Thursday, June 28, 2012


The Supreme Court has upheld the Affordable Care Act (affectionately known as Obamacare) in a 5-4 ruling. Although many observers expected Justice Kennedy to provide the swing vote, Justice Roberts joined the liberals to uphold the statute.

In many ways, the opinion is rather mundane. The Court held that the individual mandate is a tax on uninsured people. Although the Obama administration refused to call the mandate a tax while the legislation was pending in Congress, it has defended the ACA on those grounds in litigation. The taxation argument is probably the most sound from a constitutional perspective. But with respect to politics, taxation is a dirty word.

Justice Roberts Saved the Law, But He Is Still A Conservative

Although many people will undoubtedly praise Justice Roberts for saving the integrity of the Court, his opinion definitely leaves a conservative and partisan mark. For example, Justice Roberts unnecessarily reached the question of whether the Commerce Clause allows Congress to penalize uninsured people. Because a majority of the Court found that the the penalty is a valid tax, the Court did not have to reach the Commerce Clause issue. In fact, longstanding judicial principles frown upon the unnecessary discussion of constitutional issues.

Justice Roberts, however, goes deeply into the Commerce Clause question, and his logic embraces much of the conservative discourse surrounding the penalty. Justice Roberts buys into an "action"/"inaction" distinction, arguing that Congress cannot regulate economic inactivity. He also accepts very specious arguments likening the penalty to a mandate to purchase broccoli for the sake of national health. Justice Ginsburg provides a very impressive response to these arguments in a separate opinion, joined by Breyer, Kagan and Sotomayor. [Note: I have also addressed these issues in several essays. In each essay, I defended the law as either a valid tax or a permissible exercise of the Commerce Power. See here, here, and here ]

Justice Roberts also considers whether the penalty is justified by the Necessary and Proper Clause. He concludes that it is not. His logic, however, is rather strained. Roberts concludes that the provision might be "necessary" but that it is not a "proper" exercise of federal power. This is a novel take on the Necessary and Proper Clause. Historically, the Court has interpreted this clause as giving Congress a great deal of flexibility to exercise is enumerated powers. Not only does Congress have the authority to exercise explicit powers delegated to it by the Constitution; it also has the power to do all things that are "necessary and proper" to exercise these explicit powers. In other words, the clause gives Congress implied powers.

In United States v. Comstock, decided just two years ago, the Court issued a quite expansive ruling involving the Necessary and Proper Clause, when it held that Congress could involuntary commit child predators who have completed their federal sentences. The Court ruled that the involuntary commitment provision was a necessary and proper way of enforcing several federal laws related to criminal punishment. The Court, as the dissent observed, failed to link the involuntary commitment provision to any actual explicit power delegated to Congress by the Constitution and criticized the majority for its novel and far-reaching approach. Roberts voted with the majority. Given this precedent, Roberts's discussion of the Necessary and Proper Clause in today's ruling seems heavily flawed.

Ultimately, it is unclear whether the discussion of the Commerce Clause and the Necessary and Proper Clause are even a part of the decision or simply dicta. The caption of the ruling describes these sections as simply "an opinion" rather than "the opinion of the Court"(italics added), which matters from a legal perspective.  Also, the dissenters did not explicitly "join" this part of the ruling. On the other hand, Justice Scalia refers to Ginsburg and the other three liberals as "dissenters" on the Commerce Clause question. It will be interesting to see whether this part of the opinion is treated as "good law" going forward. [Note: The Volkh Conspiracy believes this confusion might indicate that Roberts changed his mind at the last minute. In other words, the liberals were actually the dissenters until they pulled Roberts to their side.]

The Dissent

Justices Scalia, Kennedy, Thomas, and Alito wrote a rare "joint" dissenting opinion. When justices write joint opinions, they are tying to make a very strong statement. Despite the rare format of the opinion, the dissent really does not mark new ground. Instead, the opinion simply argues against the Commerce Clause argument, the taxation argument, and continually expresses the view that Congress now has unbridled power to regulate individuals. One aspect of the dissent, however, requires discussion.

Justice Scalia: Pure Politics

Before today's ruling, Justice Scalia authored a concurring opinion in Gonzales v. Raich. In that case, the Court held that the Commerce Clause allowed Congress to regulate intrastate, homegrown marijuana. Justice Scalia wrote separately and described the Commerce Clause in very expansive terms. According to Justice Scalia, Congress could regulate medical marijuana users because the federal prohibition of marijuana possession was just one small part of a broader regulation of commerce (the Controlled Substances Act) and that it was rationally related to the goals of the broader regulation. He also argued that so long as such a rational basis exists, the regulation need not target economic activity at all.

