This story on NPR is why I teach Law and Theology (occasionally). Our ideas and beliefs, whether implicit or explicit, about the nature of God's judgement and grace impact our ideas about human behavior and markets, and therefore about law.

Professor Huhn will present a program today at 4:00 at Ohio Northern University Pettit School of Law on Same Sex-Marriage and Reality-Based Legal Analysis. The program will summarize the present status of same-sex marriage laws and litigation in the United States, and describe this movement within the larger intellectual and jurisprudential context of Legal Realism and Pragmatism.

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality."

They are mistaken. They view change itself as threatening. They forget that society often changes for the better – that human progress is possible – and that if given the opportunity to pursue their hopes and dreams people can often make this a better world.

The habit of social conservatives to think that they are defending "morality" is evident in the hysteria that arose over the subject of same-sex marriage. According to some conservative leaders, Satan is walking the land because some people of the same gender love each so much they are willing to promise to be faithful to each other and to share everything they have. What blindness! Committed gay and lesbian couples actually contribute to the strength of our families, our communities, and our society. Anyone can see that! So why all the uproar over what should be a relatively peaceful transition to a new level of acceptance?

Opposition to same-sex marriage is simply stated and easy to understand. Same-sex marriage, says its opponents, "threatens the institution of marriage." Some opponents even claim that it is not possible to speak of "same-sex marriage" – that the phrase itself is a contradiction in terms, a physical and moral impossibility.

The opposition to same-sex marriage is not grounded in logic or reality. It is based simply on tradition. Cultural and religious traditions condemn loving relationships between persons of the same gender, so according to social conservatives the practice of same-sex marriage is "immoral."

Those who approve of same-sex marriage and other changes to society such as the responsible use of birth control or the liberation of women from gender-based roles do not consider themselves to be fostering "immorality." They do not perceive themselves to be on the side of Satan or contradicting basic norms of what is good and right. They simply have a different way of telling right from wrong.

For example, liberals believe that whatever our cultural and religious traditions have been, people should not be treated differently unless they really are different. In accordance with this principle our society eventually came to the realization that racial discrimination is wrong. We learned that gender discrimination is wrong. And now we are figuring out that discrimination on the basis of sexual orientation is wrong. We now know – and social science studies prove – that gay and lesbian couples love each other just as much and are just as good at raising children as heterosexual couples. There is no earthly reason to treat same-sex couples differently – and therefore it is wrong to treat them differently.

This same dynamic is at work on the Supreme Court of the United States. Some justices are beholden to "tradition" in their interpretation of the Constitution. They maintain that if a group of persons has been historically discriminated against, that alone is reason enough for the law to continue to treat them differently. Other justices define equality more broadly and more realistically. They adhere to the principle that "persons who are similarly situated must be treated alike," and that principle has been repeatedly invoked to protect groups such as blacks, women, and the disabled from laws that enforced and reinforced traditional stereotypes.

If you, dear reader, are a social conservative, I urge you to pause the next time you are tempted to condemn me or another liberal for fostering "immorality." Please consider the possibility that I may see myself in a different light, that I may have a different way of telling right from wrong, and that what you regard as "immoral" I regard simply as a step forward.

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service – or the police generally - carte blanche to arrest protesters for pretextual reasons.

The Supreme Court heard oral argument in Reichle v. Howards on March 21. The facts of the case are set forth in this earlier post. Essentially, Mr. Howards made some rude remarks about the Iraq War to Vice-President Dick Cheney in a public mall and touched him or pushed him on the shoulder. Later when confronted by the Secret Service Howards lied and denied that he had touched Mr. Cheney. Howards was promptly arrested. Howards sued the agents on the theory that they had arrested him not because they had probable cause (which they clearly did) but rather because they disagreed with what he had said to the Vice-President. The Tenth Circuit Court of Appeals ruled that Howards had the right to bring this lawsuit.

On the one hand, this seems like an easy case. The Secret Service has an important and difficult job to do. They have to protect our nation's leaders and we don't want them worrying about being sued by every protester who is properly arrested for harassment. On the other hand, do we really want to give the police immunity when they arrest someone for trespassing, littering, jaywalking, or driving with a broken taillight just because they don't like what the person has to say?

What makes this case more difficult is the fact that we don't allow the police or even the Secret Service to arrest people because of their race. The courts are not about to graft an exception onto the Equal Protection Clause for law enforcement officers even when they have responsibility for protecting the President of the United States. So how can we and why should we create such an exception to the First Amendment?

My impression from oral argument is that the justices are inclined to reverse the Tenth Circuit and rule in favor of the Secret Service agents by dismissing the lawsuit. A clue as to how the Court might do this was apparent from a question that Justice Stephen Breyer asked Sean Gallagher, the attorney representing the Secret Service agents:

And the — the question I wanted to ask you there is, you make a very strong case where the President and Vice President are involved, the need to protect them, but the rule that you there adopt is a rule that will apply to every police officer, anyone who arrests anyone anywhere in the country, and no matter how clear it is that the motive was retaliation against a point of view, that individual will be protected from a Bivens action.
So, it sounds as if your first claim — the remedy sweeps well beyond the need that you sketch. And so, I'd like your response to that. (p. 6)

In other words, the Court might adopt a rule granting immunity from First Amendment retaliation claims only to those law enforcement officers who are performing protective services. Furthermore, that immunity would apply only in situations where the police otherwise had probable cause to arrest the protester. I believe that this is how the Court is likely to rule.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess the political branches in the determination of national economic policy.

I promised that today I would explain why the courts lack that power. There are two reasons. First, the courts are not institutionally equipped to undertake the complex analysis necessary to the establishment of economic policy. Second, the courts are not democratically authorized to balance and compromise the economic interests of different segments of our society.

Both of these points were made in Part III of the amicus brief that I submitted to the Supreme Court on behalf of a committee of professors in the health care case. For the second point regarding the compromise among economic interests we are indebted to a member of the committee, Professor David S. Cohen of the Earle Mack School of Law, Drexel University. Part III of the brief is reproduced below:

III. ECONOMIC ANALYSIS IS SUITED TO THE LEGISLATIVE DUTY TO DEVELOP PUBLIC POLICY BUT IS NOT COMPATIBLE WITH THE JUDICIAL DUTY TO INTERPRET THE MEANING OF THE CONSTITUTION

In deciding whether to enact the individual mandate as part of the PPACA, Congress had to consider a host of interrelated factors including the following: the cost of health care in the United States; the cost of health insurance; the extent of out-of-pocket expenses for health care; the increase in the cost of health insurance relative to increases in personal income and the cost of living; the absolute and relative cost borne by persons in different income groups; the extent and effect of cost-shifting under current law; and the number and effect of personal bankruptcies attributable to the cost of health care. Most importantly, Congress had to assess the state of the nation�s health and the effect of the lack of adequate insurance upon people�s health.

