Big Thursday Announcements

United States v. Alvarez — Ninth Circuit affirmed, the Stolen Valor Act is unconstitutional. Breakdown is Concurrence plurality by Kennedy, joined by Roberts, Ginsburg. Breyer and Kagan suggest that statute could be re-written to comply with First Amendment, meaning someone in Congress will be going back to the drawing board to pull these two closer to the dissent. Dissent by Alito, joined by Scalia and Thomas.

Health Care Cases — I’m vindicated, as the individual mandate is affirmed as a valid exercise of Congress’ taxing authority, as I thought:

…Congress ha[s] the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it. National Federation of Independent Business v. Sebelius (pdf).

I’m still ambivalent about whether I like that, but that’s the result I thought was right Constitutiuonally. It looks at first blush as though the PPACA is upheld almost completely. Although all eyes were on Kennedy, the decisive vote saving Obamacare came from Chief Justice Roberts; Kennedy voted with the dissent.

The only provisio to the general validity of PPACA is that the government’s ability and discretion to cut off state medicaid funds is to be interpreted as narrowly as possible, meaning that individual states can effectively opt out of the new coverage expansions mandated by PPACA. So extra medicaid funds are carrots, but not sticks. Since the law was generally upheld, the severability questions are moot. And interestingly, it appears that there are five votes for the idea that the mandate does exceed the Commerce power, but this is dicta, since the mandate is a valid exercise of the taxing power. I’ll have to muse on that further. Overall, a big win for the Administration, which had been bracing for a harder hit than this.

Sorry, not much time for deeper analysis by me this morning. But consider this the place for further discussion. SCOTUS opinion links will likely be overloaded for a considerable amount of time this morning, but do bear in mind that there’s no substitute for reading the actual opinions. And it’s also clear that on both of today’s big opinions Chief Justice Roberts forged his own intellectual path, different from any of his colleagues’. If nothing else, let this be a lesson that counting noses on the Court is never an exact science.

I’ve got to close my main editing and get to court myself within an hour — when the Health Care Cases opinions are published on the SCOTUS web page, would someone please edit this post to include a link? I’d prefer the link to be on the italicized intro to the section glossing the opinion. Thanks in advance. Enjoy your morning discussion about the Court!