The Faculty Lounge

Media, ICWA, and the Baby Girl Case

Next week, the Supreme Court will hear oral arguments in the Adoptive Couple v. Baby Girl case. This is only the second time since the passage of ICWA that the Court will hear a case involving the statute. The case is drawing intense media attention, and has since its arrival in the South Carolina Supreme Court. Today Andrew Cohen posted his piece at the Atlantic, one of the few mainstream media outlets to give a balanced view of the case and a defense of the law at the heart of the case.

Very briefly, the case involves the child of a non-Indian mother and a father who is a citizen of the Cherokee Nation. As in almost all family law cases, there are various disputed facts about the involvement of the father in the mother's life after he found out the mother was pregnant. It bears noting again the trial court found the mother's testimony less compelling than the father's, and found for the father, as did the South Carolina Supreme Court. Father (while the names of all the parties are very easily ascertained, I prefer not to the publicize the name of the 3 year-old child at the center of this dispute) was serving at Fort Sill when he found out the mother was pregnant. He wanted to get married, she did not. When asked to surrender his parental rights, he believed he was surrending the rights to the mother, not to give up his daughter for adoption. When he found out his parental rights were being terminated for adoption purposes, he contacted his attorney on the base and started the legal process to get his child back. Days later he was deployed to Iraq for a year. Upon his return, he continued to fight the legal battle and the courts returned his child to him just after Christmas, 2011.

I've been asked repeatedly why the Court took the case, what caught the Court's eye, what I think will happen. I honestly don't know. I will say that the posture of the case--the tribal interest/father winning in state court and appealled up by the non-Indian party--fits Prof. Matthew Fletcher's analysis of the cert process for tribal interests these days. His work demonstrates that when a tribe wins below, the Supreme Court is more likely to take notice of the case.

While some are worried that the Adoptive Couple's aggressive use of the media in this case attracted the Court's attention. The more I think about this, the more I don't think this is the situation. The briefs of the Adoptive Couple and the Guardian ad Litem attack the very foundation of federal Indian law, claiming applying the Indian Child Welfare Act in this case is a prohibited race based use of the law (impermissable preferences). There is also a question of the use of state law to define terms in the federal statute (federalism concerns). Cohen's article details these claims, and shines a welcome light on the horrible role of the guardian ad litem in this case. Those concerns, plus the posture of the case, led to Court taking the case.

The amicus briefs on the side of the father, including 18 state attorneys general, the Solicitor General, and child welfare agencies and non-profits, are incredibly strong. And when we talk to child welfare professionals at the state and county level about the requirements of ICWA, the responses are almost always along the lines of surprise--that the law is really a best practices statute, and the practices it guarantees for American Indian children are practies our family law courts should aspire to for all children.

Edited Versions of the Same-Sex Marriage Oral Arguments

For anyone interested in using the same-sex marriage oral arguments in class, or if you're just interested in listening to the arguments but don't want to listen to over 3 hours, I've edited down each day's arguments into just under 30 minutes.  They are below with times in parentheses after each argument.

A couple of caveats.  First, I edited them to use in my 1L conlaw course, so excerpts were chosen with that audience in mind.  Second, they are all mp3 files, so they are relatively small and should be easy to download.

Perry jurisdictional argument (7:06)

Perry merits argument (21:19)

Windsor jurisdictional argument (8:09)

Windsor merits argument (21:47)

Feel free to use/link/pass along as you wish!

Free speech and off-label use marketing

Makers of pharmaceutical drugs got a fairly significant victory in their quest to have the FDA's regulation of off-label use marketing ruled unconstitutional.  In United State v. Caronia the 2nd circuit overturned the conviction of drug re Alfred Caronia for conspiring to "introduce a misbranded drug into interstate commerce," finding that he was convicted in violation of his First Amendment rights on the basis of his speech promoting the drug Xyrem, a drug to treat narcolepsy, for other uses.