In deciding whether the nation�s system of paying for medical care ought to be reformed, Congress also had to evaluate the cost and effectiveness of current federally funded programs, including Medicare, 42 U.S.C. §1395, Medicaid, 42 U.S.C. §1396, the National Health Service Corps, 42 U.S.C. §254d, the Veterans Health Administration, 38 U.S.C. §7401, and federally funded community health centers, 42 U.S.C. §254b. For purposes of comparison, Congress had to familiarize itself with the details of the health care delivery systems in other countries as well as the relative cost and efficacy of those programs. Once again, a prime consideration was whether the people of other countries enjoy better health than American citizens.

Congress also had to predict the likely effect of the PPACA on all of the previously mentioned cost and health factors. Specifically, Congress sought to anticipate the likely effect of insurance reforms, including guaranteed issue regardless of health; guaranteed coverage of preexisting conditions; complete coverage for preventive care; coverage for adult children; and minimum medical loss ratios. It had to determine the level of federal subsidies to individuals and families of different income groups that would be necessary to enable them to purchase health insurance and offset out-of-pocket expenses; the future cost of federal contributions to the states that would be necessary to pay for the expansion of Medicaid; and the extent and mix of tax increases and spending reductions that would be necessary to pay for these reforms.

In keeping with our constitutional tradition that the states have served as laboratories for experimentation in governing, Congress also examined the efficacy of health insurance reform in the various states and modeled the PPACA after the plan that was adopted in Massachusetts in 2006, Mass. St. 2006, c. 58 (An Act Providing Access to Affordable, Quality, Accountable Health Care).

In making these determinations Congress had at its disposal an array of economic studies from various sources, including the Agency for Healthcare Research and Quality, the Office of the Actuary of the Centers for Medicare and Medicaid Services, the Congressional Budget office, the Joint Commission on Taxation, the Commonwealth Fund, the Organisation for Economic and Cooperative Development, the World Health Organization of the United Nations, the Kaiser Family Foundation, and Families USA. Congress also was free to consider the voluminous literature published by health care economists as well as their testimony before Congress.

All of the foregoing economic factors had to be considered in designing this complex, comprehensive scheme of legislation. In the words of the District Court below, the various elements of the PPACA are a �finely crafted watch,� containing �approximately 450 separate pieces,� many if not most of which are interrelated and interdependent. Florida v. U.S. Dept. of Health and Human Services, 780 F.Supp.2d 1256, 1304 (N.D. Fla. 2010). Congress had to choose not only from a competing set of economic models and theories but also had to decide how to combine the hundreds of moving parts of this Act into a comprehensive and unified scheme of economic regulation. This was a matter of legislative prerogative and is beyond judicial competency.

In the exercise of its lawmaking function, Congress is not only permitted but expected to take economic data and expert economic opinion into account in determining whether to enact a system of universal health care coverage and in deciding what form that system should take. While judges as individuals are as capable as legislators at understanding and acting upon this information, it is incompatible with their judicial role to bring these considerations to the interpretation of the Constitution. The role of the courts is limited to determining whether Congress had a rational basis for enacting a particular plan of economic legislation.

In our brief we cited a dozen economic studies that bear upon the economic judgments that Congress had to consider in drafting this legislation. We could have cited hundreds.

Generations of Americans have struggled to achieve a program of universal health care. Health care providers, health insurers, consumer advocates, non-profit think tanks, and government agencies have researched this issue for decades and produced mountains of data. The issue has repeatedly come before Congress consuming vast amounts of political energy. (It bears repeating that the model of the "individual mandate" has been a Republican idea for nearly twenty years; the Party abandoned it only when Democrats embraced it after the 2008 election. Until then no-one thought of it as unconstitutional.) Congress worked on this specific legislation for over a year. The law contains over 450 separate provisions, most of which are intertwined and interdependent.

In contrast, the Supreme Court has undertaken review of this law only a few months ago as one case in a particularly full caseload. Even without the health care case this would be a challenging year for the Court to clear its docket. It is understandable – though still alarming – that at oral argument some members of the Court exhibited confusion regarding what was in the law and how the health insurance market works. That confusion reinforces the constitutional principle that under the doctrine of Separation of Powers, economic policy is the province of the political branches, not the judicial branch.

When the courts consider the constitutionality of laws that affect fundamental rights the presumption of constitutionality disappears. The courts are appropriately skeptical of legislation that affects fundamental rights such as freedom of speech, freedom of religion, the right to privacy, or the right of self-defense. But when the courts undertake to review the constitutionality of measures that are designed to adjust economic realities and reassign economic rights and responsibilities, their role is extremely limited, and for good reason. The federal courts do not democratically represent the economic interests of American society. That role is assigned to Congress and the President.

Congress had a rational basis for believing that Americans' lack of access to affordable health care is substantially affecting interstate commerce, and it had a rational basis for believing that the individual mandate is necessary to carry out the plan of universal coverage enacted in the PPACA. The law is constitutional.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

The Attorney General's letter is here. More below.

The President of the United States made a public statement in support of the constitutionality of the Patient Protection and Affordable Care Act. He said that it would be "unprecedented" for the Supreme Court to strike down economic legislation of this magnitude. Judge Jerry Smith of the Fifth Circuit Court of Appeals responded by ordering the Department of Justice to write him a three-page, single-spaced letter discussing the power of the courts to review the constitutionality of legislation. The Attorney General has responded with a letter in support of the President's remarks, concluding that "The President's remarks were fully consistent with the principles described herein."

The letter of the Attorney General reaffirms the fundamental principle that economic legislation comes before the courts cloaked with the presumption of constitutionality – that the courts are not clothed with the power to review the wisdom or necessity of economic laws, but rather must defer to Congress and are bound to uphold such laws so long as they are supported by a "rational basis."

Furthermore, it is Judge Smith, not the President, who appears to fundamentally misunderstand the doctrine of Separation of Powers.

The President of the United States was democratically elected by the people of this nation. One of the most important policy goals of his administration – and one of the fondest hopes of the American people – was that the Congress would enact and the President would sign a law that would establish a system of universal health care. Tens of millions of hardworking Americans can no longer afford health care. They either have no health insurance or their insurance simply isn't adequate: their policies exclude pre-existing conditions, they include high deductibles and co-pays, and they contain annual and lifetime limits on coverage. The President signed the PPACA into law on March 23, 2010, and as the nation's chief law enforcement officer he has defended the law in court. The President could, if he wished, have appeared in the Supreme Court and defended the law personally. (I wish he had.) His defense of the law was measured and appropriate.

In his outburst ordering the Department of Justice to write him a three-page, single-spaced letter about the power of judicial review it is Judge Smith who has overstepped the role assigned to him by the Constitution. Barack Obama, both as President of the United States and as a citizen, has the right to encourage the courts to uphold this landmark legislation. But I know of no principle of constitutional law that grants a judge the power to require the Executive Branch to prepare a dissertation explaining a President's remarks.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

The State Department has released a copy of the February 15, 2006 memo by Philip Zelikow arguing that the "enhanced interrogation techniques" used to question detainees were illegal. The Bush administration had sought to destroy all copies of the memo.

