Time-Shifting?

From a former student who always has interesting things to say on Internet law topics:

Say, doesn’t this sound like the Betamax case?  Wouldn’t the “time-shifting” argument held by the Supreme Court still hold?

The Sony decision did not create an absolute right to time-shift. The Court recognized time-shifting to be fair use in that case–by a 5-4 decision, not a slam dunk–in part because the recorded programs had originally been broadcast for users to watch them once, and most Betamax users watched their recorded programs once, shifting only the time at which they watched them. (Another reason the Court ruled for Sony is that the plaintiffs represented only a small portion of copyright holders affected by video recording. Other copyright holders–the sports networks, PBS, Mr. Rogers–did not object to their content being recorded by Betamax users.) YouTube is not perfectly analogous to the old broadcast networks, Sony does not fit perfectly.

Reactions to ACA Decision

Four scholarly reactions to last week’s decisions from the WSJ Law Blog:

This was a paradigmatic statesmanlike decision, one that will help preserve the Court’s institutional stature.

Today was a great day for constitutional principle, not such a great day for sound health care policy.

It’s enormously gratifying that the Chief Justice, who once was one of my star students in constitutional law and whose views count while of course mine don’t, saved the day — and perhaps the Court, whose place as a legal institution had begun to fall into dangerous disrepute.

The end product was — not to put too fine a point on it — brilliant. It is brilliant in a way that parallels another landmark decision, Marbury v. Madison.

Roberts Walks a Tightrope

The New York Times outlines yesterday’s Supreme Court’s decision upholding most of the Affordable Care Act by linking brief summaries of the components of the decision to the sections of the decision in which they appear. My previous blog posts do not address the Act’s constitutionality under Congress’s power to tax, in part because–as I said yesterday–I’m not conversant with the tax power precedent. Another significant reason I did not address the tax power arguments is that the Obama administration did not advance them, either when Congress passed the law or during oral arguments in March. Chief Justice Roberts latches onto them “because we have a duty to construe a statute to save it, if fairly possible . . . Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” In other words, Roberts is doing his damndest to construe the law as a valid exercise of Congress’s power.

The decision rejects the pro-ACA arguments resting on the Commerce and Necessary and Proper Clauses. But Roberts reaches into his hat and pulls out the rabbit, opining that the Individual Mandate is not a penalty but a valid exercise of Congress’s power to tax. It’s as close to deus ex machina as I can recall in a Supreme Court decision, legalistic ju-jitsu–because earlier in his opinion Roberts decides the Individual Mandate is not a tax for the purposes of the Anti-Inunction Act, which requires that one must first pay a tax before filing a suit challenging its validity. The Scalia, Kennedy, Thomas, and Alito dissent is having none of it: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Individual Mandate is Constitutional

New York Times 28-Jun-12: “Supreme Court Lets Health Law Largely Stand.”

I was both wrong and right about the Commerce Clause argument against the individual mandate: wrong that the better argument supports its constitutionality, right that the commerce clause argument is a close call. The Court held that the mandate exceeds Congress’s Commerce Clause power and is not valid under the Necessary and Proper Clause.  The Court instead construed the penalty imposed on individuals who do not purchase health insurance to be a valid exercise of Congress’s taxing power. I’ll cheerfully admit I’ve thought little about this argument, mostly because my insight into the Constitution’s taxing provisions is slightly better than my understanding of string theory.

My quick reading of the Court’s syllabus of the opinion showed me that a quick reading of the opinion will not suffice to understand its many components. It’s one of those opinions where I will need to map in a matrix the outcome of each of the issues. That’s not happening this afternoon. The sun is (mostly) out and my individual mandate requires completing my projects and errands.

Waiting for the Court

I’m not sure I’m ready for today’s Supreme Court ruling on the Affordable Care Act–or, more precisely, for the howls and outrage that will arise from whichever side loses the individual mandate argument. I’ve been talking about it with my coffee buddies for the past few years. Most were–are–incredulous that there’s even a question about the ACA’s constitutionality. Of course the federal government can require everyone to buy health insurance! Health insurance is a good thing, like requiring people to wear seat belts, therefore the government can compel us to buy it! (One thing I’ve learned from teaching law for 15 years–most U.S. citizens have the faintest understanding of Federalism.) I believe the better arguments favor upholding it–I think the federal government can use its Commerce Clause powers to require us to buy health insurance because when we don’t buy health insurance we always shift our health care costs to third parties (hospitals, the government, people who do have health insurance), and thus the cumulative effect on interstate commerce of personal decisions not to buy health insurance is substantial–but I also believe there are legitimate, straight-faced arguments one can make against the law. (Not a popular position in the liberal circles I frequent or media I consume.)