As this article in Forbes notes, the decision is potentially a game-changer since the industry has been paying billions of dollars in fines for violation of the off-label use marketing rules. Does Misdemeanor Misbranding Survive Caronia? 

There is reason to think that a blanket invalidation of FDA rules relating to off-label use marketing is still aways off since this is still just one circuit and the conviction in Caronia relied so heavily on the speech in question. It is still possible to argue that the misbranding question (which is the actual legal authority under which the off-label use regulation is predicted) is generally unaffected and that, in any case, this decision by no means signals that speech cannot be evidence of misbranding conduct. For more on the case see Free Speech and Off-Label Use Conviction  And there is evidence that settlements related to marketing practices continue. Shire Takes $57.5 Charge to Settle Marketing Probe .Yet, it hardly seems like the FDA would want the same Supreme Court that decided Sorrell to review Caronia. And indeed, word is that the FDA is not seeking review. FDA Won't Appeal Free-Speech Marketing. I wouldn't either.That doesn't mean that this decision represents a good development. To the contrary, as I have warned elsewhere, it may well make a good deal of law that we have generally thought of as well-settled, suddenly unstable. 

As the dissent noted: "The majority has chosen to apply heightened scrutiny to this case, though we have not done so in other cases involving the use of speech as evidence of intent—for example, in antidiscrimination actions or prosecutions for criminalinducement, attempt, and conspiracy—cases I cannot meaningfully distinguishfrom this one. The majority’s decision today extends heightened scrutiny further than the Supreme Court ever has, and calls into question a fundamental regime of federal regulation that has existed for more than a century. I respectfully dissent." (dissenting opinion at 30)

Free speech and the rating agencies

Now that the United States has sued Standard and Poor's over the subprime mortgage fiasco, see The S&P Lawsuit, it will be interesting to see whether S & P will raise a First Amendment defense as it has in some of the civil cases.  Some observers say that the courts are likely to give it a chilly reception. S&P Lawsuit First Amendment Defense May Fare Poorly, Experts Say. I am inclined to agree, although not because the case law wouldn't permit the courts to consider this defense. Rather, I suspect the implications for permitting the rating agency's opinions to be treated like fully protected opinions and subjected to a New York Times v. Sullivan standard, a standard under which a certain amount of falsity is protected as a necessary evil so that we can protect the speech that we value, would have intolerable implications for 10(b)5 and maybe fraud cases generally. 

Supreme Court Fellows Program

The deadline for applying for a U.S. Supreme Court Fellowship is November 30 (apply here). 

Over the past forty years, law professors have been well represented among the Fellows contributing to the work of the Supreme Court, the Federal Judicial Ctr., the Administrative Office of the U.S. Courts, and (more recently) the U.S. Sentencing Commission. This is a great opportunity for a sabbatical/leave year for profs whose scholarship would benefit from the experience.

Good luck!

The Texas “Ten Percent” Policy and School Quality

In judging the affirmative action program in Fisher v. University of Texas, an important question is the extent to which the Texas legislature's “ten percent” policy provides an effective race-neutral strategy for promoting diversity in the UT student body.

Under the Texas policy, the state's public undergraduate institutions admit all applicants whose grade point averages are in the top ten percent of their high schools’ graduating classes. (UT-Austin can limit top ten percent admissions to 75 percent of its entering class.) If colleges draw from the top ten percent at all high schools, their entering classes could mirror the ethnic and racial diversity of the high schools' students. 

As I’ve written before, the Texas policy may be even more valuable in the incentive it provides for improving the educational quality of public high schools. Consider the potential impact if there were wider use of high class rank admissions policies.

The Mandate Challenge: Testing the Counter-Narratives

In the wake of the Affordable Care Act decision, competing narratives have emerged on the significance of the Court's holding that the Commerce Clause does not permit regulation of inactivity. According to Randy Barnett, David Rivkin and other observers, the Court may have upheld the individual mandate to purchase health care coverage under the taxing power, but Congress lost an important legislative option when the Court concluded that purchase mandates cannot be justified under the Commerce Clause.

