Tag: SCOTUS

Cross posted from The Stars Hollow Gazette

Today the Supreme Court heard arguments about the severability of the individual mandate in the Affordable Health Care bill  and the expansion of Medicaid.

The day after the Supreme Court suggested that President Obama’s health care law might be in danger of being held unconstitutional, the justices on Wednesday turned their attention to the practical consequences and political realities of such a ruling.

The justices seemed divided on both questions before them: What should happen to the rest of the law if the court strikes down its core provision? And was the law’s expansion of the Medicaid program constitutional?

The two arguments, over almost three hours, were by turns grave and giddy. They were also relentlessly pragmatic. The justices considered what sort of tasks it makes sense to assign to Congress, what kinds of interaction between federal and state officials are permissible and even the political character of the lawsuits challenging the law. One justice dipped into Senate vote counting.

The court had in other words, on the third and final day of a historic set of arguments, moved from the high theory of constitutional interpretation to the real-world consequences of what various rulings would entail.

The arguments on severability, which hinged totally on whether the mandated stays or goes, boiled down to three points:

1. sever only the mandate, allow the rest of the law to stand and let Congress sort it out;

2. sever the mandate along with insurance regulations like guaranteed issue and community rating, to prevent what the government argues would be an insurance death spiral;

3. or throw out the whole law, which did not include a standard severability clause.

The Justices seemed divided over point #2 and #3 rather than #1. For the most part, the discussions and comments were reflective of the consequences of overturning the entire law or any part of it:

[..] A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia – first, that it “can’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.”  [..]

Justice Anthony Kennedy, who is considered the swing vote on the individual mandate, expressed concern “possible unintended consequences in the form of huge costs to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – was invalidated alone”:

“We would be exercising the judicial power if one … provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said. “By reason of this court, we would have a new regime that Congress did not provide for, did not consider.”

The four liberal justices expressed deep reservations about tossing out the sweeping law that has hundreds of other provisions, some of them already in effect.

Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?”

Justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. “Why make Congress redo those?”

On the matter of Medicaid expansion a majority of the justices were inclined to support the government’s role in prodding states to expand the state-federal Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans:

The court’s more liberal justices all expressed puzzlement about why there should be a problem with the expansion in light of the fact that it is almost entirely to be paid for by the federal government. The states say they are being coerced into participating because a decision not to may cause them to lose not only the new money but also existing funds.

Justice Elena Kagan described a hypothetical program only slightly different from the real one. “It’s just a boatload of federal money for you to take and spend on poor people’s health care,” she said to a lawyer for the states, Paul D. Clement. “It doesn’t sound coercive to me, I have to tell you.” [..]

He (Chief Justice John G. Roberts Jr) said the court’s decision on the Medicaid expansion should be informed by the reality that the states have “since the New Deal” cheerfully accepted federal money.

“It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done,” the chief justice said.

Justice (Antonin) Scalia addressed the political realities of the litigation itself, asking Mr. Clement whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?”

Mr. Clement responded, “There’s a correlation, Justice Scalia.”

In her last article on Wednesday’s sessions, Slate‘s Dahlia Litwick gives her assessment of the last three days:

Amid all the three-day psychodrama, it’s easy to get confused about what’s happened and what hasn’t. Court watchers seem to generally agree that the individual mandate is in real peril and will rise or fall with Chief Justice Roberts and Justice Kennedy. Court watchers also agree that 19th-century tax law-while generally adorable-will not prevent the justices from deciding the case by July. And they also agree that they may have counted five justices who appear willing to take the whole law down, along with the mandate, and the Medicaid expansion as well.

But the longer they talked, the harder it was to say. A lot of today’s discussion started to sound like justices just free-associating about things in the law they didn’t like. That doesn’t reveal all that much about the interplay between the four separate challenges-what happens when they all have to be looked at together-or anything at all about what will happen at conference or in the drafting of opinions. Could the five conservative justices strike down the entire health care law, and take us into what Kagan described this morning as a “revolution”? They could. Will they? I honestly have no idea anymore. As silent retreats go, this one was a lot less enlightening than I’d hoped.

Constitutional law professor Jonathan Turley discussed the hearings with Keith Olbermann on Countdown, calling this case a “game of chicken” that “can be deadly.”

