Constitutional Law – Page 45 – Marquette University Law School Faculty Blog

Victory For ObamaCare!

Post author:Edward A. Fallone
Post published:June 28, 2012
Post category:Business Regulation Constitutional Interpretation Constitutional Law Health Care Judges & Judicial Process Public U.S. Supreme Court

The decision in National Federation of Independent Business v. Sebelius is a victory for the supporters of the Affordable Care Act, and a fairly broad vindication for the constitutionality of the law. Here are my initial thoughts:

This is a big win for the Obama Administration. The only portion of the law struck down is the Medicaid expansion provision, on the grounds that Congress cannot threaten to take away funds previously granted to the States if the States fail to accept new conditions. This strikes me as a fairly reasonable gloss on the case of South Dakota v. Dole and, at the same time, a constitutional interpretation that still allows Congress a fair amount of flexibility to attach conditions to the receipt of new federal dollars.

I am not persuaded by Justice Robert’s argument rejecting Congress’ power under the Commerce Clause. It strikes me as primarily conclusory rather than analytical, and my initial reaction is that it should be considered dicta since Justice Roberts upholds the ACA on other grounds. Of course, I have already made clear that I am inclined to agree with Justice Ginsburg that the Court’s precedent under the Commerce Clause provides ample support for the ACA’s constitutionality, as I argued in previous posts here and here.

Nor am I convinced by Robert’s tax argument. He labors a great deal to make the case that the ACA does not impose a “tax” for purposes of the statutory Ant-Injunction Act but nonetheless imposes a “tax” under Congress’ constitutional taxing authority.

It appears to me that Roberts tried to split the baby in a statesman-like way, by giving victory to Obama but by using reasoning and language designed to placate President Obama’s critics. Am I the only person who read Justice Robert’s opinion and thought of Marbury v. Madison?

Florence v. Board: With Proactive Policing at Issue, Supreme Court Backs Discretion

Post author:Michael M. O'Hear
Post published:June 7, 2012
Post category:Constitutional Law Criminal Law & Process Public U.S. Supreme Court

I’ve been working through my backlog of reading from the academic year, including the Supreme Court’s April decision in Florence v. Board of Chosen Freeholders of County of Burlington. This is the decision in which the Court upheld the use of routine, suspicionless strip searches of individuals arrested and jailed for minor offenses.

It strikes me that part of what was really at issue in the case went unmentioned by both the majority and the dissent. The case is framed on both sides as being about corrections administration, but it is perhaps just as much about policing – how much discretion are we going to give police to detain citizens and impose on them the humiliation, stigma, and danger of incarceration with a general jail population. This discretion seems a powerful tool in support of proactive, crime-preventive policing, but it is also prone to abuse and seems hard to reconcile with ideals like checks and balances and “innocent until proven guilty.”

Writing for the Florence majority, Justice Kennedy presented the case as a conventional prisoner rights case.

Restricting Liberty in the Name of Equality

Post author:Scott C. Idleman
Post published:June 6, 2012
Post category:Civil Rights Constitutional Interpretation Constitutional Law First Amendment Public Religion & Law

Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.