Monday round-up

The weekend’s coverage continues to focus on the challenge to the constitutionality of the Affordable Care Act, as well as the Court’s recent decision in Florence v. Board of Freeholders.

Commentators continued to debate how the Justices should rule on the constitutionality of the Affordable Care Act, as well as the significance of a ruling either way. Writing for the New Republic, Einer Elhauge cites several mandates enacted by the Founding Fathers – including a 1790 law that required ship owners to buy medical insurance for their seamen – to refute the argument that the Founders would have regarded the individual mandate as unconstitutional. At the Atlantic, Lawrence Lessig explains how Justice Scalia’s understanding of the Necessary and Proper Clause may make him inclined to uphold the law, and he concludes that, should the Justices hold the law unconstitutional, their decision will appear politically motivated. Randy Barnett and Ilya Somin respond to Lessig at the Volokh Conspiracy; those responses are followed by Lessig’s surreply to Barnett’s critique in the Atlantic.

The weekend’s coverage also included commentary on the Court’s recent decision in Florence, in which it held that jail strip searches do not require reasonable suspicion when the arrestee is being admitted into the general jail population. Writing for the Huffington Post, John Burns criticizes the decision as “a serious affront to human dignity and to individual privacy,” while UPI reports on a recent survey indicating that fifty-four percent of Americans disagree with the opinion.

Briefly:

• UPI‘s Michael Kirkland looks at Arizona v. United States – in which the Justices will consider whether federal immigration laws preempt four provisions of S.B. 1070 – in the larger context of tensions between the Obama Administration and the state of Arizona. The Justices are scheduled to hear oral arguments in this case next week.
• At Balkinization, Jared Goldstein argues that a President cannot “run against the Court” successfully because “sustained public attention cannot be captured by a fight between the President and the Court. To generate media coverage, a President needs an opponent who will fight back.”
• At the Arizona Republic, Ken Alltucker previews today’s argument in Christopher v. SmithKline Beecham Corp., in which the Court will consider the application of the Fair Labor Standards Act to pharmaceutical sales representatives.  [Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents the petitioners in Christopher, but the author of this post is not involved in the case.]
• The Associated Press reports that the Court has declined to overturn a stay of execution for convicted Oklahoma killer Garry Allen, who argues that he is insane and thus ineligible for the death penalty.
• At Sentencing Law and Policy, Douglas Berman explores one of the questions raised by the facts of Hill v. United States and Dorsey v. United States, two cases on the interpretation of the Fair Sentencing Act of 2010. The Justices will hear arguments in both on Tuesday.