Two days ago Tom Blanton at The National Security Archive posted The Zelikow Memo: Internal Critique of Bush Torture Memos Declassified: Document Sheds Light on Disputes over Treatment of Detainees.

During the previous administration Philip Zelikow served as the attorney for Secretary of State Condaleeza Rice. On February 15, 2006, he issued a memo concluding that the United States had violated several federal statutes and international treaties by torturing prisoners. Not only was his memo ignored, but the administration sought to destroy all copies of it. Blanton quotes Zelikow from a statement he made in 2009:

"My colleagues were entitled to ignore my views. … They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives."

That memo, entitled The McCain Amendment and U.S. Obligations Under Article 16 of the Convention Against Torture, disagreed with the position taken by the administration that the "enhanced interrogation techniques" were perfectly legal.

Zelikow rightly noted that the Convention Against Torture not only prohibited member states from engaging in "torture" but that it also prohibited "cruel, inhuman, and degrading treatment" of prisoners. The United States Senate added an addendum to the treaty stating that "cruel, inhuman, or degrading treatment" was the same as "cruel and unusual punishment" under the Constitution. In other words, the same rules applied to prisoners of war as applied to prisoners in U.S. jails. This was also the plain meaning of Article 3 of the Geneva Convention. In his 2009 article in Foreign Policy entitled The OLC "torture memos": thoughts from a dissenter, Zelikow stated:

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

Zelikow is correct. I came to the same conclusion in my 2008 article Waterboarding Is Illegal.

Some questions of constitutional law and statutory interpretation are difficult. This one is not. If a country sheriff or prison warden in the United States hung a naked prisoner from the ceiling for six days, repeatedly sprayed him with near-freezing water, and prevented him from sleeping for days on end, it would be an open and shut case. Those police or prison guards would be convicted of several crimes and sentenced to jail themselves. Add "waterboarding" to the list – which we called "water torture" and considered to be a war crime when it was practiced by the Nazis, the Japanese, the North Koreans, and the North Vietnamese – and there never was any reasonable doubt about whether this conduct was legal.

And what does it say about an administration that finds it necessary to destroy all copies of a memo stating that it is breaking the law? That is not the act of a government that is confident it is in the right. Open and honest debate on this issue was deliberately suppressed. From the point of view of those who carried out this brutal policy it was necessary to shroud it in secrecy.

These events were a stain upon our nation. We must never allow this to happen again.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation of Powers.

At oral argument last week in the health care case Justice Kennedy made the following remarkable proposals about the presumption of constitutionality:

Could you help � help me with this. Assume for the moment � you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

The answer to both questions is NO. Justice Kennedy's proposed view of the role of the Judicial Branch violates the Separation of Powers.

The Legislative Branch enacts legislation. The Judicial Branch ascertains the meaning of laws and determines whether they are constitutional. In interpreting a statute the courts must defer to the intent of the legislature. The touchstone for statutory interpretation is "the intent of the legislature." Similarly, in assessing the constitutionality of a statute the courts must presume that it is constitutional.

There is only one exception to this rule. If Congress or a state enacts a law that infringes upon an individual's constitutional rights, then the courts will "strictly scrutinize" the law. In such a case the government bears the burden of proving that the law is constitutional – it must prove that the law is necessary to accomplish a compelling governmental interest. If the law does not affect anyone's constitutional rights then the "rational basis test" applies. The person challenging the law has the burden of proving that the law does not have any tendency to accomplish a legitimate governmental purpose.

It used to be that the Supreme Court recognized "economic liberty" as a constitutional right, and frequently struck down laws regulating employers and protecting workers under the theory of "economic substantive due process." That is no longer the case.

Instead, today economic legislation is presumed constitutional. This rule applies whether or not the law is "novel" or "shocking" to the members of the Court. The Supreme Court has recognized this principle in dozens, if not hundreds of cases. Here are but a few quotations from cases demonstrating this basic precept of constitutional law:

[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. United States v. Carolene Products, 304 U.S. 144, 152 (1938) (Stone, J.) (upholding federal law against challenge under Due Process Clause).

[T]o be constitutional � It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) (Douglas, J.) (unanimous decision) (upholding state law against challenge under Equal Protection Clause).

We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (Black, J.) (unanimous decision) (upholding state law against challenge under Due Process Clause).

[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. Katzenbach v. McClung, 379 U.S. 274 303-304 (1964) (Clark, J.) (unanimous decision with concurring opinions by Black, Douglas, and Goldberg, JJ.) (upholding federal law under Commerce Clause).

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976) (Marshall, J.) (upholding federal law against challenge under Due Process Clause).

Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U.S. 144, 153-154 (1938), they cannot prevail so long as �it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.� Id., at 154. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (Brennan, J.) (footnote omitted) (upholding state law against challenge under Equal Protection Clause).

[Referring to] the strong deference accorded legislation in the field of national economic policy�. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 476 U.S. 717, 729 (1984) (Brennan, J.) (unanimous decision upholding federal law against challenge under Due Process Clause).

In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. South Dakota v. Dole, 483 U.S. 203 (1987) (Rehnquist, J.) (upholding federal law under General Welfare Clause).

[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. United States v. Comstock, __ U.S. __, 130 S.Ct. 1949, 1956 (2010) (Breyer, J.) (upholding federal law under Necessary and Proper Clause).

Tthe principle that the courts must defer to Congress on questions of economic policy pervades the Constitution. This principle applies in every field of Constitutional Law – Commerce Clause, Spending Clause, Necessary and Proper Clause, Fifth Amendment Due Process, and Fourteenth Amendment Due Process. This principle is so basic to our system of government that it must be considered a fundamental aspect of the doctrine of Separation of Powers. There is no exception to this principle for "novel" statutes. All statutes are novel. Nor does it matter how significant a departure that the law makes from existing law. It matters not whether the law works a minor or a major change in our society. The people, acting through their representatives in Congress, have the right to determine national economic policy. That is the meaning of the foregoing cases.

In tomorrow's post I will discuss why the courts must defer to Congress in the realm of economic policy.

Wilson Huhn teaches Constitutional Law at The University of Akron.

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

The debate over health care reform has long centered over the concept of individual liberty. The opponents of the law contend that the individual mandate violates the liberty of the individual to decide for himself or herself whether or not to purchase health insurance.

The opponents of the law do not contend that they have a constitutional right to refuse to purchase insurance. They must concede that the states have the power to impose this obligation. Instead, they argue that Congress lacks the power to enact this law under the Commerce Clause or the Necessary and Proper Clause, and that to allow Congress to require individuals to purchase health insurance represents a threat to individual liberty.

This is an argument that resonates with Justice Anthony Kennedy. In opinion after opinion, Justice Kennedy has focused on and elaborated upon the right to "liberty." This is why he decided Citizens United the way he did, holding that corporations have a constitutional right to spend as much money as they wish in support of political candidates. It is why he ruled in Lawrence v. Texas that people have a constitutional right to have sex with other persons of the same gender. It is why in the case of Casey v. Planned Parenthood of Southeastern Pennsylvania he voted to reaffirm Roe v. Wade; even though he is personally opposed to abortion he respects the liberty of a woman to terminate a pregnancy in its early stages.