In the alternative view that also has been taken by Einer Elhauge, John Yoo and others, Congress lost nothing in the decision. Not only was the Affordable Care Act's mandate upheld, but a majority of the  Court reaffirmed its past 75 years of Commerce Clause doctrine, including Wickard v. Filburn. Congress still can enact mandates, through either its Commerce Clause power or its taxing power. The barriers to purchase mandates are political, not constitutional.

Which narrative is correct? We can test them by positing hypothetical purchase mandates and seeing whether they would survive the majority's analysis in NFIB v. Sibelius. I'll start the challenge with some examples from the pre-decision debate:

1. Justice Antonin Scalia wondered whether Congress could enhance the health of Americans by requiring them to purchase broccoli. Yes--Under the commerce power, Congress can require groceries and restaurants to include broccoli with every sale of food.

2. Justice Samuel Alito wondered whether Congress could require people to carry burial insurance. Yes--In fact, there already is a small, lump sum death benefit as part of Social Security.

3. Judge Roger Vinson wondered whether Congress could require people to buy GM cars to protect the government's ownership stake in the company. Yes--Congress can tell service stations that they may sell gasoline only to owners of GM cars.

What can't Congress make us buy by regulating us once we're engaged in some kind of economic activity, or by exercising the taxing power?

Roberts Really Did Switch His Vote On Health Care Law

According to a report from CBS News, based on interviews rather than deft exigesis of the ACA opinioin, Justice Roberts switched his vote on the health care law between the intial conference and the final product.  And, according to this report, this lead to "desperate" and "relentless" lobbying by Justice Kennedy to bring him back to right side.  Apparently, everyone at the Court is chit-chatting about this remarkable turn of events.

As Jeffrey Toobin and others have pointed out, this vote may have given Roberts the "credibility" to comfortably vote down affirmative action and  key parts of the Voting Rights Act.  But maybe we can dream that the vote also gave Kennedy cred with the right making him feel comfortable not joining Roberts in these efforts. 

Or maybe Obama will get re-elected and, mid-term, Justice Scalia will take E.J.Dionne's sage advice and resign.  Given his passion for changing federal immigration policy, it seems to me that Scalia would be perfect in the muscular role of Senator rather than serving as a bureaucrat working for the least dangerous branch.  Hey - he could even work to amend the Voting Rights Act.  I hear some conservatives used to think that legislatures were a really great way to make public policy.

Law Professors Comment On The Supreme Court's Health Law Decision

Not surprisingly, this has been a field day for law professors who have an opinion on the Justice Robert's opinion in the ACA case.  For convenience, we've brought links to commentary together in one convenient place.  They're in no particular order and readers are encouraged to add additional links within the comments.

Mike Dorf here

Jonathan Adler here

Tim Jost here

Randy Barnett here

Larry Solum here, here, here, and here

Richard Epstein here

David Bernstein here

Laurence Tribe here

Adam Winkler here

Nicole Huberfeld here

Rick Hills here

Howard Wasserman here

Alan Morrison here

Tom Smith here

Rick Hasen here

NFIB v. Sebelius

I will leave it to the constitutional scholars among us to comment on the decision itself. I only have one question to ask: Who out there predicted that the opinion upholding the mandate would have Chief Justice Roberts as the swing vote?

Justice Thomas and Frederick Douglass

Justice Thomas starts off his Grutter dissent with this quote from a Frederick Douglass speech. 

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury.

Here, Thomas appropriates these words of a venerable leader to argue that he, like Douglass, opposes affirmative action in higher education.

There are a few problems. 

First, Douglass was a great champion of the Freedman’s Bureau Act which actually did help black people on the basis of race in various ways, most successfully in building schools for freedmen. But that’s a relatively small problem. 

A bigger problem is that Thomas leaves out this crucial portion of the quote:

Let him alone. If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him alone, don't disturb him! If you see him going into a work-shop, just let him alone, -- your interference is doing him positive injury.

