the war against al Qaeda and its allies.  Specifically, he identified the factors that the Executive Branch takes into account in targeting enemy combatants.

Rush Limbaugh, Larry Flynt, and the Westboro Baptist Church: Is Limbaugh Protected by the First Amendment?

Over the course of three days conservative commentator Rush Limbaugh repeatedly defamed Sandra Fluke, a third-year Georgetown law student, calling her a "slut" and a "prostitute."  If found guilty of slander or intentional infliction of emotional distress (IIED), Limbaugh would be liable to Ms. Fluke for millions of dollars in actual damages, and his potential liability for punitive damages would be astronomical.  Is Limbaugh liable to Fluke for defamation and IIED, or is he protected by the First Amendment?  Limbaugh's only defense would be to compare himself to pornographer Larry Flynt and the homophobic Westboro Baptist Church.

2011-2012 Supreme Court Term: Oral Argument in FCC v. Fox, continued

Two days ago I summarized the issues in this case.  Yesterday's post described the Solicitor General's presentation to the Supreme Court in oral argument.  Today I describe the television broadcasters' arguments to the Court, through their attorneys Carter G. Phillips and Seth P. Waxman.  The transcript of oral argument is available here.

2011-2012 Supreme Court Term: Oral Argument in Fox v. F.C.C.

I described the First Amendment issues that are at stake in this case in yesterday's post. Today's post summarizes what occurred during the government's presentation at oral argument in FCC v. Fox on January 10, 2012. The transcript of oral argument is available here.

2011-2012 Supreme Court Term: FCC v. Fox Television Stations, No., 10-1293 (Vagueness, Freedom of Expression)

The last time this case came before the Supreme Court in 2009 it was for “fleeting expletives” uttered by Cher at the 2002 Billboard Music Awards broadcast by Fox and by Nicole Richie and Paris Hilton at the same event in 2003.  The Supreme Court decided that case not on constitutional grounds but rather under principles of administrative law.  This time the case comes before the Court because of a scene of nudity - a boy watching a woman entering the bath naked - and the constitutional issues are squarely before the Court.  ABC showed this scene on a program at 9:00 in the evening instead of waiting one more hour when it would have been allowed under F.C.C. guidelines.

Employers' "Right" Not to Pay for Birth Control Analyzed

Some conservative religious employers contend that it violates their constitutional rights to be required to provide birth control coverage for their employees. Here is another reason why that is not true.

Update on Judge Who Forwarded Racist Email

Roger Cebull, the Montana federal district court judge who forwarded a vile racist "joke" to his friends, has requested a review of his actions by the Ninth Circuit Court of Appeals and is planning to formally apologize to President Obama.

Anti-Contraception Bill Defeated in Senate, 51-48 - Implications for the Presidential Election

The United States Senate just voted to table the Blunt Amendment, 51-48.  What are the implications for the Presidential campaign?

2011-2012 Supreme Court Term: Decision in Kurns v. Railroad Friction Products Corp.: Statutory or Constitutional Stare Decisis?

Yesterday the Supreme Court issued a decision in Kurns v.  Railroad Friction Products Corp.  This is yet another judicial decision ruling that a piece of federal regulatory legislation should be interpreted to preempt state common law tort claims.  A disturbing element in this case is the willingness of the Court to give precedential effect to a case that was decided in 1926 at the height of the Court's opposition to progressive legislation protecting workers.

The Constitutional Right to Birth Control

Americans have a constitutional right to use birth control.  Under settled law the government does not have the power to interfere with this basic right.

Health Care Briefs: Reply Brief of Solicitor General Donald Verrilli on Anti-Injunction Act

Over the next couple of months I will be reviewing the briefs filed in the health care case pending before the Supreme Court of the United States.  Today's entry concerns a reply brief filed by Solicitor General Donald Verrilli regarding a jurisdictional issue arising under the federal Anti-Injunction Act.

2011-2012 Supreme Court Term: Oral Argument in MBZ v. Clinton

Like most of the cases this year, oral argument in this case featured a very active bench.  Justices vigorously questioned both attorneys; my impression is that they were much tougher on the attorney for the petitioner, and much less satisfied with his answers.  I think the President will win.  The question is whether he will win on jurisdictional grounds or on the merits.

Federal Judge Roger Cebull Should Resign for Racist E-Mail

Federal Judge Roger Cebull emailed a disgusting race joke to his friends and then issued a half-hearted apology. He should resign.