Cross posted from The Stars Hollow Gazette

Can the government force you to eat broccoli or buy a cell phone? Those were some of  the questions asked during the first two of three days of hearings before the US Supreme Court over whether it is constitutional for the government to mandate an individual to buy health care insurance from a private company or face a “penalty” to be collected by the Internal Revenue Serve. Candidate Barack Obama opposed a mandate but changed his mind, including it his “signature” [Affordable Care Act , taking single payer and then the option for a public sponsored insurance off the table. At this point, the majority of the public is opposed to the mandate and about a third want the entire bill scrapped, even though it has a few good provisions such removing pre-existing conditions as a reason to deny coverage and the implementation of lifetime caps on what the insurance company will pay.

Dahlia Lithwick, a senior editor and legal correspondent for Slate, gives her analysis of the first two days:

One thing was clear after the two hour session (pdf) at the Supreme Court on the constitutionality of the Affordable Care Act: The outcome of President Obama’s signature legislative achievement probably rests on the shoulders of two men-Chief Justice John Roberts and Justice Anthony Kennedy. Or, to put it differently, everyone else seems to have staked a clear position. [..]

In the beginning, all eyes were on Kennedy who opened his questioning by asking Solicitor General Donald Verrilli to “assume this law is unprecedented.” (Gulp. That isn’t the way Verrilli wanted this to begin.) Both Kennedy and Roberts pressed Verrilli to enunciate a limiting principle on the congressional power asserted here. Or as Kennedy put it, early in the argument: “Can you identify any limits on the commerce clause?” [..]

Kennedy had serious doubts and Verrilli appeared unable to allay them. The odds on a 5-4 vote to strike down the law looked good. Kennedy asked far fewer questions of the challengers, although near the end of the morning he said, in his inimitably oblique style that young people are “uniquely, proximately very close to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries.” That may suggest he believes that the health insurance market really is unique in some ways. [..]

My sense is that we saw only a part of what the justices were really thinking today. We heard Roberts and Kennedy expressing doubts about each side of the argument. But we didn’t get to hear them think aloud about what it actually means to strike down a monumental act of congress. We can assume that is weighing on some of the justices, nonetheless. The other thing we didn’t hear much about today was case law. Justice Stephen Breyer pointed out more than once that the justices weren’t there to debate whether or not they liked the bill. But it may be worth counting up the references to forced gym memberships, cellphone purchases, and broccoli mandates, and tallying them up against references to actual court cases. That’s either because the mandate is so unprecedented that precedent doesn’t matter. Or, because precedent just doesn’t matter.

What we do know is that an individual can survive very well without broccoli or a cell phone but at some point that individual will need health care. In another article by Ms. Lithwick she points out that the conservative argument that this is about freedom has a very dark side:

It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance. But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing. [..]

Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health care market is unique because “getting health care service … [is] a result of the social norms to which we’ve obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don’t obligate yourself to that.” [..]

Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. [..]

Freedom is to be free from the telephone. [..]

Freedom is the freedom not to join a gym, not to be forced to eat broccoli. It’s the freedom not to be compelled to buy wheat or milk. And it’s the freedom to purchase your health insurance only at the “point of consumption”-i.e., when you’re being medivaced to the ICU (assuming you have the cash). [..]

Some of the members of the court find this notion of freedom troubling. Justice Ruth Bader Ginsburg notes that: “Congress, in the ’30s, saw a real problem of people needing to have old age and survivor’s insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. [..]

Sotomayor, again pondering whether hospitals could simply turn away the uninsured, finally asks: “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance-do you think there’s a large percentage of the American population who would stand for the death of that child if they had an allergic reaction and a simple shot would have saved the child?” {..]

This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

My biggest problem is that forcing people to buy insurance from a private company that does not insure access to care and cost controls or without an inexpensive public option, like buying into Medicare, is just a financial gift to the insurance companies. Without a public option, this bill is a major failure and unlikely to be fixed in the future, as so many Obama supporters claimed, or be replaced if SCOTUS declares the bill unconstitutional.

Cross posted from The Stars Hollow Gazette

Monday morning the Supreme Court handed down a 9 – 0 decision on the 4th Amendment and privacy right ruling that police must obtain a warrant before they can place GPS device on a person’s vehicle. The ruling in United States v. Jones upholds a citizen’s right to privacy and smacks down the Obama administrations defense of unlimited surveillance. The ruling overturns the drug conviction of Antoine Jones that used information from a GPS device that was placed on his vehicle without a warrant.

