June 28, 2012
Supreme Court Action Today: The Mandate Is Constitutional, Lying Is Constitutional, And Another Ooops
What a difference an hour makes. I checked in with CNN this morning just before I left for the office and saw the headline that the individual mandate was struck down. I get to downtown Chicago and every news site trumpets that the mandate is upheld. I guess that’s what happens if one reads the first few paragraphs of the syllabus. So, let’s take a look at the opinion and try to figure out just what happened here.
The case is question is National Federation of Independent Business v. Sibelius (11-393). The issue is the constitutionality of the Affordable Care Act and specifically the individual mandate which requires citizens to buy insurance or pay a penalty to the government. There are multiple other issues which were brought out in the several days of oral argument. The Court dealt with them thusly:
- The Anti-Injunction Act does not bar the suit. The Court examines the rationale between calling something a tax and a penalty and concludes the “penalty” for not buying health insurance does not have to be treated as a tax for purposes of the Act.
- The individual mandate is constitutional under the Tax Clause rather than the Commerce Clause. Calling the levy a “penalty” may defeat the Anti-Injunction Act, but the characteristics of the application of the levy control its constitutionality. Though the levy is designed to control conduct, there are other “taxes” which do the same thing, such as discouraging the purchase of foreign goods in favor of developing domestic industries, liquor and cigarette taxes that discourage consumption, and taxes on selling marijuana and sawed-off shotguns. Labels do not affect the Court’s ability to measure the exercise of power against the Constitution. Further analysis shows the levy is constitutional under the narrowest interpretation of Congress’ power to tax.
- The Judgment of the Court concludes the provision which denies the states all Medicare money if they do not comply with the provisions of the ACA is unconstitutional. Other provisions of the ACA are not affected by this.
I’ve tried to summarize, albeit briefly, the net effect of the decision. Chief Justice Roberts wrote the main opinion, but five justices did not join all of it. The opinion of the Court is contained in Parts I, II, and III-C where the Chief Justice was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justices Breyer and Kagan joined in Part IV, which is the Medicare section. Parts III-A, III-B, and III-D are all Chief Justice Roberts. Justice Ginsburg filed a separate opinion concurring in part, concurring in the judgment in part and dissenting in part in which Justice Sotomayor joined, and also joined by Justices Breyer and Kagan as to Parts I, II, III, and IV. Justices Scalia, Kennedy, Thomas, and Alito filed a dissenting opinion. Justice Thomas dissented separately, agreeing with Chief Justice Roberts analysis on the limits of the Commerce Clause power. Got all that?
The only other point I would raise about this case is that it is a surprise that Chief Justice Roberts wrote the main opinion in the case upholding the ACA. Many commentators thought that Justice Kennedy would take his usual place as the swing vote in a 5-4 decision and predicted that he would uphold the law. Wrong and wrong, though the law was upheld.
The second anticipated case from today is United States v. Alvarez (11-210). The case involves the constitutionality of the Stolen Valor Act of 2005 which makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved. The Court describes the defendant as a habitual liar who in fact falsely claimed that medal. He pleaded guilty to that charge and reserved the right to appeal the constitutionality of the statute. The Ninth Circuit declared the statute unconstitutional. The Supreme Court affirmed.
The Court stated that exceptions to the First Amendment are few and narrow. Even defamation cases are based on more than lying in that the lying must be knowing and reckless. The Stolen Valor Act targets nothing more than falsity. There are other methods for counteracting the lying, such as public ridicule for making the false claim, compiling an accurate public database of medal winners for common perusal, and others. Essentially, criminalizing lying by itself violates the First Amendment. Justice Breyer’s opinion suggests a statute that penalizes the harm done by the lying could sustain a constitutional challenge.
This is another case where there is a plurality. Justice Kennedy wrote the opinion announcing the judgment of the Court, joined by Chief Justice Roberts and Justices Ginsburg, and Sotomayor. Justice Breyer filed an opinion concurring in the judgment, joined by Justice Kagan. Justice Alito filed a dissenting opinion joined by Justices Scalia and Thomas. Here is an excerpt from the dissent:
Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s personal knowledge. These lies have no value in and of themselves, and proscribing them does not chill any valuable speech.
By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.
With language like that, would the dissent uphold, say, hate crime speech or anti-bullying laws under the First Amendment?
The third case is First American Financial Corp. v. Edwards (10-708). The case was dismissed on the grounds that certiorari was improvidently granted. Ooops I did it again, I granted you cert when I should have declined, with apologies to Britney Spears.
Supreme Court end-of term bonus: Stephen Colbert comments on United States v. Arizona, with specific emphasis on Justice Scalia’s dissent.