2011-2012 Supreme Court Term: MBZ v. Clinton, No. 10-699 (Political Question, Separation of Powers)

In 2002 Menachem Binyamin Zivotofsky was born in Jerusalem to American parents.  His parents applied to the State Department for a passport for him and requested that it show his place of birth as “Israel.”  The State Department instead listed his place of birth as "Jerusalem."  His parents brought this suit on his behalf requesting the courts to order the Justice Department to state on his passport that he was born in Israel.

2011-2012 Supreme Court Term: Reichle v. Howards, No. 11-362 (First Amendment)

On June 16, 2006, Stephen Howards was arrested by the Secret Service after he said something to Vice-President Richard Cheney and touched or pushed his shoulder, and then lied to them about whether he had done that.  As a result Howards sued several of the Secret Service agents for violating his rights under the First and Fourth Amendments.

2011-2012 Supreme Court Term: The Respondent's Attack on the Stolen Valor Act at Oral Argument in United States v. Alvarez

Yesterday's post described the government's presentation at oral argument in United States v. Alvarez, where the Solicitor General defended the constitutionality of the Stolen Valor Act.  Today's post summarizes the respondent's argument.  Here is a link to the transcript of the oral argument.

2011-2012 Supreme Court Term: The Government's Defense of the Stolen Valor Act at Oral Argument in United States v. Alvarez

The principal doctrinal division in this case is whether "false statements of fact" are a "historically unprotected category of speech.  The principal practical division arises from the attempt to identify the "harm" that the government is seeking to prevent by prohibiting people from lying about earning military honors.  Oral argument exposed those divisions.  Today I describe the first half of oral argument, the government's defense of the Stolen Valor Act.

Electoral Vote Maps for 2012

Here are links to three electoral maps for this year's presidential election: at NBC, Real Clear Politics, and 538 To Win.  NBC and RCP make predictions for 2012, while 538ToWin’s map is interactive and allows you to allocate states to Democrats, Republicans, and the “toss-up” category.

2011-2012 Supreme Court Term: Summary of United States v. Alvarez (The Stolen Valor Act case)

     This case involves the constitutionality of the “Stolen Valor Act,” 18 U.S.C. 704(b), the federal law that makes it a crime to falsely claim that one has been awarded military honors.

Same-Sex Marriage: 85,600,000 and Growing

More than one-fourth of Americans now live in jurisdictions that recognize same-sex marriage.  Within five years more than half of Americans may live in such jurisdictions.  But there are legal barriers.

2011-2012 Supreme Court Term: Court's Non-Decision in Douglas v. Independent Living Center of Southern California

Pffft.  Two days ago the Supreme Court issued its decision in Douglas v. Independent Living Center, a case that promised to answer the undying question whether Article III standing may be premised on the Supremacy Clause - a case only a standing junkie could love.  But nooooo, the Supreme Court found technical reasons not to answer the technical question posed by the case.

DOMA Struck Down by District Court in Golinski Case

In a ruling issued yesterday, Judge Jeffrey S. White of the Northern District for the State of California struck down the federal Defense of Marriage Act as unconstitutional under the Equal Protection Clause.  Judge White did not find that the Constitution requires the states to recognize same-sex marriage.  Instead he simply ruled that the federal government may not refuse to recognize the validity of same-sex marriages that the states have chosen to recognize.  But his reasoning leaves little doubt that the states will be required to follow suit.

2011-2012 Supreme Court Term: Coleman v. Court of Appeals of Maryland, No. 10-1016 (11th Amendment State Sovereign Immunity)

This is another of those wacky 11th Amendment cases that the Supreme Court has been entertaining lately.

2011-2012 Supreme Court Term: Armour v. Indianapolis, No. 11-161 (Equal Protection)

One of the constitutional cases that the Supreme Court is currently reviewing is Armour v. Indianapolis, a tax case brought under the Equal Protection Clause.

My Research Plans

     I am working on three major research projects: one short-term, and two others longer term.

Department of Justice Will Not Defend Law Prohibiting Military Benefits to Same-Sex Couples

Attorney General Eric Holder released a letter to House Speaker John Boehner today informing him that the Department of Justice will not defend the constitutionality of a federal law denying benefits to members of the armed forces who are lawfully married to persons of the same sex.

Rick Santorum's Call for "Moral Impact Statement" Is Present in the Prop 8 Case

In his book "It Takes a Family" Presidential candidate Rick Santorum advocates for the preparation of "moral impact statements" to evaluate changes in society, analogous to the requirement that there be an "environmental impact statement" before land use changes are undertaken.  I completely agree.