Thursday, June 28, 2012
This morning, in a decision awaited with more anticipation and attention than any other I can remember, the Supreme Court upheld the constitutionality of the requirement in the Affordable Care Act that all individuals purchase health insurance. The vote on the individual mandate was 5-4, with Chief Justice Roberts providing the key swing vote.
Although much of the discussion of the individual mandate had focused on Congress’ power under the Commerce Clause, it was Congress’ taxing authority that convinced Justice Roberts of Congress’ power to mandate that individuals purchase insurance. The Act provides that those who fail to comply with the mandate must make a “shared responsibility payment” to the Federal Government, a “penalty” to be “assessed and collected in the same manner” as tax penalties. Writing for the majority Justice Roberts wrote, “[o]ur precedent demonstrates that Congress had the power to impose the [individual mandate] under the taxing power, and [the mandate] need not be read to do more than impose a tax. This is sufficient to sustain it.” He made clear that individuals may choose to pay the tax in lieu of purchasing insurance. In a concurring opinion, Justice Ginsberg, writing on behalf of herself and for Justices Sotormayor, Breyer and Kagen, indicated that she would uphold the mandate under the Commerce Clause.
With the survival of the individual mandate, major provisions of the Act, a number of which found support even among those who opposed the individual mandate, remain in place. Thus, for example, the Act’s requirements that plans may no longer put lifetime limits on essential health benefits or impose limits on pre-existing coverage and must provide for coverage for adult children until age 26 remain in place. (The Act did not completely survive. In a 7-2 decision, the Court struck down the provision of the Act forcing states to expand their Medicaid coverage to the poor. It ruled that the federal government lack the power to terminate Medicaid funds to state who do not wish to expand, but left open to states the ability to opt into an expanded Medicaid program.)
Today’s decision is not likely to end the battle over health care. Foes of the individual mandate will be gearing up in the hope that the November election leads to enough additional Republican votes to cause Congress to repeal the Act. In addition, there has been a lot of infighting at the state level over implementation of the Act, particularly the establishment at the state level of exchanges through which people buying insurance can get coverage. Many states have refrained from moving forward with establishing the exchanges, waiting for today’s decision. It would not be surprising to see the federal government having to step in to manage efforts in cases where the states drag their feet.
And, to move to an issue that we have explored with some frequency on MOJ, the Court’s decision to uphold the Act means that the controversy over the requirement that employers provide contraception coverage for their employees remains a live one. The statement issued by the USCCB in light of this morning's decision is here.
Update: With thanks to Elizabeth Brown, tehe Cathlic Health Association statement is here.
Here is another important decision from the Supreme Court. In US v. Alvarez, the Court (6-3) invalidated the Stolen Valor Act, which makes it a crime to falsely claim that one has received military decorations or medals. I found the dissent from Justice Alito far more persuasive than Justice Kennedy's plurality opinion. From the first page of his dissent, here is a good summary of Justice Alito's view:
"The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families. Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom ofspeech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s per- sonal knowledge. These lies have no value in and of themselves, and proscribing them does not chill anyvaluable speech. By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law." Richard M.
"The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.
Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom ofspeech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s per- sonal knowledge. These lies have no value in and of themselves, and proscribing them does not chill anyvaluable speech.
By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law."
With Roberts as the swing vote, the individual mandate is upheld and with it the bulk of the Affordable Care Act. On a 7-2 decision, the court struck down the provision forcing a state expansion of Medicaid. The decision is here. I'll share some thoughts later.
Wednesday, June 27, 2012
Public Discourse has an essay up by Bishop Philip Tartaglia, of Paisley, Scotland, called "At the Door of the Temple: Religious Freedom and the New Orthodoxy." Check it out. I was, as it happens, at a conference in Oxford a few months ago at which Bishop Tartaglia presented these remarks, and I thought his was a powerful lecture.
A few days ago, at First Things, Joe Knippenberg linked to a piece by Peter Singer, "The Use and Abuse of Religious Freedom." Singer's view, it appears, is that religious freedom is not violated when religious exercise is burdened, disincentivized, discouraged, or discriminated against, but only when something that is religiously mandated is prohibited by the government. A crabbed view, to say the least.
