Dorf on Law

By Mike Dorf The joint dissent in the ACA case begins by framing the discussion around a distinction between difficult questions--the particular ones posed by the facts and arguments--and an easy question: Whether there are any judicially enforceable limits on Congress's affirmative powers.  As to the latter, the joint dissent states:  " Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs." That's fair enough, but nowhere does the joint dissent directly address a subsidiary question: Are the courts the proper institution to enforce the limits on the scope of Congress's enumerated powers?  Well, one might say, that's because the Court has long enforced such limits.  As the joint dissent says, "innumberable cases" affirm the principle of...

-- Posted by Neil H. Buchanan In yesterday's post , I went on at some length about the hyperventilated cries about the supposed threat to freedom and liberty that have been heard in response to Mayor Bloomberg's proposed size limitations on soda drinks. I argued that the proposal is simply an imperfect, but useful, policy idea that does not differ in kind from any run-of-the-mill policies that any government entity might enact. The proposed policy is, in short, nothing like the caricature of government excess that the soda companies and talk-show hosts have tried to draw. There are at least three potentially legitimate arguments that one can raise in response to a proposal like the mayor's soda size restrictions. I will summarize them here, and I will then explain how those arguments all amount to reminders that we need to have a healthy and robust policy debate, as well as a truly democratic lawmaking process. This is why the energy being wasted attacking the myth...

-- Posted by Neil H. Buchanan In my latest Verdict column , I discuss the controversy over New York City Mayor Michael Bloomberg's proposed regulation of the size of soda drinks that can be sold in the city. I argue that the proposal is hardly perfect, but that it is overall a good idea. I also argue that the breathless screams of "nanny state" and all the usual "What's he gonna take away from me next?" claims -- reactions that are, of course, being stoked with big-money campaigns from the soda companies -- are based on absurd assertions about what counts as liberty and the loss thereof. The underlying problem here is a severe public health crisis, which affects children as well as adults. As usual, however, given the current political environment, claims of slippery slopes and losses of freedom are being used as cynical ploys to defeat every effort to fight that public health problem. As it happens, I am in New York right now, attending a tax polic...

In my Verdict column for this week , I discuss Chief Justice Roberts's apparent change of heart on the constitutionality of the Affordable Care Act (ACA) individual mandate.  Some have suggested that the Chief Justice changed his vote in response to worries about public disillusionment if he and the four other Republican appointees on the Court invalidated the individual mandate.  In the column, I assume arguendo that Chief Justice Roberts did take public opinion into account in his decision, and I analyze whether doing so  would necessarily have been improper. In this post, I want to focus on the behavior of the other four Republican appointees in response to the Chief Justice's ultimate decision.  As we can observe in the four Justices' opinions, the four other Republican appointees on the Court gave Chief Justice Roberts the silent treatment -- they failed to join any part of his opinion, even portions that adopted their own view that, for example, the Comm...

By Mike Dorf A little over a week ago in this space, Professor Buchanan recounted  his own personal encounter with the stretched-too-thin news media that must assign reporters to cover complex stories far beyond their regular beat or expertise.  Reading the news of the discovery of what appears to be the Higgs boson last week, I thought, "well, at least a generalist reporter has a chance  of understanding a complex law story." The NY Times article was among the better ones I read, but it was pretty clearly written by someone who almost certainly does not understand the math that gave rise to the prediction of the Higgs boson.  Here's the closest the story comes to explaining the theory that predicted the Higgs: According to the Standard Model, which has ruled physics for 40 years, the Higgs boson is the only visible and particular manifestation of an invisible force field, a cosmic molasses that permeates space and imbues elementary particles that would otherw...

By Mike Dorf Back in February, the Northwestern University Law Review hosted a discussion with William & Mary Law Professor Tim Zick and me on the topic, "Free Speech and the Public Square After Occupy Wall Street."  Because of recording glitches, the audio file was not posted but we were able to put together a transcript, which has now been posted here .  We discuss a number of topics, especially the following question: To what extent, if any, does the First Amendment, entitle protesters access to private property over the objections of the owners of that private property?  The answer, on which Professor Zick and I both agree, is: very little. That's as a descriptive matter.  Both of us would like to see more robust protection for speech, even on private property, at least when the speech is consistent with the purposes to which the private property has been put to use.  In other words, we prefer the approach of some states, which interpret their state...

-- Posted by Neil H. Buchanan In this past Tuesday's post , I promised to provide a link to the story on the PBS NewsHour in which I was interviewed. The 7 minute, 8 second video is now available here . My 24 seconds of fame begin at the 4:43 mark. One hour of interviewing, boiled down to one quote. That's show biz! Interestingly, within a few minutes of the segment's airing on PBS this past Thursday, I received an angry email. In the segment, I had said that Republican governors who tried to justify refusing the Medicaid expansion by pointing to their states' current budget crunches were scare-mongering, because the current (Great Recession-induced) budget crunches should not be used to justify refusing to expand Medicaid years in the future, when states will have had a chance to recover from their current, temporary crises. The email that I received had the Subject line "Neil Buchanan's threats against uninsured," and read as follows: "Your thr...

-- Posted by Neil H. Buchanan   Every 4th of July, we see another round of tax posturing from the anti-government political forces in the United States. Other than April 15, July 4 is the day of the year when we can be sure that someone will claim that America's greatness is all about low taxes, suggesting (or, in many cases, simply asserting outright) that our founding fathers were early anti-tax ideologues. Links to two good examples were posted on the (invaluable and irreplaceable) TaxProf blog the other day ( here ). One op-ed in the Wall Street Journal (where else?) talked about how great life was for the middle class in the colonies in 1776, with wonderfully low taxes. And it is surely true that taxes are higher now than they were in 1776. Of course, living standards are higher, life expectancy is longer, health care is better (but still much worse, for the average citizen, than in any other advanced country), the transportation system is (to put it mildly) more advanced,...

-- Posted by Neil H. Buchanan Note to readers: There is a good chance that I will appear in a segment on the PBS NewsHour later this week, discussing Medicaid. If that happens, I will provide a link on this blog to the segment. In the meantime, I will offer a few thoughts here on the Medicaid issue, followed by a few reactions to my interactions with the NewsHour 's journalists. The only part of the Affordable Care Act that was struck down in last week's highly anticipated Supreme Court case was that law's attempt to have states make an all-or-nothing choice about participating in the Medicaid program: either agree to expand the Medicaid program to cover nearly everyone who is poor and near-poor, or lose all federal Medicaid funds for a state's existing Medicaid program. The cost-benefit calculation by a state would -- if Congress's system had been approved -- be rather simple. The expansion would have been paid for in its entirety by the federal government for ...

By Mike Dorf With so much attention being paid to the Supreme Court's Affordable Care Act decision last week, it was easy to overlook another ruling--that the Stolen Valor Act violates the First Amendment. In United States v. Alvarez , the Court invalidated an act of Congress that made it a crime to falsely claim that one is a decorated war hero. (The particular case involved a knowingly false claim that that speaker had been awarded the Congressional Medal of Honor.) To my mind, the plurality opinion (authored by Justice Kennedy and joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor) gets it just about right: There is no pre-existing category of unprotected speech comprising false statements of military valor; United States v. Stevens sets an extraordinarily high threshold for the creation of new categories of unprotected speech; there is no way to squeeze the statute into any of the existing categories of unprotected false speech; therefore the law m...