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Ilya Somin at Volokh Conspiracy: Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law” . . .
The New American: Speaking of the court’s ruling last year on the constitutionality of the Affordable Care Act, Senator Lee said, “Those five lawyers wearing black robes, who we call justices, were no more empowered than the queen of England to impose a tax on the American people.” “This was a lawless act,” he added. It was indisputably a lawless act of unconstitutional lawmaking on the part of the black-robed oligarchy.
Ilya Somin at Volokh Conspiracy: A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been published or are forthcoming in the next few months. And I suspect there are many VC readers who might be interested in some or all of them. Here are my thoughts on them.
Talking Points Memo: The text of the “Right To Refuse” amendment, according to Rubio’s office: “Congress shall make no law that imposes a tax on a failure to purchase goods or services.”
No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom | Helen M. Alvare at Villanova L. Rev.
Alvare, Helen M., No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom (May 31, 2013). Villanova Law Review, Vol. 58, No. 3, pp. 379-436, 2013; George Mason Law & Economics Research Paper No. 13-35. Available at SSRN: http://ssrn.com/abstract=2272821
Christian News: The 10th Circuit Court of Appeals announced on Friday that Hobby Lobby’s appeal will go before the entire court as per the company’s request. Cases are customarily held before a panel of three judges, except in what are called en banc hearings.
Illinois Federal District Court, Bound By 7th Circuit Precedent, Grants Preliminary Injunction In Contraceptive Mandate Challenge
Religion Clause Blog: In Triune Health Group, Inc. v. U.S. Department of Health and Human Services, (ND IL, Jan. 3, 2012), an Illinois federal district court granted a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against a for-profit company that that facilitates re-entry of injured workers into the workforce
Jonathan Adler at the Volokh Conspiracy: In NFIB v. Sebelius the Supreme Court upheld the individual mandate penalty as a constitutional exercise of the federal taxing power. Although little of the briefing (and even less of the oral argument) considered the question, the Court concluded the penalty did not constitute a “direct tax.” This conclusion was necessary to sustain the penalty as a tax because direct taxes must be apportioned among the states by population. But if the penalty is not a direct tax, that does not mean it is free from constitutional defect. As David Rivkin and Lee Casey write in today’s WSJ, the Uniformity Clause of Article I, Section 8 could provide the basis for another attack on the penalty. They write:
LifeNews: In what a pro-life legal group describes as a “landmark ruling against the HHS Mandate,” a federal judge late yesterday ruled against the Obama administration’s assertion that the government’s supposed “safe harbor” was inadequate to protect religious organizations from suffering imminent harm.
The Constitutional Opening: The Sebelius ruling on the Medicaid mandate gives states an important way out.
Paul Moreno at National Review: Observers believe Obamacare could not survive without the taxing-power-based “individual mandate.” However, it is also likely that it could not survive if a large number of states refused to go along with the Medicaid mandate. And opting out of the mandate is a constitutionally orthodox alternative to secession.
The HHS Contraception Mandate vs. The Religious Freedom Restoration Act | Ed Whelan, Notre Dame L. Rev.
Edward Whelan, The HHS Contraception Mandate vs. The Religious Freedom Restoration Act, 87 Notre Dame Law Review 2179-2190 (2012). Online at: http://www.nd.edu/~ndlrev/archive_public/87ndlr5/whelan.pdf
There are thus four questions involved in determining whether the HHS mandate violates RFRA: (1) Does a person engage in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?; (2) Does the HHS mandate “substantially burden” such exercise of religion?; (3) Does application of the burden to the person further a “compelling governmental interest”?; (4) Is application of the burden to the person the “least restrictive means” of furthering a compelling governmental interest?
The HIll: Speaker John Boehner (R-Ohio) quickly reaffirmed his commitment to abolishing President Obama’s healthcare reform law after suggesting in an interview that repeal was no longer a priority for the House.
Anthony Esolen at Public Discourse: The Anti-Federalists’ early fear about Congress’s taxing power—that it would result in a tax on humans’ very existence—are now realized in the Supreme Court’s upholding of Obamacare.