That is, Douglass was not telling whites not to assist blacks, but instead not to harm them.  Douglass, a well-read and intelligent man, understood the zeitgeist of his time.  Something akin to affirmative action in higher education was not on the table in 1865, the year the speech was made.  The white masses were not itching to redistribute the benefits of American democracy.  It’s nonsensical, then, to argue that Douglass was imploring whites to not enact policies similar to that of University of Michigan when whites of that era never were predisposed to do as such.  Who argues against a position that no one is taking?  Rather, Douglass appreciated that whites, particularly in the South, were willing to disfranchise, discriminate against, threaten and even kill scores of blacks to maintain white supremacy. 

The biggest problem , however, is that Douglass mentions the sort of policies that he deemed to be causing blacks “positive injury,” former Massachusetts Governor General Nathaniel Banks’ black labor policy.  Once Gen. Banks assumed control of Louisiana he instituted a black labor policy in January of 1863.  According to the plan, “Blacks, unless they had a job in town, must work on a plantation. They could choose their own employers but were required to sign a contract and work for one year with whomever they signed....  Other benefits included rations, medical treatment, schooling for their children, quarters, fuel, and a garden plot of at least one acre. Furthermore, the regulations outlawed physical abuse of any kind and established the work period as dawn to dusk."  Banks’ policy was instituted as some sort of paternalistic effort to prepare ex-slaves for freedom.  The plan, in other words, was implemented with supposedly beneficial purposes for blacks.  It is completely unreasonable to compare the Banks plan to University of Michigan’s admissions policies.

My problem with Thomas’ citing of Douglass is that it’s completely ahistorical and perhaps disingenuous.  If Thomas thinks that affirmative action is a bad idea, that’s fine.  But don’t take a quote completely out of its historical context, exclude important parts of that quote, and distort the memory of a man who can no longer speak for himself.  What was done here is almost as bad as those conservatives who similarly turn Martin Luther King Jr. into some anti-affirmative action superhero.

 

Roads Not Taken to RadLAX

Justice Scalia writing for eight member of the Court (notice of Justice Kennedy’s recusal came the morning of oral arguments) went out of his way to deny that past practice under the Bankruptcy Act need be considered to justify the Court’s conclusion that credit bidding must be permitted under the Code: “As for pre-Code practices, they can be relevant to the interpretation of an ambiguous text, but we find no textual ambiguity here.” That two Courts of Appeal had concluded otherwise garnered not a mention (the Fifth Circuit in Pacific Lumber and the Third in Philadelphia Newspapers). I was disappointed by the failure of the Court to address pre-Code practice and not only because a nifty history of that practice was one of the burdens of the Professors’ Brief. Without the context of the 1976 Pine Gate decision, which had denied a secured lender the right to credit bid and which, in turn, led to the enactment of Bankruptcy Code § 365(k) explicitly preserving the right in pre-confirmation sales, and the long history of credit bidding, the Court’s claim of “no textual ambiguity” sounds more like an ipse dixit than a reasoned conclusion.

Less disappointing but a bit disconcerting was Justice Scalia’s statement that “the pros and cons of credit-bidding are for the consideration of Congress, not the courts.” Well, yes but how far does Congressional power extend when it comes to eliminating credit bidding? (Although I hardly anticipate this or any future Congress would be likely to do so.) The second (and, frankly, more interesting) argument in the Professors’ Brief was that eliminating secured lenders’ rights to credit bid would be unconstitutional. Not that I expected the Court to pick up this line of argument but I would have preferred that it not expressly leave the question open for subsequent Congressional muddling. On the other hand, plenty of others disagree that credit bidding is a right to property protected by the Fifth Amendment so the Court’s snippet of dicta will keep the argument open.