Justices Say GPS Tracker Violated Privacy Rights

WASHINGTON – The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies. [..]

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants.

The Obama administration had argued that under a 1983 ruling the police had the right to place the device:

One of the Obama administration’s main arguments in support of warrantless GPS tracking was the high court’s 1983 decision in United States v. Knotts, in which the justices ruled it was OK for the government to use beepers known as “bird dogs” to track a suspect’s vehicle without a warrant. In that case, the police had the consent of that truck’s owner, which was not the case in the opinion decided Monday, Scalia wrote.

Law Professor Jonathan Turley provides broader discussion of the two opinions that were written by Justices Samuel Alito and Anton Scalia. Scalia’s opinion prevailed with Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor concurring.

Also Jeralyn E. Merritt of TalkLeft points out a question that was not addressed:

Whether the electronic surveillance, if achieved without having to physically trespass on Jones’s property, would have been “an unconstitutional invasion of privacy.”

The Energy Bill has been shelved for now — another Price exacted by the Do Nothing Party.

Senate Halts Effort to Cap CO2 Emissions

Democrats Forgo Centerpiece of President Obama’s Energy Plan, as Cap-and-Trade Fails to Lure Broad Support in Congress

By Stephen Power, Wall Street Journal — July 23, 2010

Mr. Reid refused to declare the idea dead. But Thursday’s decision called into question when or whether any legislated cap on greenhouse-gas emissions would reach Mr. Obama’s desk.

Now, businesses, such as wind-turbine makers, that had bet on a greenhouse-gas provision to make alternatives to coal and oil more cost-competitive must recalculate how long it might take for that to happen.

[…] the solar industry is growing at the rate of about 40% a year in terms of electrical power installed and is likely to continue to grow, said Ron Kenedi, vice president of Sharp Corp.’s Sharp Solar Energy Solutions Group in Huntington Beach, Calif.

We need some new Senators (at least 60), who actually care about Energy Independence — enough to act.

Pat Buchanan recently opined the near-certain confirmation of Elena Kagan on the Supreme Court will bring Jewish jurists on the court to three.  This 33% representation far outweighs the overall Jewish demographic of about 2% of the general population.

Pat Laments:

Buchanan was responding to a Washington Post story about black leaders expressing disappointment over solicitor general Elena Kagan’s record at Harvard Law, where the faculty members she hired were mostly white.

“But while leaders in the black community may be upset, the folks who look more like the real targets of liberal bias are white Protestants and Catholics, who still constitute well over half of the U.S. population,” he wrote. “Not in living memory has a Democratic president nominated an Irish, Italian or Polish Catholic, though these ethnic communities once gave the party its greatest victories in the cities and states of the North.”

What Pat fails to mention is that there are already six Catholic justices on the court.

Elena Kagan is currently the Solicitor General for the Obama Administration. She is the former Dean of Harvard Law. She is currently one of the candidates under consideration to replace Supreme Court Justice John Paul Stevens, who has announced his retirement after this session. Ms. Kagan has never been a judge, not that that is a qualification, but she also has spent little time in a courtroom. Her record on most issues is sparse but what is known about her is very troubling for progressives and this country. Glen Greenwald has been very critical of her citing not just the scarcity of her opinions but her troubling testimony before Senate judiciary committee.

Now four law professors, (Guy-Uriel Charles is at Duke Law School; Anupam Chander is at the University of California-Davis Davis School of Law; Luis Fuentes-Rohwer is at Indiana University’s School of Law; and Angela Onwuachi-Willig is at the University of Iowa College of Law), question her record on diversity while she was Dean.

The first woman Dean of Harvard Law School had presided over an unprecedented expansion of the faculty — growing it by almost a half. She had hired 32 tenured and tenure-track academic faculty members (non-clinical, non-practice). But when we sat down to review the actual record, we were frankly shocked. Not only were there shockingly few people of color, there were very few women. Where were the people of color? Where were the women? Of these 32 tenured and tenure-track academic hires, only one was a minority. Of these 32, only seven were women. All this in the 21st Century.