Religion Clause Blog: Yesterday, yet another federal lawsuit was filed challenging on RFRA, 1st Amendment and Administrative Procedure Act grounds the contraception coverage mandate under the Affordable Care Act. The complaint (full text) in Griesedieck v. U.S. Department of Health and Human Services, (WD MO, filed 10/19/2012) . . . American Center for Law and Justice issued a press release announcing the filing of the lawsuit.
Naomi Schoenbaum at The Atlantic: Obamacare has been one of the yardsticks of Obama’s term in office and one of the touchstones of the 2012 election. Last night’s presidential debate was no exception, with health care reform mentioned at least half a dozen times. But an important piece of the discussion has been missing: is the health care law a tax or a penalty?
The Obamacare Cases Keep Coming: he individual-mandate litigation was only the beginning | Jonathan Adler at National Review
Jonathan Adler at National Review: During oral arguments in the Supreme Court challenge to the individual mandate, NFIB v. Sebelius, the plaintiff’s lawyer Paul Clement warned the justices not to make the same mistake they made in the 1970s with Buckley v. Valeo. In Buckley, the Court upheld portions of the post-Watergate campaign-finance reforms while invalidating others. The result was a muddled statute that Congress and the courts would repeatedly revisit for years to come. Repeating this approach with the Patient Protection and Affordable Care Act, Clement cautioned, could produce similar undesirable results. It’s too soon to know how quickly Congress will revisit the PPACA, but Clement’s warning already seems to be coming true in the courts.
LifeNews: Today, East Texas Baptist University (ETBU) and Houston Baptist University (HBU) filed a lawsuit in the U.S. District Court for the Southern District of Texas, asking the court for relief from the Department of Health and Human Services’ “preventative services” mandate, which forces the Christian Universities to violate their deeply held religious beliefs or pay severe fines. “Baptists in America, by virtue of their history, are particularly sensitive to coercive government actions that infringe on religious liberty,” says Eric Rassbach, Deputy General Counsel for The Becket Fund for Religious Liberty, which filed suit this morning on behalf of the two universities.
Adam Liptak at the NY Times: In June, the Supreme Court pulled off a neat trick. By upholding President Obama’s health care law, it simultaneously bolstered public support for the law and hurt its own reputation.
ABA Journal: Justice Antonin Scalia was “enraged” when Chief Justice John G. Roberts Jr. switched his vote and created the majority needed to uphold the Obama administration’s health care law, according to a new book by journalist Jeffrey Toobin.
Michael Ramsey at the Originalism Blog: Originalist law professor Mike Paulsen has written a short essay defending Chief Justice Roberts’s decision upholding the Health Care Law as a tax. It might seem like a serious matter that a right wing originalist endorses Roberts’s decision. Perhaps critics of Roberts’s opinion need to rethink their criticisms. But no such rethinking is necessary, because Paulsen’s defense of the opinion is insufficient.
Reuters at the Huffington Post: U.S. Supreme Court Justice Ruth Bader Ginsburg, 79, the eldest member of the bench and leader of its liberal wing, said she cracked two ribs in June but met all her work obligations and remains committed to staying on the court at least three more years.
Michael Stokes Paulsen at Public Discourse: The Supreme Court’s ruling upholding the Affordable Care Act is constitutionally correct. This doesn’t prevent us from seeing the individual mandate as a tax on freedom–an exercise of Congress’s constitutional power to tax so as to destroy personal and institutional freedom with respect to health insurance.
Charles Fried at SCOTUS Blog: Finally, even though the Chief Justice’s lead opinion rejected the Commerce Clause basis for the mandate in the same terms as his four Republican colleagues, those four did not join, or even so much as mention their Chief’s opinion on this issue, but instead published a highly unusual (though not entirely unprecedented) joint opinion which – whatever its motivation – had the appearance of a deliberate repudiation, not of the opinion but of its author. It is these four surprises that are the subject of this essay. In setting the stage for these surprises, I am afraid I must go over some ground that constitutional scholars would by now have plowed into a veritable dust bowl of commentary, but the lesson I draw may be a different one from the many that are being drawn from the unexpected dénouement of this most important case.
Reuters: Supreme Court Justice Antonin Scalia on Sunday renewed his criticism of Chief Justice John Roberts’ reasoning in upholding President Barack Obama’s 2010 healthcare law and also said the Constitution undoubtedly permits some gun control.