Most Court watchers knew the debtor was in for a particularly tough time when the Solicitor General moved to intervene on behalf of the lenders. I wonder how many times the SG has been on the losing side in a bankruptcy case? And the SG’s argument caught the Court’s attention: “That right [to credit bid] is particularly important for the Federal Government, which is frequently a secured creditor in bankruptcy and which often lacks appropriations authority to throw good money after bad in a cash-only bankruptcy auction.” If you’re a legal realist, this is the nub of the Court’s “no textual ambiguity” interpretive bent. To permit a plan of reorganization to deny the right to credit bid would be to open the door to sales over the objection of the federal government. And, unlike private lenders who frequently have the wherewithal to pony up enough cash to bid up to the amount of their loans (like in Philadelphia Newspapers), federal agencies simply do not have the power to do so. To hope for the Court to cut off its co-equal branches like this was a lot for the debtor to expect.

Scott Pryor

Guest Blogger Scott Pryor

I'm pleased to welcome into the Lounge my friend, and Regent law professor, Scott Pryor (pictured).  Scott teaches and writes in the UCC/commercial/bankruptcy area.  He has been at Regent since 1998, was a Fulbright Scholar (India) in 2009, and a visitor at Campbell during the 2010-11 academic year.  You can view a list of his scholarly works (many of them in downloadable form) by clicking on the link above. 

And he has his own blog:  Pryor Thoughts.

Scott will be sharing his thoughts on the U.S. Supreme Court's decision, announced earlier today, in the bankruptcy case of RADLAX GATEWAY HOTEL, LLC, ET AL. v. AMALGAMATED BANK.

Scott's first post:

Plain Meaning With a Twist

While it might not pack the excitement of some Supreme Court cases, RadLAX Gateway Hotel v. Amalgamated Bank is certainly important to the world of bankruptcy law.  On Tuesday the Court made an easy case of it, perhaps a bit easier than it should have but one that I ultimately believe was correct.  (Disclosure: I was one of the signers of the so-called “Professors’ Brief” urging the Court to affirm the decision of the Seventh Circuit, which it did, albeit on different grounds.)

Overcoming a straightforward “plain meaning” argument by the debtor, the Supreme Court unanimously held that “or” doesn’t mean “or” when to do so would be “be hyperliteral and contrary to common sense.” When is that the case?  According to the Court, when to do so would allow the general rule to swallow the particular.  A rather pedantic position but one that the Court uses with some regularity.

And how do we know when that’s the case?  When is the plain meaning not so plain?  Here the Court (did I mention that Justice Scalia authored the Court’s opinion?) cited two factors.  When application of the general principal would render the specific rule superfluous.  In other words, when the specific maps entirely within the general rule.  And, second, when there are no “textual indications that point in the other direction.”  Of course, that’s what RadLAX argued here; that the disjunctive “or” between Bankruptcy Code § 1129(b)(2)(A)(ii) and (iii) contraindicated the general rule of statutory construction. But there were no buyers on the Court for RadLAX’s argument. Some thoughts on why later.

Political Spin and the Constitution

Oral arguments last week suggest an activist decision by the Supreme Court in the challenges to the Affordable Care Act. Indeed, in their response to the taxing power argument, the justices seemed poised to adopt a rather intrusive doctrine of policing political speech by elected officials. While some critics claimed that the mandate could not have qualified as a valid tax however it was characterized, the mandate has failed as a tax primarily because Congress called it a penalty and expressly disclaimed any intent to invoke its taxing power.

Consider, then, the following hypothetical version of the mandate's enactment. Suppose Democratic members of Congress discussed the taxing power as a source of authority and came to the incorrect conclusion that they could not use that power but instead had to use the Commerce Clause power to pass a valid mandate. They therefore called the levy for failing to carry insurance a penalty and disavowed any reliance on the taxing power, even though the levy was pegged at 2.5 percent of income (with minimum and maximum levies).

Should the Court really hold Congress to an inaccurate understanding of constitutional law? What would be the harm if the Court upheld the mandate as a valid exercise of the taxing power?

Is It Really a Joke to Expect Justices to Read Statutes?

Ever since Marbury v. Madison, basic constitutional law has said that the Supreme Court can review statutes for their constitutionality.  It's an extraordinary power to sit in judgment of a co-equal branch of government, but it's one that most people believe is important to our democracy.

