I think Andrew Koppelman gets it in one paragraph:
The philosophy they relied upon, which I’ll call Tough Luck Libertarianism, holds that property rights are absolute and any redistribution to care for the sick violates those rights. If you’re sick, and you can’t afford to pay for medical care with your own money, that’s your tough luck. The judges’ willingness to read this notion into the Constitution is very big news, dwarfing even the fate of the ACA, which is itself the most important social legislation in decades.
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What, then, led the [liberal] academics to misread this [ACA] case [sic]? In a sense, they resemble the conservative leaders of the bar at the dawn of the New Deal. President Franklin Roosevelt’s alphabet soup of federal programs ran counter to established doctrine denying the constitutionality of economic and social legislation, state or federal. Steeped in that tradition, many legal experts recoiled in horror at FDR’s plans.
Amid a Great Depression, and under tremendous pressure from a popular president and his huge congressional majority, however, this expert consensus gave way. The Supreme Court abandoned its laissez faire understanding of the Constitution’s Commerce Clause (among other provisions) so as to permit New Deal programs.
Lane seems to believe our Constitutional history began during the Lochner Era. McCulloch v. Maryland? Never heard of it says Lane. Gibbons v. Ogden? What's that says Lane. But forget all that.
Lane (and Barnett) are happy to see the New Deal jurisprudence overturned. This is the conservative project. This is the Constitution in Exile movement. Janice Rogers Brown explained it clearly and forthrightly (PDF):
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For those who may have missed it, I wrote a number of posts on the challenge to the Affordable Care Act. Here are links to some of them:
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The Supreme Court, in a 5-4 decision, today ruled that juvenile sentences to life without parole violate the 8th Amendment ban on cruel and unusual punishment.
The opinion is here.
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The Supreme Court has invalidated three of the four parts of Arizona's controversial immigration law, SB 1070, but it left intact for now the "show me your papers" provision, saying that part could take effect, although it may be subject to future challenges. The opinion is here.
The clueless Governor of AZ called the decision a victory. [More...]
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Last night, Justice Ruth Bader Ginsburg spoke at a conference hosted by the American Constitution Society. While not giving any clues to how the court will rule on the Affordable Care Act, Arizona's immigration law, or other important cases still to be decided this term, she did say the justices were in "sharp disagreement."
"As one may expect, many of the most controversial cases remain pending," she noted. "So it is likely that the sharp disagreement rate will go up next week and the week after."
In the context of the healthcare law, she described the individual mandate issue this way: [More...]
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At balkinization, Jack Balkin points to his Atlantic article in which he discusses a 1950 taxing power case that seems clinching to me with regard to whether the individual mandate penalty is constitutional as a valid exercise of Congress' taxing power. I'm surprised it was not discussed more (and feel remiss in not having discussed it myself.) Balkin writes:
It also doesn't matter that the real purpose of the tax is to regulate behavior. Lots of taxes are designed to do just that -- think about taxes on polluters as an example -- and federal taxes on drugs are designed to keep people from buying or selling them. In 1950, the Court upheld a tax on marijuana, explaining that "a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary." "Nor does a tax statute necessarily fall," the Court added, "because it touches on activities which Congress might not otherwise regulate" under its other enumerated powers. So even if the mandate is beyond the commerce power, it can still be a constitutional exercise of the power to tax and spend for the general welfare.
The 1950 case Balkin is referring to is U.S. v. Sanchez:
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So says WaPo poll:
More Americans think Supreme Court justices will be acting mainly on their partisan political views than on a neutral reading of the law when they decide the constitutionality of President Obama’s health-care law, according to a new Washington Post-ABC News poll. Half of the public expects the justices to rule mainly based on their “partisan political views,” while fewer, 40 percent, expect their decisions to be rooted primarily “on the basis of the law.” The rest say both equally or do not have an opinion.
This is hardly surprising in light of the partisan oral arguments. Ann Althouse objects:
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[I]magine the shock when President Obama decided last week to speak plainly about what a Supreme Court decision throwing out the health-care law would mean [... W]hen Obama went after the right’s willingness to use the power of the Supreme Court for ideological purposes, conservatives were aghast — and never mind that conservatives have been castigating activist judges since at least the 1968 presidential campaign.
Perhaps conservative pundits couldn’t stand the fact that Obama called them out explicitly. “I’d just remind conservative commentators,” he said, “that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.” Yes, it is.
I've been writing about the subject recently, and yesterday, in my Sunday Daily Kos article, I wrote:
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Most Democrats are familiar with the story of FDR's battles with the Supreme Court regarding the constitutionality of his New Deal legislation. In 1937, the Court reversed course and recognized the Commerce power as empowering the Congress to enact the New Deal legislation.
In discussing the constitutionality of the individual mandate in the Affordable Care Act, much has been made of the supposed unprecedented nature of the regulation of "inactivity." I have found the argument to be so specious (particularly when one considers the power conferred by the Necessary and Proper Clause), that I have devoted little time to rebutting this argument. But in passing on another subject, I reread NLRB v. Jones & Laughlin Steel, 301 US Reports 1 (1937), the case that began the the "switch in time saves 9" process. A review of the case is instructive. Follow to the other side for the discussion.
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In a 5-4 decision, the Supreme Court today ruled all arrestees may be subjected to visual body searches when entering the general population of a jail, no matter how minor the offense for which they were arrested.
"[E]very detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed."
The opinion in Florence v. Board of Chosen Freeholders, is here. The petitioner in the case had been arrested after a traffic stop because a computer search showed a bench warrant for an old fine. [More..]
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The transformation of our federal government by FDR was made possible because the Supreme Court made a dramatic shift in view of how it should review congressional legislation. The Court adopted a policy of deference to the legislative judgments of the Congress when it exercised its commerce power, requiring only that the means chosen bear a rational relation to the ends the Congress sought to achieve. Of course, the Congress could not act in a manner that was expressly prohibited by the Constitution, but absent that, its policy choice need only be rational.
With this freedom of action, our federal government has acted countless times to address problems that were national in character. Thus we have an Environmental Protection Agency, a National Transportation Safety Board, a Federal Emergency Management Agency and, yes, a Social Security Administration and Medicare.
This change of approach by the Court was famously described in the 1938 case United States v. Carolene Products.
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The Supreme Court is hearing six hours of arguments over three days on the Affordable Care Act.
During the first of three days of historic arguments, the justices voiced doubt that a U.S. tax law requiring that people pay first and litigate later should delay the legal challenge to the president's signature domestic legislative achievement.
This morning the court heard 90 minutes of arguments from an outside lawyer about whether it is premature for it to consider the law. It agreed with both parties that it can determine the case now.
Tomorrow the Court will hear argument on the the constitutionality of the provision mandating that individuals obtain insurance. The ruling is expected by June.
Here's a thread to discuss it.
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The Supreme Court today ruled defendants have the right to effective assistance of counsel during plea bargain negotiations.
In Lafler, the court said where a defendant rejects a plea offer on the advice of counsel and proceeds to trial, in order to show counsel was ineffective,
[H]e must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.
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The Supreme Court yesterday, in 6 to 3 decision joined by Justice Elena Kagen, struck another blow at Miranda Rights. The opinion in Howes, Warden v. Fields is here.
The record in this case reveals that respondent was not taken into custody for purposes of Miranda. To be sure, respondent did not invite the interview or consent to it in advance, and he was not advised that he was free to decline to speak with the deputies.
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