Kennedy's devotion to the principle of liberty is evident even in his literary style. The first word of his opinion in Lawrence v. Texas is "liberty."  The last word is "freedom." The first word in the joint plurality opinion he co-authored with Justices O'Connor and Souter is "liberty." The last word is also "liberty."

The foregoing are all cases dealing with fundamental individual rights, so it is understandable that Justice Kennedy would invoke the principle of "liberty." But Kennedy has invoked the concept of "liberty" even in cases that are concerned solely with the extent of governmental powers. In Clinton v. New York, for example, a separation of powers case involving the constitutionality of the federal Line Item Veto Act. Justice Kennedy was moved to write a separate concurring opinion in which he rebutted the notion, advanced by Justice Breyer, that the case did not involve an infringement of individual liberty. Kennedy wrote:

Just as Justice Kennedy found in Clinton v. New York that individual liberty was at stake when an enhanced power to rewrite legislation was concentrated in the Executive Branch, so he might find in this case that individual liberty is threatened by an unwarranted expansion of the power of the Legislative Branch to enact legislation requiring individuals to enter commerce.

Kennedy said as much during the first day of oral argument. Kennedy stated to Solicitor General Verrilli:

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

On Monday Solicitor General Donald Verrilli did not have a good answer to Kennedy's concern. Yesterday, however, General Verrilli used his last few minutes on rebuttal in the Medicaid portion of the case to return to this point, and I think the much-criticized advocate for the government hit a rhetorical home run. Here are Verrilli's closing remarks in full:

I'd like to take half a step back here, that this provision, the Medicaid expansion that we're talking about this afternoon and the provisions we talked about yesterday, we've been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can't afford insurance.

There is an important connection, a profound connection, between that problem and liberty. And I do think it's important that we not lose sight of that.

That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty. 

And the same thing will be true for — for a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I could multiply example after example after example.

In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court is considering these issues that that be kept in mind. The — the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem.

Maybe they were right; maybe they weren't. But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court's obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.

And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.

That's exactly right. When we speak of constitutional rights, we speak of "negative liberties," the concept that the government may not invade our inalienable rights of freedom of speech, freedom of religion, and the right to privacy. But when we speak of constitutional powers we are really concerned with "positive liberties" – the right of the American people, through their government, to construct roads, build bridges, protect the weak, feed the hungry, shelter the homeless, free the oppressed, educate our children … and extend adequate access to medical care to all American citizens.

In his book Abraham Lincoln and the Second American Revolution, James McPherson draws a distinction between "positive liberty" and "negative liberty," and defines positive liberty as "freedom to achieve a status of freedom previously denied by disability or law." McPherson, at 62-63, 137-138 (1991). McPherson notes that the powers of the federal government greatly expanded under Abraham Lincoln, whose administration built the transcontinental railroads, created the land-grant colleges, and opened the west to settlement through enactment of the Homestead Act – all during the Civil War. After the War the American people quickly ratified the 13th, 14th, and 15th Amendments all of which granted enforcement powers to Congress to protect our rights against encroachment by the states. The continued expansion of Congressional power under the Commerce Clause and the Spending Clause in the 20th century does not represent an infringement of the liberty of individuals, but rather an enhancement of the right of the American people, through their democratically-elected representatives, to enhance their "positive liberty" by raising their standard of living and improving their quality of life.

I deeply hope that Justice Kennedy and the his colleagues on the Supreme Court observe the limitations of the judicial role in reviewing the constitutionality of economic legislation. This case does not involve an infringement of one of our "negative liberties." Instead it centers upon the power of our government to enhance our "positive liberties" by extending health care to all Americans.

Wilson Huhn teaches Constitutional Law at The University of Akron.

In this post I set forth all of the questions that Justice Kennedy asked the three attorneys at oral argument today in the health care case. Evaluate for yourself which way this "swing justice" is tending.

As we all know, Justice Kennedy is the swing justice; as he goes, so goes the Court. During today's oral argument in the health care case he asked tough questions of all three attorneys: Solicitor General Donald Verrilli, Attorney Paul Clement on behalf of the states challenging the individual mandate, and Michael Carvin on behalf of the individual plaintiffs.

Questions to Solicitor General Donald Verrilli:

Can you create commerce in order to regulate it?

Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?  [General Verrilli responded that Congress could not mandate insurance in markets in which insurance does not serve as the method of payment.]

But why not? If Congress — if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.

I'm not sure which way it cuts, if the Congress has alternate means. Let's assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power.

On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes.

But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

Questions to Attorney Paul Clement:

Is the government's argument this — and maybe I won't state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?

But they are in the market in the sense that they are creating a risk that the market must account for.

Questions to Attorney Michael Carvin:

[Attorney Carvin stated that the government "used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured."  Justice Kennedy stated:]

I agree — I agree that that's what's happening here.

And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That's my concern in the case.

The justices had no questions for Solicitor General Verrilli during his four minutes of rebuttal.

What to make of this? Several news outlets are reporting that the individual mandate is in trouble – that the five conservative justices strongly signaled that they intend to find the individual mandate unconstitutional. See Carrie Budoff Brown, Josh Gerstein, and Jennifer Haberkorn, Politico, Conservative justices skeptical of individual mandate; Huffington Post, Supreme Court Health Care Law: Justices Come Down Hard On The Mandate.

That is not my impression. Certainly Justice Scalia unequivocally indicated that this was his view, and perhaps Justice Alito as well. It is safe to assume that Justice Thomas will vote to strike down the law. But Chief Justice Roberts, though skeptical, did not show his hand.

As for Justice Kennedy, I would describe his questions as thoughtful, probing, and careful – just what we would want from any justice in such an important case and what we would expect from the Court's "swing justice."

In short, Justice Kennedy has doubts. And in a case such as this – where Congress labored a full year to draft landmark legislation enacting a comprehensive statutory program of regulation – legislation that represents the culmination of a generations-long struggle to create a system of universal health care – any doubts must be resolved in favor of the constitutionality of the law.

The courts do not make economic policy – the legislature does. Based on today's oral argument I predict that Justice Kennedy and therefore the Court will uphold the individual mandate.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.

This is another in the series of 11th Amendment cases decided by the Supreme Court in recent years. Essentially, the rule is that if Congress enacts a law pursuant to the Commerce Clause then it may not abrogate state sovereign immunity; it may not empower a person to sue a state government for money damages. However, if Congress enacts a law pursuant to Section 5 of the 14th Amendment, then it may abrogate state sovereign immunity and permit a plaintiff to sue a state for money damages. The reasoning is that when the Constitution was adopted Congress lacked the power to force the states to pay money damages to individuals, but when the 14th Amendment was ratified in 1868, that Amendment expressly provides that "No state shall" deny any person the equal protection of the laws and it authorizes Congress to enforce that provision.

