Tag: John Roberts

Ted Olson on John Roberts’ Saving Construction of ObamaCare

At a recent legal conference, former Solicitor General (and Cato Institute board member) Ted Olson offered this slightly nerdy take on Chief Justice John Roberts’ saving construction of ObamaCare’s individual mandate:

Roberts’ support for the individual mandate brings to mind the Higgs boson — it can’t be seen, it disappears upon occurrence, and it’s the God particle that controls everything in the universe.

Hat tip: Louise Bennetts.

On ObamaCare’s Discriminatory Subsidies, Brewer Bows When Arizona Should Keep Slugging

Arizona Gov. Jan Brewer (R) recently set aside her vociferous opposition to ObamaCare’s costly Medicaid expansion by announcing she will support implementing that expansion in Arizona. A significant factor in her reversal, she claimed, was that if Arizona did not expand its Medicaid program, then some legal immigrants would receive government subsidies while U.S. citizens would get nothing.

Brewer’s analysis of this “immigration glitch,” and her remedy for it, are faulty. Fortunately, she, Arizona’s legislature, and its attorney general have better options for stopping it.

An odd and unforeseen result of the Supreme Court’s decision upholding ObamaCare is that, in certain circumstances, the law will now subsidize legal immigrants but not citizens. What triggers this inequity is a state’s decision to implement an Exchange – not the decision to opt out of the Medicaid expansion. (Even if a state implements both provisions, legal immigrants would still receive more valuable subsidies than citizens.) The good news is that states can therefore prevent this inequity simply by not establishing an Exchange. If Brewer wants to avoid this “immigration glitch,” there is no need to expand Medicaid. She already blocked it when she refused to establish an Exchange.

The bad news is that the Obama administration is trying to take away the power Congress granted states to block those discriminatory subsidies, and the punitive taxes that accompany them. Contrary to both the statute and congressional intent, the IRS has announced it will impose that witch’s brew in all states, even in the 32 that have refused to establish an Exchange.

Oklahoma attorney general Scott Pruitt has filed suit to stop that stunning power grab. If Brewer is serious about stopping the “immigration glitch,” the way to do it is by filing a lawsuit similar to Oklahoma’s, while adding a complaint that the Obama administration’s illegal subsidies also violate the Equal Protection clause.

I’m Still Not Over the Obamacare Ruling

That’s the title of an op-ed I had in the Daily Caller last week.  Here’s how it begins:

Four months have passed since Chief Justice John Roberts made Obamacare’s individual mandate a tax and thereby let stand one of the two laws most responsible for our sluggish economy (the other being the Dodd-Frank financial “reform”). I was in the courtroom that fateful June day and my emotions quickly cycled through shock, denial, anger, and later depression — why had I dedicated myself to the law when the most important case of my lifetime turned out in this illegitimate way? — before settling into the “bargaining” stage of grieving.

I’m still there. I just cannot get over that blow against not only sound jurisprudence and the rule of law — bad enough — but against the legitimacy of our government altogether. By recognizing that Obamacare was unconstitutional but shying away from striking it down, John Roberts fundamentally shook my faith in our system of justice.

Read the whole thing and also consider the words of Randy Barnett – who more than anyone is responsible for the Obamacare litigation – from the first panel of Cato’s Constitution Day conference in September:

Now we will have an election to decide the ultimate fate of Obamacare. But this election will also be about who gets selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with New Dealers’ mantra of judicial restraint, or should Republican presidents nominate constitutional conservatives who believe that it is not activism for judges to be engaged in enforcing the whole Constitution. All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning. For over two years, our nation was given a great lesson on constitutional law — that the enumerated powers are limits Congress cannot exceed. In June, the electorate was given a different lesson in judicial philosophy: Judicial restraint in enforcing those limits is no virtue. In November and beyond, we will see just how well those lessons were learned.

Obamacare delenda est.

What Is Judicial Activism?

Nearly a year ago, I had an engaging debate at Berkeley Law School regarding “judicial activism.”  Of course, as I clarified, the phrase is really just an epithet hurled by someone to describe a legal ruling with which he disagrees. The whole argument about whether a certain judge is “activist,” “restrained,” or anything else is irrelevant: fidelity to the Constitution should be the sole evaluative criterion—and point of debate—regardless of whether that means striking down a law or upholding it, deferring to the legislature or not.

