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Posts Tagged ‘Commerce Clause’

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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The Supreme Court has had a hard time improving on Chief Justice Marshall’s McCulloch v. Maryland formulation of the doctrinal test for Congress’s power under the Necessary and Proper Clause. At one point in time, the Court even adopted that formulation as its test for the reach of Congress’s power under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, however, the Court tried to do better in its Section 5 jurisprudence. That was a mistake. Boerne‘s congruence and proportionality test is a “flabby test” that is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” as Justice Scalia reiterated in a solo concurrence just last week.

Based on this week’s oral arguments on the constitutionality of the “individual mandate,” at least some of the Justices appear willing to formulate a new doctrinal test for what counts as a “Proper” law under the Necessary and Proper Clause. As they were in Boerne, the Justices are on a search for a limiting principle on Congress’s power. In their attempt to not Garciaize the Commerce Clause and the Necessary and Proper Clause, let us hope that they do not Boerne-ize those powers instead.

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Now that the Fourth Circuit panel that heard oral argument in Virginia v. Sebelius and Liberty University v. Geithner has disposed of the other two appeals heard that same morning, one can use the panel’s actions in those cases to speculate about the authorship of the opinions in the two challenges to the individual mandate. My best guess is that Judge Motz was assigned to author the principal opinion in Liberty University v. Geithner and that Judge Davis was assigned to author the principal opinion in Virginia v. Sebelius. This is all speculative, of course, but there is a long and glorious tradition of speculating about opinion authorship in appellate cases.

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