Accordingly, civil rights laws that are adopted pursuant to the 14th Amendment can be used to sue the states for money damages. Civil rights laws that are adopted pursuant to the Commerce Clause may not be used to sue the states for money damages.

Some civil rights laws have portions that were enacted pursuant to the 14th Amendment, and other portions that were enacted pursuant to the Commerce Clause. The Americans with Disabilities Act is one such law.  In this case the Supreme Court ruled that the Family Medical Leave Act is another such law.

I described the facts of this case and the related case law in this earlier post, so I will only briefly summarize the case here. Mr. Coleman asked to take 10 days "sick leave." His employer, the Maryland Court of Appeals, decided instead to terminate his employment. Coleman sued the Court under the "self-care" provision of the Family Medical Leave Act, which guarantees employees the right to take sick leave.

The Supreme Court found that the "self-care" provision of the FMLA was adopted pursuant to the Commerce Clause, not the 14th Amendment.  This ruling was not a surprise.  Every single Court of Appeals that considered the issue came to the same conclusion. The provisions of the FMLA that permitted workers to take unpaid leave to care for other family members was obviously intended to protect women who historically have served as caretakers in our society and who as a result have often had to choose between family and a career. The FMLA is designed to redress this form of gender discrimination.  This argument is much more difficult with respect to the "self-care" provision of the FMLA.  It would seem to treat both genders equally, and is not so clearly directed against gender discrimination.  In light of the approach that the Supreme Court has adopted in these cases the decision of the Court in this case was reasonable.

However, there was no majority opinion. The vote was actually 4-1-4.  Justice Kennedy, in an opinion joined by three other justices, followed the usual path in these cases and determined that the remedy provided by the "self-care" provision of the FMLA was not "congruent with" or "proportionate to" any possible violation of the 14th Amendment by the state. Accordingly this provision of the FMLA was not a 14th Amendment enactment but rather a Commerce Clause measure.

Justice Thomas concurred on the ground that the entire FMLA is a Commerce Clause enactment, and that therefore all lawsuits for money damages against state governments under the FMLA should be barred.  As a result, in Justice Thomas' judgment the Court's decision in Nevada Dept. of Human Resources v. Hibbs (2003) should be overruled.  Justice Thomas was the only justice to take that position in this case.

In an opinion concurring in the judgment only, Justice Scalia came to the same result as the plurality but used different reasoning. He rejected the "congruent and proportionate" test used by Justice Kennedy, and stated that he evaluates the constitutionality of measures under the 14th Amendment by reference to the text of the Amendment:

I adhere to my view that we should instead adopt an approach that is properly tied to the text of §5, which grants Congress the power �to enforce, by appropriate legislation,� the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558�560, outside of the context of racial discrimination (which is different for stare decisis reasons), I would limit Congress�s §5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care�or any other purpose, for that matter�does not come close.

In dissent, Justice Ginsburg, writing for herself and three other justices, would have ruled that the "self-care" provision of the FMLA redresses a form of gender discrimination because working women were most likely to be affected by a situation where an employee could not take sick leave. She stated:

The FMLA�s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee�without singling out women or pregnancy�that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.

Justice Ginsburg makes a persuasive argument that the self-care provision was indeed a valid enactment under the 14th Amendment.

In footnote 1 of her opinion Justice Ginsburg offered another reason why Coleman should be allowed to sue the State of Maryland for money damages under the FMLA. She expresses the view that the entire enterprise of distinguishing 14th Amendment enactments from Commerce Clause enactments is mistaken:

I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power.

Only Justice Breyer agreed with Justice Ginsburg on this point.

I agree with the position that Justice Ginsburg and Justice Breyer took in footnote 1. Unlike the Articles of Confederation, the original Constitution of the United States does not mention the term "state sovereignty."  Instead, it provides that federal law is "the supreme law of the land." Nor does the 11th Amendment lend any support for the proposition that state governments are immune from liability imposed by statutes adopted pursuant to the Commerce Clause. That amendment to the Constitution deals with the jurisdiction of the federal courts, not the power of Congress to enact legislation affecting the states. This entire line of "state sovereign immunity" cases is based upon a wayward policy in search of a constitutional home.

Wilson Huhn has taught Constitutional Law at the University of Akron School of Law for longer than the Supreme Court has recognized "state sovereign immunity" as a constitutional principle.

In the debate over the constitutionality of the federal health care reform law, health insurance companies have maintained a low profile.  The individual mandate was their idea; they wish that the mandate was stronger than it is; and now they are signalling that if the individual mandate is struck down by the Supreme Court, they can not and will not go along with the other insurance reforms in the PPACA.

The health insurance companies and the principal trade group that speaks for them, AHIP (America's Health Insurance Plans), have not explicitly supported the constitutionality of the individual mandate before the Supreme Court.  From a policy standpoint that is inexplicable. In 2008 the insurance industry embraced the concept of achieving universal heath care coverage through the private insurance market, and proposed that the law should require everybody to have health insurance. In its December, 2008, report entitled �Now is the Time for Health Care Reform: A Proposal to Achieve Universal Coverage, Affordability, Quality Improvement and Market Reform,� the AHIP Board of Directors took a courageous position:

Combine guarantee-issue coverage with no pre-existing condition exclusions with an enforceable individual mandate: For guarantee-issue to work, it is necessary for everyone to be brought into the system and participate in obtaining coverage. Achieving this objective will require specific attention to the mechanisms for making the mandate enforceable and may require coordinated action at multiple levels of government. Indeed, the importance of combining guarantee issue with an enforceable individual mandate is borne out by research and experience from the states. For example, a report by Milliman, Inc. found that states that enacted guarantee-issue laws in the absence of an individual coverage requirement saw a rise in insurance premiums, a reduction of individual insurance enrollment, and no significant decrease in the number of uninsured.

Why hasn't the health insurance industry more vigorously supported the constitutionality of the individual mandate? There may be several reasons. First, the mandate is not as strong as the industry wanted.  In its 2008 report it called for an "enforceable" individual mandate, but the PPACA will penalize people only $695 for not having health insurance, far less than such insurance would cost. The health insurers would prefer that the penalty be much higher, and even if the Supreme Court does uphold the law the industry will probably ask that the penalty be increased.

Political considerations may also lie at the base of the reason that the health insurance industry has muffled its support for the individual mandate. At this point in the election season it may not make sense for the pick sides between Republicans who oppose the individual mandate and Democrats who regard it as a necessary evil.  However, that does not mean that the industry is neutral on the subject. Quite the contrary.

On January 6 the insurance industry filed an amicus brief in the Supreme Court on the issue of severability in which the industry advised  the Court that if the individual mandate is struck down, other insurance reforms like guaranteed issue (the requirement that insurance companies sell policies to persons with preexisting conditions); guaranteed coverage (the requirement that those policies cover preexisting conditions); and community ratings (health insurance must cost the same for all persons in the community) should also be struck down because they are not "severable" from the individual mandate. In a press release announcing the filing of the brief, AHIP stated:

The brief is intended to serve as a resource to deepen the Court�s understanding of the real-world economic implications for consumers of delinking major provisions of the law that were widely understood to be companion solutions as the nation debated health care reform.

