Decisions to come shortly on three cases. As decisions come in revese order of seniority, the Health Care cases are expected to be last. How long it takes to reach them will depend on how long the comments from the bench (both by the author and by any dissenters who wish to comment from the bench) take.
Besides the Health Care cases, the other major opinion left outstanding is the Stolen Valor Act -- criminaliing the making of false representations about military honors received. The Roberts Court is developing a reputation for taking a broad view of the Free Speech Clause and a narrow view of traditional exceptions to that clause (and not just in campaign finance cases). I will have more on that in a week or so after I have digested the last two weeks of opinions. This case could confirm that reputation.
Updates will follow as opinions are released and posted.
Update 1: Justice Kennedy has the judgment and plurality opinion in United States v. Alvarez. By a 6-3 vote, the current version of the Stolen Valor Act is unconstitutional. Justice Breyer and Kagan concur suggesting that the problem is the current language in the Stolen Valor Act, implying that a revised version might not violate the First Amendment.
Update 2: Second case (First American dealing with mortgage fees was dismissed). Health Care opinion, per Chief Justice Roberts, finds that individual mandate survives under the Tax and Spend Clause. Medicaid provision apparently "limited." Bottom line appears to be that full Affordable Care Act is constitutional, but may be some restrictions on ability to terminate states from participation in the Medicaid program.
As is not unusual, it is taking a bit of time for opinions to post properly, so will be back around 11:00 a.m. EDT with links to the opinions added in, and a little more clarity on the ACA decision.
Update 3: Justice Roberts issued the opinon of the Court only with respect to the anti-tax injunction and the tax and spend clause. He speaks for himself on the Commerce Clause and Necessary and Proper Clause, and for himself, Justice Breyer, and Justice Kagan on the Medicaid Expansion.
Justice Ginsburg writing for herself and Justice Sotomayor on the Medicaid Expansion finding it fully valid, but agrees with Justice Roberts that Congress would have wanted the penalty provision (cutting off funding from states that did not want to join the expansion) severed if that provision was found unconstitutional. Justice Ginsburg writing for herself, Justice Sotomayor, Justice Breyer, and Justice Kagan would find the mandate consitutional under the Commerce Clause.
A joint opinin for the four dissenters (Scalia, Kennedy, Thomas, and Alito) would find that the individual mandate is not justified by either the Commerce Clause or the Tax and Spend Clause. They would find that the size of the Medicaid program makes it per se coercive. (Note: Their reasoning would arguably invalidate the existing program, not just the expansion.) They would also reject any request for severability.
Justice Thomas also writes separately to suggest that the test of "affecting commerce" is an inappropriate Commerce Clause Test.
Bottom Lines: 9-0 that Anti-Tax Injunction does not apply; 5-4 that the individual mandate violates Commerce Clause (but that finding might be non-binding dicta as); 5-4 that the individual mandate is authorized by the Tax and Spend Clause; 7-2 that the penalty provision of the Medicaid Expansion is an unconstitutional condition but 5-4 that the penalty provision is severable giving states an option to participate in Old Medicaid or New Medicaid.
In an unusual move, the Supreme Court set an entire week's argument docket aside for the arguments on the Affordable Care Act. (The Supreme Court only has fourteen weeks of argument for the entire year in a typical year and normally hears six separate cases during a week).
For more detailed information about the arguments Scotusblog has done an excellent job of following the cases and has a case page which includes a separate detailed analysis for each of the four issues.
Monday's morning argument deals with the Anti-Tax Injunction Act. This law, originally passed after the Civil War, requires that most lawsuits challenging the validity of the tax must be postponed until after a challenging party has actually been required to pay the tax. At an early point in the case, the Administration suggested that the sum to be paid by those who do not get insurance might qualify as a tax. While the Administration no longer takes this position, the Fourth Circuit (and one of the judges on the DC Circuit) have held that the Anti-Tax Injunction Act does apply. Since the Administration has backed off from its earlier position, the Court appointed a lawyer to argue on behalf of the position taken by the Fourth Circuit.
Three key things about the Anti-Tax Injunction Act. First, it applies to other taxes beyond the Affordable Care Act. Thus, the Administration has taken a position supporting a broad interpretation of the Anti-Tax Injunction Act (merely suggesting that this fee is not a tax), but the challengers (the National Federation of Independent Businesses and 26 states) have argued for a narrow interpretation that greatly restricts the availability of the act in other cases. Second, the biggest hallmark of the Rehnquist and Roberts Courts have been a tendency to support procedural rules that prevent parties from ever raising a claim in court. Third, this issue is really about the minutia of statutory construction what did those members of Congress in the 1860s mean by a tax and does the fee established by the Affordable Care Act fit that technical definition.
