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Posts Tagged ‘Casey’

It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause).

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 848 (1992)

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Justice Kennedy’s vote on the constitutionality of the individual mandate is bound to be a disappointment regardless of how he votes.

Two decades ago, it was widely expected that he would vote to overturn Roe v. Wade and return state abortion legislation to rational basis review. And he did vote that way . . . only to later switch and vote another way. If Justice Kennedy follows his Casey pattern, that means he will have voted at conference to hold the individual mandate unconstitutional, only to switch his vote some time during writing. That would be a disappointment to many.

But Justice Kennedy’s Casey vote did not work out quite as he anticipated, as his dissent in Stenberg v. Carhart and his opinion for the Court in in Gonzales v. Carhart bear out. Moreover, Justice Kennedy may still be nursing resentment over his Flipper reputation from October 1991 Term (which brought both Casey and Lee v. Weisman). Perhaps he learned from Casey that he should not flip his vote in cases of that magnitude. And if that was his takeaway from Casey for the individual mandate ruling, then he not only voted at conference to hold the individual mandate unconstitutional, but also did not switch to the other side during writing.

Yet Justice Kennedy’s contemplation of a 5-4 split down the lines of partisan appointments may have brought to mind Bush v. Gore . . . leading to no change at all. For Justice Kennedy simply cannot understand why anyone would question the Court’s leanings and rulings from that case alone. In his view, the Bush v. Gore majority was–obviously–only deciding based on its best understanding of the law. And even if Justice Kennedy had worries about public perception, the unpopularity of the individual mandate (which is much less popular now than Al Gore was then) provides some insulation for the Court.

For all these reasons, it will be most interesting to see if Justice Kennedy thinks that stare decisis means the same thing for Raich as it did for Roe.

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David Rivkin & Lee Casey have an op-ed in the Wall Street Journal that contains some misleading argument about the federal tax Anti-Injunction Act (alternate link here). Here are the key paragraphs:

Finally, the Supreme Court has also agreed to consider one of the highly technical arguments raised in the case, whether the federal Anti-Injunction Act (AIA) prohibits a challenge to the individual mandate before the requirement actually takes effect in 2014. This issue has always been a red herring, arising because the government tried to argue that the individual mandate can be justified under Congress’s power to tax, even if it is insupportable under the power to regulate interstate commerce.

Virtually every lower court to consider ObamaCare—both those that have struck down the law as unconstitutional and those that have upheld it—has agreed that the AIA does not apply here. There is every reason to believe that the Supreme Court will do the same. The AIA was designed to protect federal tax-collection activities, generally requiring that a tax be paid before its legality can be challenged in court. The mandate, of course, is not a tax—but an affirmative regulatory requirement. It is enforced by a penalty. The only connection with the federal tax apparatus is that the penalty will be collected by the Internal Revenue Service from tax refunds otherwise due to violators, and its application here would only postpone challenges to the individual mandate to 2014.

A few problems with these two paragraphs:

(1) The federal tax AIA bar does not arise “because the government tried to argue that the individual mandate can be justified under Congress’s power to tax.” In fact, such an assertion is doubly wrong. First, the issue arises because the statutory text of the ACA requires that the tax penalty be assessed and collected in the same manner as other tax penalties that cannot be challenged pre-enforcement because of the federal tax Anti-Injunction Act. Second, Rivkin & Casey’s opposing counsel disclaim a connection between the constitutional justification of the tax penalty as a tax and the operation of the AIA as a bar. Although one would not know it (and would probably think the opposite) from reading the Rivkin & Casey op-ed, the Supreme Court has held that a challenge to a penalty may be barred by the AIA even if the penalty is not “justified under Congress’s power to tax.”

(2) The split on the AIA in the circuit courts of appeals is 2-1, the same as the split on the unconstitutionality of the individual mandate. If these splits were predictive, then Rivkin & Casey should predict that their challenge will lose on the merits.

(3) The connection between the tax penalty for non-compliance with the insurance requirement and the “federal tax apparatus” is not limited to the means of enforcement. The calculation of the penalty (and therefore the assessment of the amount due on one’s tax return) depends on other elements of an applicable individual’s tax return.

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