Thursday round-up
on Mar 29, 2012 at 12:28 pm
Yesterday, the Court heard the final set of oral arguments in the challenges to the Affordable Care Act (ACA). In the morning, it considered the severability question – what part, if any, of the Affordable Care Act (ACA) survives if the individual mandate falls – while in the afternoon it heard arguments on the constitutionality of the ACA’s Medicaid expansion. Kali compiled coverage of the arguments yesterday afternoon. In his report on the morning’s severability arguments, Lyle Denniston concludes that the Court “may have convinced itself in the end not to [strike the mandate] because of just how hard it would be to decide what to do after that.” And on Medicaid expansion, Lyle observes that the ACA’s “broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.” Amy also provides a Plain English report on the severability issue for this blog, and Tom compiles all SCOTUSblog posts on the health care arguments. Tejinder Singh of this blog has audio highlights of the severability arguments here, and of the Medicaid expansion arguments here. Additional coverage on the severability question comes from Bloomberg; the New York Times; NPR; the WSJ Law Blog; the Washington Post’s Wonkblog; Forbes; Slate; USA Today; USA Today’s The Oval blog; the ABA Journal; Courthouse News; Sentencing Law and Policy; CNN; ABC News (video); and UPI. Also covering the Medicaid expansion arguments are Bloomberg; the Wall Street Journal; the Washington Post; Reuters; the Los Angeles Times; NPR’s Shots blog; the editorial board of the Chicago Tribune; the editorial board of the Christian Science Monitor; the Blog of Legal Times; Forbes; and USA Today’s The Oval blog.
With oral arguments now over, reporters and commentators began to look back at the big picture. Bloomberg recaps the past three days of arguments with illustrative quotes from each Justice. The Christian Science Monitor and Los Angeles Times both report that the Justices are poised to strike down the entire ACA, while Slate Dahlia Lithwick argues that things could go either way. At the Washington Post’s Wonkblog, Ezra Klein interviews Akhil Amar and Charles Fried on the constitutionality of the individual mandate. Mark Sherman of the Associated Press and Robert Barnes and N.C. Aizenman of the Washington Post report that health care arguments brought out ideological differences amongst the Justices. E.J. Dionne of the Washington Post and the editorial board of the New York Times invoke the specter of judicial activism to contend that any ruling striking portions of the ACA as unconstitutional would be unwise. David A. Fahrenthold and N.C. Aizenman of the Washington Post and Jonathan Cheng of Wall Street Journal surveyed prognosticators on the outcome of the health care challenges. Jared A. Favole of the Wall Street Journal and USA Today’s The Oval blog both report that President Obama’s Administration is confident that the ACA will survive the Court’s scrutiny. Cato@Liberty, David Koppel of the Volokh Conspiracy, and Jack Balkin, Neil Siegel, and Sandy Levinson at Balkinzation, all offer thoughts on a “limiting principle” for congressional power. At the Huffington Post, Mike Sacks reviews the arguments while Caroline Frederickson, Risa E. Kaufman, David Katz, Robert Creamer, Larry Womack, and Hoyt Hilsman offer opinions criticizing on various grounds any potential decision to strike portions of the ACA. An opinion piece at Fox News urges the Court to wait until after the 2012 presidential election to decide the challenges. At the Volokh Conspiracy, Jonathan H. Adler responds to a Dahlia Lithwick essay at Slate criticizing several Justices’ negative stance towards the constitutionality of the mandate, while David Bernstein criticizes Solicitor General Donald Verrilli for referencing the Constitution’s Preamble in closing arguments yesterday. Mike Dorning and Greg Stohr and Seth Stern of Bloomberg, Jess Bravin of the Wall Street Journal, NPR, PBS Newshour (video), the Chicago Tribune, ACSblog, Susan Saulny of the New York Times, and the New Republic also offer thoughts on the arguments and look into the potential impact of the Court’s decision.
The Court also issued opinions in three cases yesterday. In FAA v. Cooper, the Court held in a five-to-three decision (with Justice Kagan recused) that the authorization of suits against the government for “actual damages” in the Privacy Act of 1974 is not sufficiently clear to constitute a waiver of sovereign immunity from suits for mental and emotional distress. Coverage of the decision comes from Bloomberg, Reuters, Los Angeles Times, Forbes, Courthouse News, the ABA Journal, JURIST, and the Associated Press (via the Huffington Post).
In Setser v. United States, by a vote of six to three, the Court held that a federal district court has the discretion to order a federal criminal sentence to run after a state criminal sentence that is anticipated but has not yet been imposed. JURIST has coverage.
In Vartelas v. Holder, the Court held, again by a vote of six to three, that because the Illegal Immigration Reform and Immigrant Responsibility Act burdens lawful activity on the basis of nothing more than past criminal activity, it was retroactive within the meaning of the Court’s precedents. JURIST and Courthouse News have coverage. Tejinder Singh has details on all three of yesterday’s opinions for this blog.
Finally, WJHG 7 (Panama City, Fla.) reports on the Court’s decision to grant cert. Monday in Florida v. Harris, while the Associated Press (via the Seattle Times) covers the Court’s cert. denial in an Idaho death row case.
