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Sifting through the ACA decision

Okay, I stick to mostly criminal law here, but yesterday's decision in the Affordable Care Act cases is probably one of the most significant in the Court's history.  And not just for the political implications.  Had the Court struck down the health care reform act, it would have dealt Obama a staggering blow -- nothing like having the major legislative initiative of your entire first term tossed out -- but it would have also relegated the issue to the sidelines in the election.  Instead, the Court's decision has left in the electorate's hands what to do about a law which remains largely unpopular.  We'll see how all that plays out over the next four months.

But aside from that, there are some other interesting aspects to the decision, some of which even implicate criminal law.  As we say in the law biz, to-wit:

The majority opinion that wasn't.  Nobody writes a dissent like Antonin Scalia; he's smart, witty, and willing to savage just about anyone who disagrees with him.  On Monday, when the Arizona immigration case came out, he probably crossed the line, injecting in his announced dissent comments about Obama's recent decision not to deport those who'd entered the country illegally as children, something that assuredly was not in the record before the Court.

Scalia wrote the dissent in the ACA case, with Thomas, Alito, and Kennedy joining in.  But it wasn't a Scalia dissent; there's barely a whiff of criticism in the entire thing.  As a matter of fact, a number of commenters suggested that Scalia's opinion was actually originally intended to be the majority opinion, but Roberts bailed at the last minute.

I initially had my doubts about that theory, mainly because I figured that since Roberts would get to assign the writing of the majority opinion, he'd give that job to himself, given the significance of the decision.  (For the same reason that Earl Warren authored the opinion in Brown v. Board of Education.)  But after reading Scalia's opinion, I think there's some merit to the comments.  The key is that his opinion spends a fair amount of time talking about the severability issue.  That was one of the big questions before the Court:  if it struck down the individual mandate, did the rest of the act have to go, too?  Scalia's opinion goes into detail and concludes that it does, but there's little reason for a dissent to even consider that issue, since the mandate's being upheld.  I don't know what might have caused Roberts to switch, but I think it's reasonable to believe that he did.  If so, given the firestorm of criticism his decision has gotten from the right, the promise on Romney's web site that "As president, Mitt will nominate judges in the mold of Chief Justice Roberts..." shows that irony isn't quite dead after all.

Keep the carrot, get rid of the stick.  When the Congress passed the Adam Walsh Act in 2006, making sex offender registration and notification laws more stringent, it promised that any state adopting the act would receive funds from the Federal government.  As readers of this blog know, Ohio was the first to take the Feds up on the offer, only to find that the cupboard was bare.  (Other states took a more cautioned approach, which paid off:  Illinois, for example, decided not to opt in when it found that the costs of implementing the act would be ten times the amount of anticipated funds, even if those funds had ever been appropriated.)

The use of Federal money to entice states to do things in this fashion is hardly unprecedented.  Back in 1984, Congress passed the National Minimum Drinking Age Act, which gave states the Hobbesian choice of raising their drinking age to 21 or losing ten percent of their Federal highway funds.  The states argued that this constituted impermissible coercion, but that argument was rejected by the Supreme Cour three years later in South Dakota v. Dole.

The ACA contained a similar provision.  It substantially expanded Medicaid eligibility, bringing an additional 17 million people into the program by 2021.  The Feds picked up most of the tab for that, but a number of states argued that the increased rolls would bust their budget.  Too bad, said the Feds:  if you don't increase eligibility, you not only don't get the new money, you don't get the money you would've gotten under the old rules, either.

And that was too much for all but two members of the Court.  Roberts' opinion doesn't mean that any coercion is impermissible, and it doesn't draw a line as to how far Congress can go in attempting to induce states to adopt particular laws or requirements.  But combined with the next item, it revives the concept of Federalism and state sovereignty.

The limits of the Commerce Clause.  Rajah Baylor robbed a Little Caesar's store here in Cleveland back in 2008, relieving them of approximately $538.  For whatever reason, he found himself prosecuted under the Hobbs Act, which makes it a Federal crime to "obstruct, delay, or affect commerce or the movement of any article or commodity in commerce, by robbery or extortion."  Baylor's case, and the Hobbs Act, stand as testimony of the reach of the Commerce Clause in criminal cases; Little Caesar's got the stuff it used to make its pizza through interstate commerce, and that was enough of a tie-in to put Baylor in a Federal instead of state prison.  For that matter, it probably didn't matter whether that Little Caesar's got its tomato sauce from a farm in California or one south of Columbus, Ohio.  Back in 2005, in Gonzalez v. Raich, the Court held that the Feds could criminalize the production and use of home-grown marijuana, because of the possibleeffecton interstate commerce:  if you're growing your own weed, that means you're not buying it from someplace else, which might be out of state, so your choice affects the price that is charged for the drug on a national level.

Roberts adopted the position yesterday that the ACA's individual mandate, requiring everyone to purchase health insurance or pay a tax, could be upheld under Congress' taxing powers, but rejected the idea that it could be supported by the Commerce Clause.  Whether he's right about the taxing power or wrong about the Commerce Clause is something about which reasonable individuals might disagree.  In fact, when the cases first worked their way up to the Court, the conventional wisdom among constitutional scholars was that the mandate would be upheld, because the Commerce Clause would even allow the Federal government to require people to engage in commerce.  (Indeed, that provision was upheld, on that basis, by two of the most conservative Federal appellate judges in the country.)

The Court's answer was no, it can't, and that in itself might not have much impact.  Despite hypotheticals about the threat this would pose to liberty, the fact remains that, given the public reaction to the insurance mandate -- it's by far the most unpopular aspect of the law -- it's exceedingly difficult to envision the public acquiescing in Congress' passing laws forcing everyone to buy an electric car or eat broccoli.

But there's a more subtle point here.  "Don't make a Federal case out of it" used to be a way of admonishing someone not to blow something out of proportion, but as Baylor and Carole Ann Bond can tell you, making a Federal case out of it seems the way to go anymore.  Bond, as I discussed here, sprinkled some chemicals on the car door of a woman who'd had an affair with Bond's husband; instead of being charged with assault or harassment under state law, she found herself indicted in Federal court under a statute Congress had passed implementing the United States’ obligations under the 1993 Chemical Weapons Convention.

The Federalization of criminal law has become an increasing problem over the years.  The decisions in the ACA case probably won't change that directly, but the decisions' recognition of the role of states as actual sovereigns in their own right might work to at least stem that tendency, if not reverse it.

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