Today, however, Scalia retreats from this view, joining the other dissenters who embrace the action/inaction distinction. I believe that history will not view this argument kindly. Justice Scalia has always been partisan and rightwing in his rulings -- particularly on issues such as race, gender and sexual orientation. Many Court observers, however, still viewed him (prior to today's ruling) as an intellectual. Recently, he has lost some of his goodwill. Several commentators have recently argued that he has traded his intellectual hat for a more politicized rhetoric. Although I believe these commentators are a bit behind the game in their discovery that Justice Scalia is a political partisan, I suspect that after today's ruling, many others will view him rightfully as an ideologue.

Justice Kennedy: Not A Surprise

Many observers believed that Justice Kennedy would provide the swing vote to save the statute. But Justice Roberts filled that role, and Kennedy joined the conservatives.

Although Justice Kennedy's decision to join the conservative dissenters will probably surprise many political commentators, it should not shock close Court observers. According to empirical research, when Justice Kennedy acts as a tie-breaker, he usually joins the conservatives. Despite his reputation as a moderate, Justice Kennedy is fairly conservative. This is especially true on issues of racial justice and abortion.

Today, Justice Kennedy has again sided with the conservatives. Justice Roberts, however, played the spoiler. Undoubtedly, many folks will argue that Chief Justice Roberts is concerned with the Court's integrity. They believe that if the Court had invalidated the ACA, the public would have reacted negatively to the decision, thus eroding the Court's legitimacy. This argument seems logical. It could explain why Justice Roberts voted with the liberals, but still carefully placed many rightwing arguments in his ruling. The public will only notice the outcome. Policymakers and lawyers will notice the details.

Justice Thomas

Justice Thomas also wrote a brief dissent. But he has merely recycled an argument that he has made before. Justice Thomas has the most conservative views about the Commerce Clause than any justice in the history of the Supreme Court.

All justices on the Court, including Thomas, believe that Congress has the power to regulate commercial transactions or persons or things that are "in." Thomas, however, rejects the view -- though shared by liberals and conservatives today and in the past -- that Congress also has the power to regulate activity that "affects" interstate commerce. Justice Thomas does not believe that the affecting-commerce rationale is legitimate. He took two simple pages to reiterate that belief in today's ruling. No other justice joined -- or has ever joined -- him on this point.


Now, political commentators will slice and dice the implications of the ruling. I suspect that they will only give the legal nuances light attention, if any at all.

In the lead-up today's ruling, Mitt Romney has taken many swipes at President Obama regarding the case. Romney said that if the Court invalidates the statute, then Obama's entire first term will have been "wasted." He also said that advocating for the law was a "moral failure" by Obama. These comments mask the fact that as governor of Massachusetts, Romney presided over almost identical legislative reforms in the state.

It will be interesting to see how Romney responds to today's ruling. The ruling is undoubtedly a huge blow to Republican rhetoric regarding the lawlessness of the Obama administration.

Meanwhile, President Obama is probably breathing more easily and preparing to respond to today's developments. Stay tuned: more analysis to follow!

Note: This article was edited to reflect that the dissent was written jointly, not by Justice Scalia alone.

Thursday, June 7, 2012

Virtually Unreported: Democrats Gain Control of Wisconsin Senate

While the media has obsessed over Wisconsin Governor Scott Walker's successful victory in Tuesday's recall election, only a few sources have reported that the Democrats gained control of the Wisconsin senate. The Washington Times, a very conservative newspaper, was among the first media to cover this story (L.A. Times also now covering it).

Although Walker survived the recall effort, Democrat John Lehman defeated incumbent Republican Senator Van Wanggaard. The successful recall of Wanggard gives Democrats a slim majority in the state senate.

This was the third successful recall effort by Wisconsin Democrats over incumbent Republicans since 2010. Three Republicans, however, retained their seats on Tuesday.