SCOTUS Blog: Now, a Virginia university is seeking to revive its challenge to both mandates. It has asked the Court for a new order that would revive its challenges in a lower federal court. It did so in a rehearing petition, filed on Monday. The Court seldom grants such petitions, but it definitely has the power to do so. Liberty University, a religion-oriented private college in Lynchburg, Va., had its own case pending among the petitions from which the Justices chose in granting review of the Affordable Care Act (Liberty University v. Geithner, 11-438).
Boston Globe: Chief Justice John Roberts was joined by justices Elena Kagan and Stephen Breyer in writing that the Medicaid expansion was threatening to states. But he “took pains,” Parmet said, to distinguish this expansion from past ones. He writes: Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage. Indeed, the manner in which the expansion is structured indicates that while Congress may have styled the expansion a mere alteration of existing Medicaid, it recognized it was enlisting the States in a new health care program.
Sean Sugrue at Public Discourse: Though the Supreme Court has long been hostile to tax exemptions for religious reasons, the Religious Freedom Restoration Act and the Establishment Clause should give religious organizations reasons to hope that they won’t be penalized by the Obamacare “tax.”
Paul Moreno at the Wall Street Journal: The punctuation debate simply reinforced James Madison’s point in Federalist No. 41 that Congress could tax and spend only for those objects enumerated, primarily in Article I, Section 8.
Rep. Tom McClintock at The Hill: An appeal to a higher court
Steve Aden at LifeNews: When the U.S. Supreme Court upheld ObamaCare on June 28, supporters immediately pronounced “game over” on the fight against President Obama’s abortion pill mandate as well. Their thinking was that since the overall health care act had been upheld, the mandates and rules proceeding from it had been upheld, too. But such is not the case.
David Kopel at the Volokh Conspiracy: The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.
David Kopel at SCOTUS Blog: I may be a law professor by vocation, but the bar review is in my blood. My parents, Jerry and Dolores Kopel, founded and for over a quarter-century directed the Colorado Bar Refresher (now part of the BAR/BRI empire). So let’s take a look at the concrete legal rules that have emerged from NFIB v. Sebelius, as they might be presented in a bar review outline, or perhaps in a little more depth in a student study aid for Constitutional Law I.
Christian Post: After the initial appeal’s ruling in late May, Alliance Defense Fund Legal Counsel Dale Schowengerdt argued that the court went too far in determining Congress’s rationale. “In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too,” he said.
LifeNews: “The court’s opinion did not decide the issues in our cases,” said Hannah Smith, Senior Counsel at the Becket Fund for Religious Liberty. “We are challenging the Health and Human Services (HHS) mandate on religious liberty grounds which are …
Talking Points Memo: The Romney campaign has been taking pains to emphasize they believe the individual mandate is not a tax. Republican National Committee Chairman Reince Priebus didn’t get that memo. On CNN’s “Starting Point” Tuesday morning, Priebus said that the position of both the RNC and the Romney campaign is that the mandate is, in fact, a tax.
WorldNetDaily: “We’re left with Obamacare, and we are left with a damaged Constitution, and we have a Republican leadership that’s clueless in how to slow any of this down,” Limbaugh said this afternoon.
John Yoo at the Wall Street Journal: Some conservatives see a silver lining in the ObamaCare ruling. But it’s exactly the big-government disaster it appears to be.
The HIll: CBS News says it has confirmed that Supreme Court Chief Justice John Roberts changed his vote in the court’s landmark healthcare case. | How Appealing links to more reports. | Volokh Conspiracy: CBS: Roberts Switched His Vote From Invalidating the Mandate to Upholding It
The HIll (includes video interview with ABC’s George Stephanopoulis): Rep. Paul Ryan (R-Wis.) said Sunday that Supreme Court Chief Justice John Roberts, in his tie-breaking vote on the Affordable Care Act this week, had to “contort logic and reason” to reach the conclusion that President Obama’s healthcare law was constitutional.
John Eastman: If the Chief Justice’s motive was to prevent “politicization” of the Court, he should resign
John Eastman: If that is indeed what happened, and the Chief’s motive was to prevent the Court from being “politicized” and therefore having its legitimacy undermined (in the eyes of elite opinion, that is), he has done just the opposite, both for the Court and his own here-to-for stellar reputation. Indeed, if that is what happened, the Chief should resign; he would not be fit to continue in office.
