On June 28, 2012, the last day of the U.S. Supreme Court's
2011 term, saw a surprising and important decision handed down in National
Federation of Independent Business et al. v. Sebelius, Secretary of
Health and Human Services, et al., the challenge to the Affordable
Care Act (the "ACA"). While most of the news media was
focused on the decision in the ACA challenge, the Supreme Court
also issued an opinion in U.S. v. Alvarez on the same day
overturning the Stolen Valor Act of 2005 in a decision likely to
become a key piece of the Court's First Amendment
jurisprudence.
I'm not going to attempt to provide incisive legal commentary
on the ACA opinion - there is plenty of good commentary available
with far more insight than I can muster, and frequent readers know
that "incisive legal commentary" isn't really what I
do. I will go ahead and say that my
predictions on the outcome of the ACA challenge were
wrong. Being wrong in my predictions puts me in good company,
however - the decision surprised most court watchers. In an opinion
authored by Chief Justice John Roberts, the Chief Justice joined
what is commonly understood to be the more liberal members of the
Court in upholding the majority of the ACA. The individual mandate,
a key provision of the ACA which was the primary lightning rod for
conservative criticism, was held constitutional under the federal
government's power to tax but not under the Constitution's
Commerce Clause. Interestingly, in evaluating the applicability of
the Anti-Injunction Act heard in oral arguments, the Court held
that the penalty for not purchasing insurance was not a
"tax" for purposes of the Anti-Injunction Act; curious,
considering the foothold found for the constitutionality of the
individual mandate was held to be that the penalty was a
permissible application of Congress's power to tax. The portion
of the opinion that most surprised me was the holding that the
Medicaid expansion, which required states to abide by the increase
in eligibility under Medicaid or lose all Medicaid funding, was
unconstitutional as excessively coercive. A former
professor of mine at Vanderbilt University Law School must be
quite pleased with this holding - James Blumstein's students
should expect the subject matter to come up on future
Constitutional Law II exams.
The opinion is really worth a read, even if it is a bit long,
mostly because of the intended audience both the opinion and the
dissent are clearly written for. Unlike many Supreme Court
opinions, which focus on obscure and esoteric areas of law, the ACA
opinion is written for consumption by the most novice of court
watchers. The introduction to Chief Justice Robert's opinion
(and the corresponding dissent) cite opinions that first year law
students (and even high school students taking classes on American
Government) would be familiar: Marbury v. Madison, Gibbons v. Ogden and Wickard v. Filburn are all discussed.
Waller's very own
Judge Alberto Gonzales was interviewed on America Live with Megyn Kelly, Morning Joe, and Anderson Cooper 360 regarding the opinion.
Judge Gonzales was involved with vetting John Roberts when he was
appointed to his current position by President Bush. Note to
whoever does CNN's webpage addresses - it is
"Gonzales" with an "s."
I'm a bit disappointed that the ACA ruling took the spotlight
away from the decision in the Alvarez case. The respondent, Xavier
Alvarez, kicked off his first meeting as a member of the Three
Valley Water District in Claremont, California by telling the
assembly that "Back in 1987, I was awarded the Congressional
Medal of Honor." It seems that Mr. Alvarez is quite the
fabulist, and the statement that he had won the Congressional Medal
of Honor, much like many of his other life stories (including that
he had played for the Detroit Red Wings) was a lie. Unfortunately
for Mr. Alvarez, under the Stolen Valor Act of 2005, lying about
earning a Congressional Medal of Honor carries a penalty of not
more than one year in prison.
In holding the Stolen Valor Act unconstitutional, the Court
provides a significant advancement of the Court's First
Amendment jurisprudence. The opinion distinguishes simple lies from
statements that are not protected by the First Amendment, including
fraud, "fighting words," inciting violence, and
defamation. There are a good number of quotes from this opinion
worth remembering; the majority opinion even gives a nod to George
Orwell:
"Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principal. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth."
This is the core of the Alvarez opinion: that allowing the government to punish statements simply for the fact that they are false gives the government the power to determine what is true. It is also an excellent opinion for readers in an era, as mentioned above, in which Supreme Court opinions are too often inaccessible to most readers. Justice William O. Douglas would be proud. I think it is worth noting that the dissent filed in the case was written by Justice Alito, which is in keeping with his more restrictive views on the protections afforded by the First Amendment. Here are two more great quotes from the opinion in parting:
"The remedy for speech that is false is speech that is
true. This is the ordinary course in a free society. The response
to the unreasoned is the rational; to the uninformed, the
enlightened; to the straight-out lie, the simple
truth."
and
"The Nation well knows that one of the costs of the First
Amendment is that it protects the speech we detest as well as the
speech we embrace."
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