The Media's "Interesting" Coverage of the Wisconsin Recall Election (Updated)

Some media have offered rather interesting coverage of the recent Wisconsin gubernatorial recall election. Every poll conducted ahead of the election showed that Governor Scott Walker would comfortably defeat his opponent Tommy Barrett, the mayor of Milwaukee. But once the polls closed, the media immediately announced that the race was too close to call. This surprising news drew in many viewers who wanted to see how this unexpected drama would unfold. But there really was no drama at all.

Faulty Exit Poll Reporting

The media failed to disclose that it initially reported a virtual tie based on preliminary exit poll data that did not take into account results from all precincts. Furthermore, the firm that conducted the exit polls did not sample absentee voters, who favored Walker.

Later that night the media updated the information it provided the public and then very quickly called the race for Walker. This move left many folks confused. It also probably aroused the suspicions of individuals who distrust everything related to the media or to opinion polls.

The Manufactured Link Between Walker, Obama, and Romney

The next line of reporting turned to November. Although President Obama remained completely silent about this election (except for a last-minute tweet endorsing Barrett), many pundits argued that the outcome signaled that Mitt Romney has a chance to win this traditionally blue state.  These pundits, however, overlook many factors.

First, the exit polls show that voters favored Obama over Romney 51-44%.  Furthermore, 18% of persons who voted for Walker said they would vote for Obama.

In addition, the exit polls also reveal that many voters simply oppose recall elections. 60% of voters said that recall elections should only occur when the incumbent has engaged in "official misconduct."  Walker overwhelmingly won this group.

Despite the effort by some commentators to portray Wisconsin as "in play" for Republicans, the results of the recall election are essentially the same as those in the last two rounds of state elections. The Democrat won groups like women and union members; the Republican won whites and conservatives. The National Journal has an excellent analysis of the election returns.

Finally, it is not odd for voters in a state to elect a governor of one party, but favor a presidential candidate from another party. Indeed, Walker won in 2010 despite Wisconsin voters favoring Obama over Senator John McCain.  Similarly, Walker survived the recall election, despite voters indicating that they would support Obama in November. According to Nate Silver, in the last 10 presidential elections, candidates have actually performed better in states with governors who are members of the opposing political party.

Virtually Unreported: Democrats Gain Control of Wisconsin Senate

Finally, while the media has obsessed over Walker's victory, only few sources have reported that the Democrats regained control of the Wisconsin senate Tuesday night. The Washington Times, a very conservative newspaper, was among the first (and few) media to cover this story (L.A. Times also now covering it).

Although Walker survived the recall attempt, Democrat John Lehman defeated incumbent Republican Senator Van Wanggaard. The successful recall of Wanggard gives the Democrats a slim majority in the state senate. This was the third successful recall effort by Wisconsin Democrats over incumbent Republicans since 2010. Three Republicans, however, retained their seats on Tuesday.

Update: Professor Michael P. McDonald, a Government and Politics scholar at George Mason University, cogently explains why the recall election has no bearing on November. 

Friday, June 1, 2012

BREAKING NEWS IN TRAYVON MARTIN STORY: Court Has Revoked George Zimmerman's Bond (UPDATED)

In a very dramatic development, a Florida court just has just revoked George Zimmerman's bond. The development took place during a hearing that focused primarily on media requests for evidence in the case. Both the state and the defense want certain evidence sealed from public disclosure.

The prosecution, however, also presented a motion to revoke Zimmerman's bond. Jeff Weiner, an Orlando Sentinel reporter, provided step-by-step developments from the hearing on his Twitter feed. Apparently, the state argued that Zimmerman and his wife deceived the court about his lack of money by failing to disclose the donations he received through a PayPal account. Furthermore, the prosecution argued that Zimmerman called his wife, who testified on his behalf during the initial bond hearing, and told her not to mention the money to the judge.

After hearing the state's evidence, the judge revoked the bond. Unless the judge issues a new bond, Zimmerman will have to report to jail until there until the completion of the trial.

Although the trial has not begun, this development could ultimately hurt Zimmerman's defense. If he chooses to testify - and it seems that he will, because he needs to explain his self-defense position - the prosecutor can undermine his testimony by raising false or misleading statements he offered during the bail hearing.

The prosecution also argued that Zimmerman turned over a passport to the state that he had previously reported as lost or stolen. He retains his valid passport. Although it is unclear whether this information influenced the judge's decision to revoke the bond, it too could undermine Zimmerman's credibility at trial. All in all -- this was a bad day for Zimmerman's defense.

UPDATE: The judge ordered Zimmerman to report to jail within 48 hours.
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