As I said during this debate (which was against a young law professor named Fred Smith),

The purveyors of conventional punditry all miss the larger point.  The role of the judiciary in terms of constitutional interpretation is to fully interpret and apply the Constitution, period.  So, if that means upholding a law, fine.  If that means striking it down, fine.  Activism is doing something that is not supposed to be the judicial role or not being faithful to the Constitution, which is no small task in part because of the doctrinal mess the Supreme Court has made.  Again, whether a particular statute stands or falls is of no moment.  Fidelity to the founding document should be the touchstone, not a circular debate over the virtues of judicial restraint or—as John Roberts put it at his confirmation hearing—modesty: just calling balls and strikes, just being in a kind of modest judicial role.  Again, where you stand on those sorts of debates depends on where you sit.

I can quote this debate because a transcript has been published in the Federalist Society’s journal, Engage.  The current volume has plenty of other interesting articles, including some authored by various Cato-affiliated or -friendly folks.

Defending the Undefendable

Freedom requires tolerance. That principle will be put to the test today as Americans respond to the Supreme Court decision in Snyder v. Phelps.

As Ilya Shapiro first noted below, Chief Justice John Roberts, writing for the Court, with a thoughtful dissent by Justice Samuel Alito, upheld the right of Rev. Fred Phelps and members of the Westboro Baptist Church to picket at military funerals, carrying signs that read “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.” It is a mark of our liberty that in most cases we defend even the most despicable speech. And in that we stand in stark contrast to much of the world.

In truth, we should also defend most (but not all) despicable actions — short of those that violate the rights of others. But at least we defend speech, even though the line between speech and action is not always clear. But here, the Court set forth the issues carefully and correctly, examining the content, form, and context of the speech as revealed by the whole record — none of which is to say that governments cannot regulate the time, place, and manner of speech under content-neutral provisions. But as Chief Justice Roberts concluded, “As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

By contrast, just today the New York Times reports that Shahbaz Bhatti, the only Christian member of Pakistan’s cabinet, was shot dead as he left his home this morning. His sin? He opposed Pakistan’s blasphemy law, despite threats to his life by Islamist extremists. And only two months ago the governor of Pakistan’s Punjab province, Salman Taseer, was shot and killed by one of his guards for speaking out in defense of a Christian woman sentenced to death under Pakistan’s blasphemy law. Tolerance is all too rare around the world, but it is the foundation of liberty. We’re fortunate to live in a nation whose Founders implanted that principle in our Constitution.

When Should Courts Overturn Precedent?

Cato legal associate Nick Mosvick and I explain that Citizens United overturned one 20-year-old court decision in the name of restoring an older tradition upholding First Amendment rights, in a new article about to be published in the (Chapman University Law School) Nexus Journal of Law & Public Policy

Here’s the abstract:

Stare decisis is an important doctrine with deep roots in the common law. It “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). Indeed, our interest in the law’s stability and predictability, and the reliance interests produced by judicial decisions, sometimes dictate that incorrect legal rulings be maintained — because the social disruptions from correction outweigh the benefits of reaching better decisions.

Still, stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539 U.S. 558, 577 (2003), nor a “mechanical formula of adherence to the latest decision,” Helvering v. Hallock, 309 U.S. 106, 119 (1940). Instead it is a prudential policy, one in which courts have to decide, based on factors such as the correctness, antiquity, and workability of the legal regime a precedent created, whether to overturn their earlier rulings. As Chief Justice Roberts put it in his Citizens United concurrence, “abrogating the errant precedent, rather than reaffirming or extending it, might better preserve the law’s coherence and curtail the precedent’s disruptive effects.” 130 S. Ct. 876, 921 (2010) (Roberts, C.J., concurring).

And so the Court in Citizens United found that both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. FEC, 540 U.S. 93 (2003), that relied on it were not worthy of preservation. They created an arbitrary and increasingly irrational campaign finance system that was an aberration of restrictions in a sea of protections for political speech.

Moreover, then-Solicitor General Elena Kagan abandoned Austin’s speech-equality rationale during oral argument, undercutting any possible reliance interests. Only by overturning precedent could the Court contribute to the stable and orderly development of the law. This article will explain the role stare decisis played in Citizens United and build on the Chief Justice’s concurrence to describe the current state of the doctrine.

Thanks to Larry Solum for featuring us on his Legal Theory Blog.