ABC (includes video): “It’s a penalty, because you have a choice. You don’t have a choice to pay your taxes, right?” Carney told reporters aboard Air Force One. President Barack Obama was on his way to Colorado to view the response to the worst wildfires in the state’s history.
The Church Report: The Alliance Defense Fund of conservative Christian attorneys. Senior counsel Steven H. Aden: “ObamaCare treats American citizens like subjects. This administration has used health care law to become a dictator of conscience. The court’s decision is alarming and deeply wrong. ObamaCare holds your health care hostage and offers no real choice. Either comply and abandon your religious freedom and conscience, or resist and be fined for your faith. All current ADF legal challenges to the Obama administration’s abortion pill mandate will proceed, and we are confident that the Supreme Court will strike it down as unconstitutional.”
AP: Responding to a question about his summer break, Roberts said he planned to teach a class for two weeks in Malta, the Mediterranean island nation. “Malta, as you know, is an impregnable island fortress.” . . .
Wall Street Journal: In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice’s logic “is not to interpret the statute but to rewrite it. . . . One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.” They score the Chief Justice for carrying “verbal wizardry too far, deep into the forbidden land of the sophists.”
Wall Street Journal: ‘Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765.’
Religion Clause Blog: However the Court’s opinions did not deal with narrower conscience challenges to the individual mandate. These have generally been rejected by lower courts.
This post will be updated as new reports become available. ________ The Opinion National Federation of Independent Businesses v. Sebelius, No. 11-393 NPR: Interactive Outlined Version of the Opinion __________ Summary AP: The court’s four liberal justices, Stephen Breyer, Ruth …
he Alliance Defense Fund’s legal fight for religious freedom and freedom of conscience will continue because of the U.S. Supreme Court’s decision Thursday to leave ObamaCare intact, ADF attorneys say.
Erick Erickson at Human Events: Having gone through the opinion, I am not going to beat up on John Roberts. I am disappointed, but I want to make a few points. John Roberts is playing at a different game than the rest of us. We’re on poker. He’s on chess.
Washington Post: Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature . . . But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held.
Ezra Klein at the Washington Post: Here’s what Amar means: The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court.
Breitbart.com: As legal scholars study the Supreme Court’s decision in the Obamacare case, more and more are concluding that Justice Anthony Kennedy’s dissenting opinion, striking down the law in its entirety, was once the majority opinion–and that Chief Justice John Roberts switched his vote at a late stage. If so, it would appear that the Chief Justice may have succumbed to the bullying meted out by President Barack Obama, who attacked the Court in the aftermath of oral arguments in March, when Obamacare seemed headed for certain defeat.
The Washington Post carries the video.
Chicago Tribune: While the Supreme Court upheld a U.S. healthcare overhaul on Thursday, its decision cast doubt on whether the plan to extend health coverage to more than 30 million uninsured people will reach some of the poorest Americans.
Next Battle: Catholic Bishops Unanimous ‘In Our Vigorous Opposition to This Unjust and Illegal Mandate’
CNSNews: The U.S. Supreme Court’s decision to uphold most of the Patient Protection and Affordable Care Act—AKA Obamacare—sets the stage for an historically unprecedented confrontation between Roman Catholics and the federal government over whether Catholics remain free to exercise their religion in the United States of America. | USCCB press release: Bishops Renew Plea To Congress And Administration To Repair Affordable Care Act
One News: Casey Mattox of Alliance Defense Fund says . . . Americans have been very concerned about the attacks on religious freedom and the taxpayer funding of abortion that ObamaCare entails,” he accounts. “And the decision, while it will not directly address those issues, goes straight to the heart of this law — the engine that drives all of those violations of religious liberty and the sanctity of life, and that’s the individual mandate.” [more]
Health care decision: Religious reaction swift; Catholic groups’ lawsuits will continue | Washington Post
Washington Post: Alliance Defense Fund, an evangelical-founded legal advocacy group, called the court’s decision “alarming and deeply wrong.”
An Alliance Defense Fund attorney will be available for media interviews on the steps of the U.S. Supreme Court Thursday in anticipation of the high court’s potential ruling on the constitutionality of ObamaCare.