The Court has given the Court appointed attorney 40 minutes, the Solicitor General 30 minutes, and the challengers 20 minutes. (Guess who is not getting what they want on this issue)
Tuesday's morning argument is the big enchilda -- the constitutionality of the individual mandate. Not much more needsto be said about this issue that has not already been said. There are three clauses of the Constitution at issue here (all part of Article I, Section 8) -- the commerce clause, the tax and spend clause, and the necessary and proper clause. While the severability argument is not until Wednesday, the positions taken by the parties on that issue show that the Administration has thought more about the Necessary and Proper Clause than has the other side. Two things to look for when the audio and transcript is released on Tuesday afternoon. How many references are made to the 1792 Militia Act which required every able-bodied man to own a firearm? Is any mention made of the fact that one of the plaintiffs had to file bankruptcy due to health care costs?
Yesterday, the Eleventh Circuit (based in Atlanta and covering Alabama, Florida, and Georgia) became the second appellate court to rule on the constitutionality of the Affordable Care Act. Like the Sixth Circuit, the opinion from the Eleventh Circuit was not unanimous.
The decision from the panel was a loss for both sides. On the one hand, the panel upheld the ruling of the district court that the indiviudal mandate was unconstitutional. However, unlike the district court, the panel found that the individual mandate could be severed from the rest of the statute. (The panel like the district court also rejected a challenge to the new provisions on medicaid which asserted that those new provisions coerced the states.)
As I have previoiusly noted, I think that the challenge to the Affordable Care Act involves two paradoxes.
The first paradox is legal. For this type of challenge, the Necessary and Proper Clause (one of the enumerated powers) is in tension with decisions on when parts of a bill are severable. If a court (say the Supreme Court) were to decide that the individual mandate was essential to passage of the regulation of the health insurance industry that would tend to support the argument that the mandate was necessary to the regulation of interstate commerce (i.e. health insurance) and thus would be authorized under the necessary and proper clause. On the other hand, if the individual mandate is not necessary to that regulation, it would seem to support severing the individual mandate from the bill.
The second paradox is political. The individual mandate was the conservative alternative to a public opition or single payer system. Conservatives are challenging the individual mandate in an effort to strike down the bill. However, if they only succeed in striking down the individual mandate, the resulting bill (which would still go into effect) would be the worst possible result from the conservative perspective.
Since the Sixth and the Eleventh have come to opposite conclusions on the constitutionality of the Affordable Care Act, it is almost certain that this case will be heard by the Supreme Court (probably in February, March, or April. The Supreme Court may wait for the decision from the Fourth Circuit before deciding which of the three cases they will take. (They may opt to take all three.) Since the Fourth Circuit has yet to issue its decision, if the Supremes decide to wait for the Fourth before acting, there is a chance that the argument might be pushed off until October 2012 or later (which the Supreme Court would prefer).
Today, a judge in Virginia issued a decision in a lawsuit filed by the State of Virginia challenging the Patient Protection and Affordable Care Act (a/k/a Health Care Reform Bill). The total decision runs 42 pages, but some things should be highlighted.
1) This decision is not the first decision on the bill. As the White House noted in its reponse, fourteen other judges have ruled on this issue -- 12 dismissing the challenges and two ruling in favor of the bill.
2) The decision has a major logical flaw. It blurs the distinction between means and ends. The decision concedes that the overall bill fits within the scope of the commerce clause. However, it analyzes the individual mandate under the commerce clause and then proceeds to hold that since it is not allowed by the commerce clause, it can't be allowed by the necessary and proper clause. However, if the individual mandate is analyzed as a means then it only needs to be rationally related to the end of better regulating insurance markets.
3) The decision held that the payment provision of the bill for those who do not obtain health insurance was a penalty,not a tax. This holding creates a clear fix (if Democrats ever have enough votes for a fix). this fix would be to create a "health care tax" as part of income tax but then give a credit for the full amount for people who have qualified coverage with a public option for those who do not purchase insurance.
4) The most important part of the decision had to deal with severability. While the Act does not contain an express severability clause, recent decisions of the United States Supreme Court have recognized a broad scope of implied severability. The bottom line of the decision was that only the individual mandate was struck down, with the rest of the act left intact.
While the right wing press will have some glee for the next week or so spinning this decision, several things need to be remembered.
First, this is merely a decision of a federal trial court on undisputed facts (by a Republican appointee). As it was on undisputed facts, it is given no deference at the next level where the legal aspects will be reviewed from scratch.