I just received my copy of my friend and colleague Dan Philpott's new book, Just and Unjust Peace. I think this book will be of interest to a broad range of people, including criminal-law scholars engaged with punishment-theory and restorative-justice questions. Here is the O.U.P. blurb:
In the wake of massive injustice, how can justice be achieved and peace restored? Is it possible to find a universal standard that will work for people of diverse and often conflicting religious, cultural, and philosophical backgrounds?
In Just and Unjust Peace, Daniel Philpott offers an innovative and hopeful response to these questions. He challenges the approach to peace-building that dominates the United Nations, western governments, and the human rights community. While he shares their commitments to human rights and democracy, Philpott argues that these values alone cannot redress the wounds caused by war, genocide, and dictatorship. Both justice and the effective restoration of political order call for a more holistic, restorative approach. Philpott answers that call by proposing a form of political reconciliation that is deeply rooted in three religious traditions--Christianity, Islam, and Judaism--as well as the restorative justice movement. These traditions offer the fullest expressions of the core concepts of justice, mercy, and peace. By adapting these ancient concepts to modern constitutional democracy and international norms, Philpott crafts an ethic that has widespread appeal and offers real hope for the restoration of justice in fractured communities. From the roots of these traditions, Philpott develops six practices--building just institutions and relations between states, acknowledgment, reparations, restorative punishment, apology and, most important, forgiveness--which he then applies to real cases, identifying how each practice redresses a unique set of wounds.
Focusing on places as varied as Bosnia, Iraq, South Africa, Germany, Sierra Leone, Timor-Leste, Chile and many others--and drawing upon the actual experience of victims and perpetrators--Just and Unjust Peace offers a fresh approach to the age-old problem of restoring justice in the aftermath of widespread injustice.
I also really liked this bit, from The New Republic: "Just and Unjust Peace is a book of optimism, of hope, of insistently seeing the glass as half full. Humane but not fatuous or sappy, it is the exit ramp off Apocalypse Highway."
Many thanks to Patrick Brennan for his discussing some other lessons from the Lynn trial. To follow on those points, here is the Philadelphia Inquirer's observation of the work of the prosecutors. As an aside, this piece notes that both current District Attorney Seth Williams, who is Catholic, and former District Attorney Lynn Abraham, who is not, faced criticisms of their handling of the investigation based on their religions. Finally, this piece offers another discipline's comment on some lessons learned from the victims of both the Lynn and Sandusky trials.
Can you identify what this picture represents? Perhaps a little more difficult than the last shot.
UPDATE: Well, after a few guesses, and before all of the madness tomorrow, I'll close the bidding and award points to Titus and Bill Collier. The shot is from the Book of Oaths of the judges -- the "Auditores," as one can see from the inscription -- of the sacred Roman Rota. The Rota is the highest Catholic ecclesiastical court (Titus was wise to the judicial language in the inscription). The judges are praying together, each off of their respective bench. Collier hit it right, too -- our own Justices could use a little inspiration too from time to time.
It was not so many years ago that the distinguished philosopher of criminal punishment, Michael Moore, declared that rehabilitation was not really a justification of punishment at all. Part of Moore's criticism of rehabilitation is that it is in some profound sense paternalistic -- the objective being to teach and remake the offender. See, e.g., Placing Blame 85 (1997). That sort of aim, he argued, was not a proper one for the state -- indeed, it wasn't really "punishment" at all.
Yet an interesting feature of the recent direction of Supreme Court 8th Amendment jurisprudence -- including the Court's latest pronouncements in the consolidated Miller v. Alabama decided a couple of days ago -- is that it has to some extent vindicated Moore's descriptive observations about rehabilitation. That is because rehabilitation seems to be gaining some strong traction in the context of juvenile sentencing (e.g. Roper, Graham, Miller). And, of course, a paternalistic approach to punishment sounds most plausible when the offender is a juvenile. How else should the state treat its young than as a correcting, and in some fundamental sense benevolent, father?
Justice Kagan's opinion for the Court in Miller is loaded with this species of paternalistic rehabilitationism, in close association with somewhat retributivist-sounding language. E.g.,