Yesterday the insurance companies issued yet another warning to the Court. In a press release the industry noted that:

opinion leaders of all stripes and news outlets have been noting the inextricable link between the market reforms included in the ACA and the individual mandate.

The press release quoted Senator Joe Lieberman stating, "Unless you have a mandate … the Affordable Care Act has to change;" Paul Krugman: "Simply requiring insurers cover people with pre-existing conditions … doesn't work;"  CBS News: "If the mandate is struck down, the requirement that insurance companies cover those with pre-existing conditions would become unworkable;"  Kaiser Health News: "Keeping the premiums affordable – for both individuals and the government – hinges on making sure health people enroll in insurance too."

Also yesterday the health insurance industry sent an even stronger signal to Congress through a story published in the Wall Street Journal. In an article by Louise Radnofsky entitled Insurers Set Plans in Case Mandate is Quashed, the author quoted several spokespersons for the health insurance industry as stating that if the individual mandate is declared unconstitutional then popular reforms like guaranteed coverage will have to be repealed. Radnofsky states:

Several officials from large health insurers said that if the mandate were struck down, their first priority would be persuading members of Congress to repeal two of the law's major insurance changes: a requirement to cover everyone regardless of his or her medical history, and limits on how much insurers can vary premiums based on age.

The health insurers' position is bolstered by a January, 2012, report from the Robert Woods Johnson Foundation by Matthew Buettgens and Caitlin Carroll entitled Eliminating the Individual Mandate: Effects on Premiums, Coverage, and Uncompensated Care. Buettgens and Carroll estimate that if the individual mandate is eliminated health insurance premiums would increase between 10% and 25% and the number of uninsured persons would increase by more than 50%.

There may be alternatives to the individual mandate. There may be other ways to encourage people to purchase health insurance. But the bottom line is that if the individual mandate is stuck down, guaranteed coverage and community rating will disappear with it.  People who are unable to procure or afford health insurance will either have to go without medical care or the taxpayers will have to pick up the tab.

Wilson Huhn is a professor of Constitutional Law at The University of Akron School of Law.

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the First Amendment.

The MEK, known in English as the "People's Mujahadeen of Iran," is a large military organization that has shifted its ideology and allegiance many times over the years. Before 1979 the organization mounted many attacks against westerners in Iran and assassinated several Americans. In 1979 it supported taking the American diplomats in Teheran hostage. After the Iranian Revolution the MEK began fighting the new Iranian leadership; it found refuge in Iraq and fought alongside Saddam Hussein against both Iran and Iraq's own Kurdish population. Over the years the MEK has been accused of numerous war crimes and human rights violations. In 1997 the State Department added the MEK to the list of designated terrorist organizations. Recently the group has been implicated in the assassination of Iranian scientists.

The MEK, of course, wishes to be removed from the State Department list of designated terrorist organizations, and it has persuaded many prominent Americans to support its efforts.  The Huffington Post has published a list of 33 leading Democrats and Republicans who spoke on behalf of the MEK at MEK-related meetings and conferences over a seven-month period between December 2010 and July 2011. The first two names on the list, which is arranged alphabetically, are former U.S. Senator Evan Bayh, a Democrat, and former U.N. ambassador John Bolton, a Republican. Gus Taylor of the Washington Times reports that Ed Rendell, former Governor of Pennsylvania, and other prominent figures earned speaking fees for their appearances on behalf of the MEK. Ryan J. Reilly at Talking Points Memo also reports that several of the speakers earned fees. Glenn Greenwald at Salon argues that even if the speakers were not paid, the speakers may have broken the law, because the Supreme Court ruled in the Humanitarian Law Project case that advocacy for terrorist organizations may be punished if it is "coordinated" with the terrorist organization.

Is Greenwald right?  Have these American politicians stepped beyond the bounds of the First Amendment as interpreted by the Supreme Court and violated the law?

The federal statute that governs this matter is the Antiterrorism and Effective Death Penalty Act.  The law prohibits people from providing "material support" to a terrorist organization. The key legal issue in this case is whether what these political figures said constitutes "material support." The key factual issue is whether they made these statements at the request of or in coordination with the MEK.

The federal Antiterrorism and Effective Death Penalty Act is codified at 18 U.S.C. 2339B.  It provides, in relevant part:

The term "material support" is defined at 18 U.S.C. 2339A.  The relevant portions of that statute provide:

the term �material support or resources� means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

the term �expert advice or assistance� means advice or assistance derived from scientific, technical or other specialized knowledge.

The Humanitarian Law Project challenged the constitutionality of this law as applied to peaceful advocacy. The HLP and other advocacy groups wanted to work with terrorist organizations to train them how to achieve their goals through peaceful means. They wished to teach organizations such as the PKK (a Kurdish terrorist organization) or the LTTE (a Sri Lankan terrorist group) how to effectively lobby institutions such as Congress or the United Nations or how to apply for grants for peaceful purposes such as water projects. The HLP and other humanitarian groups claimed that they have the right, under the First Amendment, to work with terrorist groups to turn them into the paths of peace.

The United States Supreme Court, by a vote of 6 to 3, rejected the constitutional claims of the Humanitarian Law Project. The majority of the Court found that advocacy on behalf of a terrorist organization is constitutionally protected only if the speech is undertaken wholly independently of the organization. If the "service" is rendered in coordination with the terrorist organization, then it falls outside the protection of the First Amendment and the government may impose criminal sanctions for such speech. Here are the key portions of Chief Justice Roberts' opinion:

the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.

The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization.  Independent advocacy that might be viewed as promoting the group's legitimacy is not covered.

Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.

One of the principal reasons that Chief Justice Roberts offered in support of the ban on "material support" for terrorist organizations was that such support lends "legitimacy" to a terrorist organization:

Material support meant to "promot[e] peaceable, lawful conduct," Brief for Plaintiffs 51, can further terrorism by foreign groups in multiple ways.  "Material support" is a valuable resource by definition.  Such support frees up other resources within the organization that may be put to violent ends.  It also importantly helps lend legitimacy to foreign terrorist groups–legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds–all of which facilitate more terrorist attacks.

In a powerful dissenting opinion, Justice Breyer, joined by Justices Ginsburg and Sotomayor, rejected the majority's "legitimizing" rationale for upholding the law:

But this "legitimacy" justification cannot by itself warrant suppression of political speech, advocacy, and association.  Speech, association, and related activities on behalf of a group will often, perhaps always, help to legitimate that group.  Thus, were the law to accept a "legitimating" effect, in and of itself and without qualification, as providing sufficient grounds for imposing such a ban, the First Amendment battle would be lost in untold instances where it should be won.  Once one accepts this argument, there is no natural stopping place.  The argument applies as strongly to "independent" as to "coordinated" advocacy.