Despite what pundits and Supreme Court justices say, decisions like this are not about applying objective rules, about “calling balls and strikes.” Indeed it’s to our national shame that Congress and the press didn’t call Chief Justice Roberts on this fallacious metaphor during his confirmation hearings. The strike zone is not objective. Umpires do not interpret it uniformly. The best baseball players can hope for is that the plate ump applies the strike zone consistently during a game. It is the job of Supreme Court justices to interpret and apply constitutional principles, which requires making policy decisions about the relationship between the government and the governed. That’s not being an activist judge; it’s being a Supreme Court judge. It’s inevitable that a justice’s political views will shape his or her interpretation of the Constitution. The best we can hope for is that a justice’s decisions are governed by consistent interpretation of constitutional principles, by stare decisis and profound respect for the Rule of Law, and by recognition that the Constitution was intended to be a living document (this rules out Justice Thomas.) There is tremendous tension between these three forces–which is why we lawyers say reasonable people can disagree. Unfortunately, when it comes to the national political discourse reasonable people have been hunted to extinction. I’m not eager for the nasty aftermath of the ACA decision, however it comes down.

Commerce Clause Arguments

The media is filled with articles and reports on this week’s Supreme Court arguments on the Affordable Care Act. This WSJournal article (subscription required) efficiently summarizes the arguments and justices’ questions. Definitions of the relevant economic activity reveal a key distinction between the law’s challengers and supporters–the former focus on the market for health insurance, the latter on the market for health care. The two are obviously connected but the law’s opponents argue that one can be in the market for the latter without being in the market for the former. The media consensus is that the law is in trouble–on CNN Jeffrey Toobin called the Supreme Court session “a train wreck for the Obama administration–and that Justice Kennedy is the key.

Supreme Court Oral Arguments

Short of reading the transcript or listening to a recording of last Tuesday’s Supreme Court arguments in Schwarzenegger v. Entertainment Merchants Assn., the First Amendment challenge to California’s video games law, the WSJournal article Justices Split on Violent Games provides a succinct summary of the  justices’ questions and comments.  They range from Scalia’s “What’s next after violence? Drinking? Smoking?” to Breyer’s “what sense is there” to a 13-year-old being able to acquire a game showing “gratuitous torture of children” but not “a picture of a naked woman” to Kagan’s “Mortal Kombat is an iconic game which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing.”

Those interested in the Supreme Court or in pending or decided cases should bookmark the Supreme Court’s Oral Arguments page and Cornell Law School’s research guide to U.S. Supreme Court Oral Arguments.

Definitive Kagan Analysis

It’s Kagan-All-The-Time in legal periodical world.  I’ve been impressed with her since hearing Kagan speak at a few conferences.  She’s a good choice for the Court, and I think she’ll be approved.  She is smart, personable, comfortable in her own skin, and confident.  I think she’s pretty much in the center–she’s attracted flak from both the left and the right, which is a plus.  She had not been an ideologue, another plus.  The most refreshing analysis (from Legal Blog Watch via Bitter Lawyer via the source of most of my legal insights, MLB.com) concerns her batting stance:

Elena Kagan's batting stance

Major League players critique her hand position (“she’s got the Barry Bonds choke-up working, maybe that’s two strikes on her”), balance (“her weight’s distributed evenly”), aggressiveness (“you can’t smile at the pitcher or you’re gonna get hit”), and other attributes as a batter.  It’s amusing, and as useful as much of what one can read about her online.  When Scalia tries to throw one by her, don’t you want to know that she can handle it?

Nod Once for Yes

The Supreme Court Bobblehead collection doubled this week when Justices Souter, Kennedy, and Scalia moved north after a long, pleasant stay in rural Maryland.  The new arrivals join Justices Rehnquist, Stevens, and O’Connor in my office.  Also joining is a mystery Bobblehead rumored to be on the short list to replace Justice Stevens–a selection that would quiet critics of the Court’s lack of species diversity.