Lyle Denniston at the SCOTUS Blog: If the Court does decide to decide, it has four issues before it — three of which are somewhat clustered, and one of which stands somewhat (but not entirely) alone. The three that are definitely bunched together could be decided with a ruling on just one of them, or with a ruling on just two, or with a ruling on all three, separately . . . So the individual mandate is one of the clustered issues. The second is whether the Court has the authority to decide the fate of the mandate. And the third is whether, if the mandate is struck down as unconstitutional, other parts of the massive Affordable Care Act must fall with it — if any.
MSNBC: If the law is overturned, there’s nothing to stop the federal government from trying to recoup the money it has already distributed for the exchanges — a total of $1.015 billion to 49 states and a multistate planning project, according to an msnbc.com analysis of state disbursement figures provided by the Department of Health and Human Services
FRC Washington Update: Seven blocks away from the Court, the headquarters of Health and Human Services (HHS) is also buzzing. According to reports, employees there are scrambling to push health care dollars out the door before Thursday’s decision comes down. “Conservatives wanted the White House to stop spending on the health care law until the Supreme Court rules on whether it’s constitutional. But the administration has forged ahead,” Politico points out, “spending at least $2.7 billion since oral arguments in the case that ended on March 28.
Washington Post: Monday’s action in the Supreme Court’s penultimate day of decisions may not have done much to shed light on what the justices have concluded about the Affordable Care Act. But it did lead most to believe that Roberts will be writing the majority opinion in the case.
Volokh Conspiracy: Unless the Supreme Court decides to eliminate the Patient Protection and Affordable Care Act in its entirety, Florida v. Sebelius is not the end of health care reform litigation, but only the beginning. Lawsuits are already pending challenging everything from the contraception mandate to the black lung benefits provisions to the structure of the Independent Payment Advisory Board, as Reuters reported last week. More will follow.
AP: The Supreme Court will issue its last opinions on Thursday, with its decision on President Barack Obama’s health care overhaul expected to come down that day.
NY Times: The Supreme Court on Thursday indicated that it is likely to go into overtime next week, as the nation awaits its decisions in challenges to President Obama’s health care law and a tough Arizona immigration law.
Blog of the Legal Times: In a letter to Chief Justice John Roberts Jr. dated today, the group wrote, “There is a strong interest nationwide in the Court’s opinion and any comments by a member of the Court that may accompany its announcement. Such access would allow the public to be informed of the Court’s ruling in a timely manner.”
Ronald Dworkin: If Obamacare is stricken “our eighteenth- century constitution is not the enduring marvel of statesmanship we suppose but an anachronistic, crippling burden”
Ronald Dworkin at NY Review of Books, Why the Mandate Is Constitutional: The Real Argument, : If the Court does declare the act unconstitutional, it would have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically workable remedy—not because that national remedy would violate anyone’s rights, or limit anyone’s liberty in ways a state government could not, or be otherwise unfair, but for the sole reason that in the Court’s opinion our constitution is a strict and arbitrary document that denies our national legislature the power to enact the only politically possible national program. If that opinion were right, we would have to accept that our eighteenth- century constitution is not the enduring marvel of statesmanship we suppose but an anachronistic, crippling burden we cannot escape, a straitjacket that makes it impossible for us to achieve a just national society.
Google (AP): “I don’t see where that advances anything,” he said of the questions. “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.”
Rasmussen: Just before the highly publicized hearing on the constitutionality of President Obama’s health care law, ratings for the U.S. Supreme Court had fallen to the lowest level ever measured by Rasmussen Reports. Now, following the hearings, approval of the court is way up.
Ken Connor at Townhall: . . . the questions posed by the Supreme Court during last week’s argument on the Affordable Care Act, a.k.a “Obamacare,” indicate that the court is pondering not just the future of health care in this country, but also the role of the federal government in the lives of its citizens.
CNN reports (includes video): The point I was making is that the Supreme Court is the final say on our Constitution and our laws and all of us have to respect it,” he said. “But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress.”
David French at National Review: In my experience, federal judges are more likely to be angered than intimidated by direct attacks from politicians and pressure groups.
Marcia Coyle and Tony Mauro at National Law Journal: Regardless of the outcome of the challenge to the new health care law, three days of arguments last week may have cemented the view of the Roberts Court as a willing and aggressive player in the American political conversation.