Breyer emphasized that independent advocacy on behalf of a terrorist organization is at least as likely to "legitimize" a group as coordinated advocacy is:

Nor can the Government overcome these considerations simply by narrowing the covered activities to those that involve coordinated, rather than independent, advocacy. Conversations, discussions, or logistical arrangements might well prove necessary to carry out the speech-related activities here at issue (just as conversations and discussions are a necessary part of membership in any organization).  The Government does not distinguish this kind of "coordination" from any other.  I am not aware of any form of words that might be used to describe "coordination" that would not, at a minimum, seriously chill not only the kind of activities the plaintiffs raise before us, but also the "independent advocacy" the Government purports to permit.  And, as for the Government's willingness to distinguish independent advocacy from coordinated advocacy, the former is more likely, not less likely, to confer legitimacy than the latter.  Thus, other things being equal, the distinction "coordination" makes is arbitrary in respect to furthering the statute's purposes.  And a rule of law that finds the "legitimacy" argument adequate in respect to the latter would have a hard time distinguishing a statute that sought to attack the former.

The speeches and appearances by American political leaders on behalf of the MEK are quite literally intended to "legitimize" the groups by having it removed from the list of designated terrorist organizations. They therefore fall within the ambit of the statute's purpose, as interpreted by the majority of the Supreme Court.

Do these speeches constitute "material support" for the MEK within the meaning of the statute?

From a lay perspective the speeches advocating the legitimization of the MEK would clearly constitute "material support" for the organization. As a matter of statutory construction, speeches on behalf of the MEK would constitute either a "service" or "expert advice or assistance" under 18 U.S.C. 2339A.

The final question is whether or not the speeches and appearances by American political figures on behalf of the MEK were "independent advocacy" or were "coordinated" with the organization.  Greenwald quotes a State Department official describing how these speaking engagements are often arranged:

�Your speech agent calls, and says you get $20,000 to speak for 20 minutes. They will send a private jet, you get $25,000 more when you are done, and they will send a team to brief you on what to say.�

If this is how the speaking appearances were arranged, they would clearly seem to constitute "coordination" with a terrorist organization.

Greenwald decries the fact that many individual Muslims in the United States have been prosecuted and imprisoned for offering far less "material support" to designated terrorist organizations than these mainstream Christian politicians have tendered to the MEK. On First Amendment grounds Greenwald does not support the anti-terrorism law insofar as it punishes political speech, but on fairness grounds he does support the ongoing investigation into the activities of the MEK supporters.

The problem with the anti-terrorism law and the Supreme Court's decision in Holder v. Humanitarian Law Project is a recurring one in American history. It is the same problem we have faced in every major conflict. During war or the threat of war the people are afraid and the government enacts laws prohibiting advocacy on behalf of the nation's enemies. The Alien and Sedition Act was enacted by the Adams administration during the undeclared war with France; Lincoln suspended habeas corpus and prosecuted Copperhead leaders in military tribunals during the Civil War; the Espionage Act was intended to squelch opposition to World War I; the Smith Act, enacted during the Cold War, made it a crime to belong to the Communist Party; Amendments to the Selective Service Act adopted during the Vietnam War made it a crime to burn a draft card; and now the Antiterrorism Act outlaws "material support" for terrorist organizations, including speech that is directed at lawful and peaceful purposes.

There is a hopeful aspect to this history.  During wartime, the courts have generally upheld these types of laws repressing speech. Once the threat has passed, however, the courts have almost always recognized that those laws violate the First Amendment.  It is safe to predict that this apsect of the Antiterrorism law will also be declared unconstitutional once the fear of terrorism fades.

But it is not enough that we should enjoy freedom of speech only when the country is not afraid.  As Justice Robert Jackson said at the height of World War II in West Virginia Board of Education v. Barnette (1943):

It is also appropriate to remember the words of Justice Louis Brandeis about fear and the First Amendment. During the first Red Scare, in arguing in support of an American's right to help organize the Communist Party, he told us that "those who won our independence were not cowards," and that "fear breeds repression."

We should not be so afraid of terrorism that we sacrifice our most cherished tradition: the right to speak freely. The Supreme Court's decision in Holder v. Humanitarian Law Project should be overruled.

The entire passage from Brandeis' opinion in Whitney v. California is set forth below.

***

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Louis Brandeis, from Whitney v. California (1927)

Rush Limbaugh has a long history of demeaning people based upon their gender, race, religion, and sexual orientation. His record is a perfect demonstration of the fact that in the context of a public address hate speech is protected by the First Amendment. That does not mean that other people have to put up with it.

The Constitution protects many categories of speech that other people find offensive. People have the right to distribute, read, and view pornography. People have the right to burn the American flag in protest. People have the right to advocate that there be a Communist revolution. People have the right to praise Islamic terrorists.

People also have the right to make statements that are misognynistic, racist, anti-gay, and Islamophobic. Over the years Rush Limbaugh has persistently exercised his right to freedom of speech in those ways. It is the centerpiece of his political philosophy, the foundation of his entire career. As a white, straight, christian male he believes that he is superior to all other people who do not share all of those characteristics. I won't repeat his despicable language.  If you choose you may see his statements by linking to any of the following sites that have recorded the "highlights"  of his broadcasting career:

Gane McCalla, at NewsOne, Republished! Top 10 Limbaugh Racist Quotes (don't miss the ones set forth in the comments!);

John H. Richardson, Esquire, The Rush Limbaugh Racism No One's Paying Attention To (editor's note to John: A preposition is a terrible thing to end a sentence with!);

John K. Wilson, Rush's 53 Smears Against Sandra Fluke (in case you thought that Rush just "misspoke" when he called Fluke a couple of vile names);

Adam Clark Estes, Rush Limbaugh's Latest Verbal Victim Feels Derided, Dismissed (the day after he apologized to Fluke Limbaugh viciously attacked another woman).

Limbaugh has long kept Media Matters for America busy.  Their research department has compiled a lengthy list of Limbaugh's "greatest hits:"

The 20 Worst Racial Attacks Limbaugh's Advertisers Have Sponsored

15 Of Limbaugh's Most Offensive And Controversial Comments Targeting Immigrants

Rush Limbaugh's Worst Advertiser-Sponsored Attacks On The LGBT Community

"Feminazi": The Origin of Limbaugh's Trademark Slur Against Women

Rush Limbaugh's Decades Of Sexism And Misogyny

Limbaugh: Islam "Most-Known" for Its "Terrorist Wing"

Limbaugh calls Islamic cultural center "a victory monument at Ground Zero"

The 10 Worst Advertiser-Sponsored Moments Limbaugh Laughed At Human Suffering

UPDATED: Limbaugh's Misogynistic Attack On Georgetown Law Student Continues With Increased Vitriol

10 Of Limbaugh's Worst Advertiser-Sponsored Attacks On The Poor

No-one may be prosecuted, fined, or put in jail for indulging in any of these forms of hate speech.

