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.