Dorsey v. United States: So Long, Saving Statute?

Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010.  The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986.  There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime.  However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it.  Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.

Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty.  However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication.  Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent.  By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.

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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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