But with that awesome power, shouldn't the Justices have the responsibility to read the statutes that they sit in judgment of?  Regardless of whether the statute is 3 pages (in Herman Cain's ideal world) or 2700 pages (as in the Affordable Care Act), if the Justices are going to determine whether a law passed by Congress and signed into law by the President is constitutional, I think it's the least they can do.

Justice Scalia might actually disagree.  In fact, apparently he thinks it's laughable to do so, asking at oral argument (to laughter) "You really want us to go through these 2,700 pages?" and "do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?"  He even joked that it might be considered cruel and unusual punishment.

On the one hand, he could just be making a joke here.  But I'm not sure he is.  I read and heard this as him really saying that he thought it was too burdensome for the Court to read the law that it is sitting in judgment of.  And if that's true, then he should quit his job for something easier.

I also understand that one of the conservative tropes about the Affordable Care Act is that none of the members of Congress read the whole thing.  That may be true, but it doesn't have one lick of relevance to the Supreme Court's job.  Members of Congress can be voted out of office for not reading a bill they voted for. They also aren't sitting in judgment of another co-equal branch of government.  The Supreme Court is, and no one can vote them out of office for their actions.

At the very least, they have to read what's before them.  That's not too much to ask before exercising their most important power.

The Individual Mandate Oral Argument: They Were Talking About Me

During Tuesday's Supreme Court oral arguments about the Affordable Care Act's individual mandate, the Justices and the lawyers spent a lot of time talking about young healthy people.  The conservative Justices in particular were worried about making young healthy people pay for a product (health insurance) they don't need.  So much attention was paid to this issue that the fate of the tens of millions of uninsured people in this country may just come down to whether Chief Justice Roberts and Justice Kennedy think the law is unfair to a bunch of twenty year olds with a false sense of invincibility.

When listening to the audio of the argument yesterday morning, something came over me that I hadn't connected with this case before -- they were talking about me.  No, not me now, but me from 19 years ago.  And, considering the Justices' concern Tuesday about young healthy people, I am an excellent argument for this law.

Almost 19 years ago to the day, I was a perfectly healthy twenty year old enjoying life as a junior in college.  I was slim, fit, and athletic.  I ate reasonably well (for a college student), didn't drink or smoke, and got a good amount of sleep (even if at odd hours of the night/day).  I gave my body no thought because it worked perfectly.

Until it didn't.  After getting a pretty ordinary tooth/gum infection and being prescribed amoxycillin, a drug that dentists prescribe like water, I had an adverse reaction to the drug.  My body deteriorated in a way that still shocks people in the medical profession, who seem to listen to my medical history and look around to drag their nearest colleague into the room to hear the story because they know no one would believe it if they didn't hear it straight from the patient's mouth.

Three weeks after taking the amoxycillin, I was rushed to the hospital and underwent emergency abdominal surgery to remove 1/4 of my large intestine, which had become so infected that it was essentially useless (and had a great name for the condition - toxic megacolon). Over the course of the next year, I spent thirty days in hospitals and had four different surgeries. I had a colostomy for 6 weeks, a severe wound infection that required months of excruciating care, and off and on abdominal pain that affected my every movement.

I'm perfectly fine now, with no real lasting effects other than some interesting scars on my abdomen (and no belly button, which makes my kids laugh).  That is, no real lasting effects except the risk, that I'll live with for the rest of my life, that at any moment I can return to the hospital again with an abdominal obstruction, something people who have had both have said is pain that's comparable to childbirth.  It's happened three times over the past 18 years (on top of twice in the first year following the incident) and could never happen again . . . or could happen while I'm writing this blog post.

My year of treatment back in 1993/1994 cost several hundred thousand dollars, possibly close to half a million.   My three subsequent hospitalizations probably approached that amount as well.  I have been hospitalized in three different states and cared for by doctors in at least two others.  Forget about the aggregation principle from Wickard v. Filburn.  I alone have had a substantial effect on interstate commerce.

