Found some old clutter in Troup’s Corner, and polished it off for viewing.
Some major decisions have recently come out of that legal temple on First Street NE. I can think of one in particular that determined the fate of a controversial Federal law. It was a decision that could help define individual liberties for future generations. It was a decision that could shake the core of a civil society.
Now is when we find out whether people read the first paragraph, and supply a canned answer. I am obviously talking about the June 28, 2012 decision to overturn the Stolen Valor Act. The act was drafted in 2005 to make it a crime to lie about military honors. With such focus being placed on veteran unemployment, there is a practical application of this law that goes beyond the mere act of lying.
The decision effectively installs lying as protected speech. Or in less simplistic terms, it draws the line between protected and unprotected speech somewhere between lying on a resume and lying about a fire in a crowded movie theater. The latter instance is often the line that is used in free speech cases to determine if speech infringes upon the greater good.
Courts have ruled that there are forms of speech that are not protected. For instance, broadcasters and regulatory authorities have the right to censor profanity and lewd behavior. Perjury is not protected speech, nor are slander and libel. In all of these instances, the Supreme Court has determined that these types of speech create a needlessly aggrieved party.
By overturning the Stolen Valor Act, the court has determined that lying about military honors does not do enough to create an aggrieved party. As such, a law to restrict such speech is unnecessary. If lying about military honors were deemed illegal, what would prevent acts passed to prohibit other types of lying? For instance, Notre Dame University hired and quickly fired football coach George O’Leary for claiming a degree on his resume that he did not earn.
If the act were left to stand, could future acts make situations like O’Leary’s a criminal offense? What if he were hired to coach Indiana State University, effectively defrauding the citizens of Indiana? Therein lies the rub. The case before the court centered around a local elected official. So if a candidate were to lie about military honors, knowing that voters may grant them weight in their decision making, isn’t there an application where stolen valor can be used to commit a form of fraud? If one were to lose out on a private sector position because of stolen valor, aren’t there any number of aggrieved parties? The court feels that the law did not provide enough of a narrow scope to define the detestable speech and the aggrieved party. Hopefully it can be rewritten to conform to this standard.
Was there something else? Apparently Congress passed something called the Patient Protection and Affordable Care Act in 2010. Apparently it became a pretty big deal. Proponents of the measure claim that the law will extend health coverage to upwards of 30 million Americans who currently lack it. Opponents believe that the law is a potential trojan horse for socialized medicine. Unclear is whether either side has read and interpreted the law’s many provisions.
The Supreme Court eventually provided a tepid endorsement of the law. Proponents are deliriously joyful, while opponents see red. It is important to underscore that the court did not endorse the law as good policy or denounce it as bad policy. It merely provided an opinion on the constitutionality of the law.
Providing the majority opinion, Chief Justice Roberts noted, “The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command.” This declaration is a hat tip to the Attorneys General who argued that the law violated the boundaries of the commerce clause. It was also with this statement that CNN and Fox News declared the individual mandate had been stricken down by the court. Then CNN’s live blog noted that the mandate still had life as a tax when Justice Roberts continued his rendering “The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”
The dissenting opinion was given by Justice Antonin Scalia. Once again, we see that the job of the Supreme Court has become to draw the lines of society when they need to be drawn. Scalia feels that the lines have now been drawn to wide by noting, “Whether federal spending legislation crosses the line from enticement to coercion is often difficult to determine, and courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear. In this case, however, there can be no doubt.”
Scalia’s opinion also calls into question the process of oral arguments. The Solicitor General was battered during these arguments. Justice Ginsburg actually became the key litigator for the Obama administration. Much of the arguments surrounded the notion of the commerce clause; however, the opinion was given in terms of the government’s authority to tax. Scalia finished his opinion with this warning, “Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.”
Both Scalia and Roberts avoided the fiery political rhetoric that couched the issue as “good policy versus bad policy.” Both justices couched their opinions in terms of the limits of the federal government, with Roberts providing a final hat tip to the law’s opponents by saying, “The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express an opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” With the law polling negatively at sixty percent or higher, I don’t think we have seen the last of the PPACA debate.
For his part, the President appeared relieved. He recommended that we move forward, as the courts have now spoken. Sage advice. With that spirit in mind, I trust that the court will no longer be scolded during a State of the Union Address. And I’m also sure that Washington will pick up the phone when Arizona calls.
Aftermath
Much like the Citizens United case, what was meant to serve as the final word has perhaps created even deeper divisions.In the month since the ruling, public support for the law polls at 48 percent – the recent high point of such polling.
Chief Justice Roberts has apparently found peace in Malta. Malta is a tiny island nation in the Mediterranean, far removed from the vitriol that may come from the mouths of Les Kinsolving listeners. (aside: For fun, your columnist dons his tin foil helmet from time to time, but wow….)
Indeed Justice Roberts went in an odd direction. He all but admitted that the meat and potatoes of the law do not agree with the powers that extend from the commerce clause; however, he gave the green light by identifying a tax appearing in the law. It sort of sounds like the opposite of what we learn about the law from criminal cases. Once you identify the reasonable doubt, the whole case falls apart. In this case, Justice Roberts seemed willing to cling to the evidence that kept it intact.
Politically speaking, the Supreme Court may have done Mitt Romney a favor. Sure, this was described as an Obama victory (brief thought: when do we win?). With public support still mixed, there is an opening for Romney to run on a repeal and replace platform. While the President has declared that it is time to move forward (read: never mention the ACA again, please), Romney could outline the parts of the plan that work, and portray himself as a consensus builder.
Not to mention, Romney could use the tax ruling to claim that the President broke a campaign promise. Or are we supposed to believe that money we pay through taxes that aren’t labeled “income taxes” doesn’t count as real money?
Down the avenue, Congress continues to step in it. Nearly three dozen debates have taken place to repeal or defund all or part of the ACA’s provisions. Most recently, five Democrats went to the repeal side AFTER the Supreme Court’s ruling. It was said that this change of heart gives those five some political cover in November. If I were a voter in those person’s districts, I would have less respect for those Congressmen. What you are telling the voters is that you know, in your heart of hearts, you voted for something that was bad policy.
While things heat up before November, the real question might be: we will get to four dozen votes before anyone addresses taxmaggedon? And if so, will there be ten crossovers? A ruling intended to bring finality to an issue seems to have created new and interesting ways for Washington to play Dr. Frankenstein with this monstrosity.