Best of the Blogs: Aftermath of the Supreme Court’s Ruling on the Affordable Care Act

The Supreme Court’s decision upholding the constitutionality of the Affordable Care Act has generated a great deal of “instant analysis” on the web.  This post will survey some of the noteworthy commentary.

I have not read anything that has caused me to re-evaluate my initial reaction to the decision.  I thought that neither Justice Robert’s Commerce Clause analysis nor his Taxing Power analysis was particularly compelling, yet I was struck by the manner in which the Chief Justice managed to construct a 5-4 majority that paralleled Marbury v. Madison insofar as the ruling chastized a sitting President with its rhetoric while simultaneously handing the President a major policy victory.  Upon further reflection, I still believe that future Supreme Court justices will find it quite easy to evade the boundaries that the language of the NFIB v. Sebelius decision purports to place on federal government power.  All it will take is a change in one vote for a future Court to designate the opinion’s Commerce Clause analysis as “dicta,” or else to find the requisite level of coercion lacking the next time that Congress’ deploys its Spending Power in a similar fashion.  While the rhetoric of the opinion promises doctrinal limits on federal power, the actual holdings of the decision fail to deliver on that promise.

John Yoo has come to the same conclusion.  In an op ed piece in the Wall Street Journal he considers the spin that some political conservatives have placed on the Court’s ruling — that it was a victory for the advocates of limited governent — and finds these assertions to be no more than a “hollow hope.”  He rejects the comparison to Marbury v. Madison, and instead compares the opinion of Justice Roberts to the “switch in time” that led the Supreme Court to uphold New Deal Era legislation during the Franklin Roosevelt Administration.  By frustrating the Supreme Court’s best chance since the 1930s to reverse what Yoo views as an anti-originalist acceptance of broad legislative power, Justice Roberts has let Professor Yoo down.

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Victory For ObamaCare!

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?

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Is There a Female Bloc on the U.S. Supreme Court?

For several decades commentators have referred to the United States Supreme Court as being divided into liberal and conservative blocs. Now, suddenly, it looks like there may be male and female blocs as well.

(Since a “bloc” normally has to have at least three members, the possibility of a female bloc came into existence only with the 2010 appointment of Justice Elena Kagan.)

In the Court’s recent decision in Blueford v. Arkansas, the court decided by a vote of 6-3 that the Constitution’s Double Jeopardy Clause did not prevent the State of Arkansas from retrying the petitioner Bluefield on capital murder charges.

Blueford was accused of killing his girlfriend’s young child and was indicted for capital murder. During his trial, the Arkansas jury was instructed to consider also the lesser included offenses of first-degree murder, manslaughter, and negligent homicide. Ultimately, the jury was unable to reach a verdict and it reported to the trial judge that it was deadlocked on the manslaughter charge. The jurors also stated that they had voted unanimously against Blueford’s guilt for the capital murder and first-degree murder charges and did not vote on negligent homicide.

In response, the trial judge declared a mistrial. When the state chose to retry Blueford, his lawyers moved to dismiss the capital and first-degree murder charges, based on double jeopardy considerations. The trial judge denied the motion, and the Arkansas Supreme Court agreed that double jeopardy had not attached.

Having granted cert., the United States Supreme Court affirmed the decision of the Arkansas Supreme Court. By a vote of 6-3, the court held that double jeopardy does not bar retrying Petitioner for capital and first-degree murder since the jury had not made a final resolution of the charges in the initial trial. Chief Justice John Roberts delivered the opinion, joined by male Justices Scalia, Kennedy, Thomas, Breyer, and Alito. Female Justice Sotomayor filed a dissent, joined by Justices Ginsburg and Kagan.

Whether or not gender played a role in the 6-3 split is an interesting question, but has not yet been addressed by commentators. Of course, one case does not establish a pattern, but it will be interesting to see if the pattern in Blueford v. Arkansas repeats itself.

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