But I was lucky.  I was born into a family with two parents who made a very comfortable living.  My father's job provided health insurance for the entire family.  And I, the perfectly healthy twenty year old who didn't have a concern in the world for his own health, didn't have to worry about what would have happened had I failed to act on my own because of a misperception of invincibility and wound up at the hospital uninsured yet needing emergency surgery.

I would have gotten some level of emergency care (EMTALA was passed 7 years earlier) but would I have had the same level of care?  Would my surgery have been delayed and the risk of death I faced, which I learned later was quite real, would have increased?  Would my follow up care have been the same?  Would I have a permanent colostomy now because the follow-up surgery that reversed it would not have been emergency surgery?  Would my family be crippled economically having to pay those bills?  Would my siblings not have gone to college because my family would have to pay for me to be alive?

I could go on, but I'll stop there.  Nineteen years ago, I was that invincible healthy young person the Justices were talking about Tuesday.  And then, all of a sudden, I wasn't . . . and I was thrust into interstate commerce in a clear, indisputable, and substantial way.

Acoustic Separation In Supreme Court Reporting

The LA Times reports:

"Justices Poised to Strike Down Entire Health Care Law"

CNN reports:

"Supreme Court Appears Willing to Let Most of Health Care Law Stand"

How the hell are Calvin and I supposed to prognosticate about the Fall 2012 election when there are apparently two different groups of Justices claiming to be the "Supreme Court"? 

ACA Oral Argument

While initial media reports suggest the individual mandate is in big trouble, Justice Kennedy asked questions indicative of someone receptive to the arguments in favor of the individual mandate. So did Justice Roberts. While both of them also challenged the Solicitor General, there still is good reason to think that the mandate could be upheld by a 6-3 vote.

The justices want some limiting principles, but there are more than enough distinguishing features of the health care insurance market to assure them that upholding the mandate will not result in a broad, federal power to force people to buy things they don't want to buy.

For my commentary on yesterday's hearings and further discussion about the mandate, see this post on CNN. For the oral argument transcript, see here

[cross-posted at Health Law Profs]

 

There Really Is No There There

While I agree with Calvin Massey that Linda Greenhouse could have articulated the case in favor of the individual mandate more effectively, I think she’s correct in her bottom line about the challenge to the mandate.

In particular, the constitutional challenge ultimately rests on a flawed premise—that if Congress can require people to buy a good or service solely because they are living in the United States, the commerce clause will be converted into an expansive power to compel just about any purchase. Today, we must buy health care coverage, tomorrow we might have to buy broccoli or GM cars.

But in fact, invalidation of the individual mandate would protect the public from only a few purchase mandates—mandates to purchase some kinds of insurance.

To be sure, a ruling against the mandate would mean that Congress could not force us to go out and buy broccoli or GM cars. But the government already has other ways to make us buy those goods. Congress still would have the power to require grocery stores and restaurants to include broccoli with every sale, and it still would have the power to require automobile dealers to sell only GM vehicles. If Congress really wants to make us buy something, it can find a voluntary economic transaction to regulate. That the individual mandate is not tied to a voluntary economic transaction simply reflects the fact that health care insurance must be procured in advance of the time when health care is needed.

The Talk of the...Bench

Of the 327 films I watched to select the films for Advocacy to Zealousness, one of my favorites is The Talk of the Town (1942), which chronicles the experiences of a persnickety law professor who is trying to complete a book while a felon secretly hides in the attic of the cottage he is renting for the summer. The felon is brilliantly portrayed by Cary Grant (pictured, far left, and born today in 1904). The storyline includes the possibility of the professor's appointment to the U.S. Supreme Court. With the recent appointment of Associate Justice Elena Kagan, we know that such an honor -- although somewhat rare in recent times -- is far from fictitious. So, in honor of this wonderful film, and what would have been Grant's 108th birthday, today's question concerns High Court appointments. Which current law professors or deans would make good candidates? (Bonus points will be awarded to anyone who can list Cary Grant's given name.)