But society does place limits on the time, place, or manner of speech. I wouldn't recommend bringing pornography to work or posting it in one's cubicle. It's probably unwise for a student to burn an American flag in his or her dormitory. You might think twice before calling someone a vile name at work or at school. Just because hate speech is constitutionally protected from criminal prosecution does not mean that it must be tolerated at all times or places. If Rush were to speak to one of his employees the way he so often speaks on the air he would be subject to sanction under non-discrimination laws.  If as a student he were to repeat some of his on-air comments in class he might be removed from the classroom, suspended, or expelled.  In 2003, Limbaugh's mercifully short tenure as a ESPN commentator came to a close after he made gratuitous, racist remarks about quarterback Donavan McNabb.  The law may not punish hate speech, but that does not mean that there are not consequences for it.

As the host of a talk radio show Limbaugh is relatively insulated from legal consquences for engaging in hate speech.  The law rightfully imposes few limits on a person who is addressing the public.  Among those limits: the speaker may not incite a riot; the speaker may not defame individuals; and the speaker may not depict obscenity.  Short of those circumstances, however, as a radio host or a commentator Limbaugh can say or write whatever he wants and the law can and should do nothing about it.

The remedy for bad speech is more speech. Those who disagree with Limbaugh's message of hate can speak out against it, as I do today; refuse to listen to his programs; or boycott his sponsors. All of these responses, as well, are protected by the First Amendment.

Those of you who are inclined to defend Limbaugh, please don't pretend "everybody talks like this." No decent person does. Please don't try to justify him by pointing to some equally vile statement made by someone else. I would condemn that too, as should every decent person. And please don't defend what he has said by claiming that he has a constitutional right to say these things. I agree.

It's still wrong.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court to spare specific provisions of the Act.  The number and significance of these provisions remind us how vast and encompassing this law is, and how unlikely it is that the Supreme Court will declare it unconstitutional.

The AARP and several other organizations who advocate on behalf of Medicare not surprisingly contend in their brief that certain provisions of the law strengthening Medicare should be insulated from being struck down with the individual mandate.  The provisions they hope to keep afloat include the elimination of the "donut hole" (a deductible) for prescription drugs; access to preventive health services; access to chemotherapy and dialysis; incentives to improve quality of care; provisions that would permit persons receiving long-term care to remain in the community and avoid institutionalization; provisions improving coordination of services; and provisions aimed at preventing neglect and abuse of the elderly.

The amicus brief of the National Indian Health Board, other Indian organizations and tribes argues that the reauthorization of the Indian Health Care Improvement Act and other provisions of the ACA improving medical services to Indians are severable from the individual mandate and should be preserved.

In its brief the Washington & Lee University Law School Black Lung Clinic argues that if the individual mandate is struck down the remainder of the ACA should be upheld in its entirety, particularly Section 1556, the Black Lung Benefits Act, which extends eligibility for federal benefits for several of the clinic's clients.

A brief filed by about 50 Asian-American advocacy organizations maintains that the Affordable Care Act contains a number of provisions that address the "unique health care needs" of Asian-Americans and that will increase access to health care for all Americans.  These provisions include the SHOP Act that extends tax credits to small businesses allowing them to provide health care to owners and employees; Medicaid expansion; tax credits for individuals to purchase health insurance; enhanced coverage for dependents; and elimination of exclusions for preexisting conditions.  The brief also identifies several provisions of the law creating programs specifically addressing the health needs of minority communities including the promotion of culturally and linguistically appropriate care, increasing the diversity of the medical workforce, and enhanced data collection and analysis.

The brief of the American Public Health Association, American Lung Association, and about a dozen similar advocacy groups ask the Court to preserve a number of preventive and public health programs that are addressed to the treatment of chronic diseases in the United States: "Amici public health and prevention organizations write here to emphasize the crucial importance of federal public health and prevention initiatives not only for the well-being of millions of individuals but also for the United States itself."

A number of physician groups including the Society for Internal Medicine point out in their brief (as I have) that the parties who argue that the individual mandate is so integral to the entire Affordable Care Act are in effect making "a lengthy concession that the minimum coverage provision is an 'essential part of a larger regulation of economic activity' and therefore constitutional" under the Necessary and Proper Clause.  Somewhat contradictorily, in their brief these groups ask the Court to uphold as severable from the individual mandate provisions of the law extending access to health care to underserved areas, fostering primary care, and promoting comparative effectiveness research.

A number of amicus briefs argue that the Act as a whole is entirely severable from the individual mandate.  This is the position taken in the brief submitted by David R. Riemer and Community Advocates, a Milwaukee activist and group that assists the poor in gaining access to medical care.  They say:

One of the ACA's key goals is to reduce the number of uninsured Americans.  Regardless of the fate of the individual coverage provision, the ACA will move the nation a long way towards achieving this goal.

Eleven states, the District of Columbia, and the Governor of Washington contend in their amicus brief that the individual mandate is severable from the remainder of the Act in part because some of the reforms have already gone into effect two years before the mandate becomes effective, and in part because many states have taken action in reliance upon the validity of the remainder of the Act.

In a very brief brief, the Missouri Attorney General identifies five specific provisions that have already gone into effect as illustrative of parts of the law that should be preserved even if the individual mandate is struck down: funding for maternal, infant, and early childhood care; the prevention and public health fund; funding for school-based health centers; nutritional labeling for chain restaurants; and break time for nursing mothers.

Michigan Legal Services filed one the most heartfelt briefs on severability.  Its brief contends that the individual mandate is fully severable from the remainder of the Act because the Act as a whole is intended to extend medical care to the poor, and that its remaining portions should therefore stay in effect.  The brief is dedicated to "those who have suffered under the present system – especially to the thousands who have died because they had no insurance and no access to affordable care."

The amicus brief filed by the United States Chamber of Commerce on the issue of severability actually presents a highly persuasive argument in support of the constitutionality of the individual mandate in the Affordable Care Act.

The Chamber of Commerce, like several other business interests, oppose the Affordable Care Act not so much because they dislike the individual mandate but because they oppose the employer mandate.  In its brief to the Supreme Court arguing against severability, however, the Chamber of Commerce unintentionally advances powerful arguments that will persuade the Supreme Court to uphold the constitutionality of the individual mandate, and to do so right now.

In this particular brief the Chamber of Commerce contends that the rest of the Affordable Care Act is not "severable" from the individual mandate – that is, if the Court rules that the individual mandate is unconstitutional, it must strike down the entire Affordable Care Act.  The central theme of the Chamber's brief is that the individual mandate is "essential" to the remainder of the Act.  The word "essential" appears 31 times in the brief – the "essential" nature of the individual mandate is a drumbeat, a lietmotif.  A few examples:

The individual mandate â��is essential to creating effective health insurance markets …"

The mandate is â��essentialâ�� to much more of the Act than the guaranteed-issue and community-rating reforms. …

Attempting to decipher how the market for health insurance will respond when one "essential"thread is pulled, in a statute this complicated and vast, is a task that Congress is institutionally much better situated to undertake. …

The mandate is at least is essential to the operation of the private insurance reforms in Title I of the Act, but there can be no doubt that invalidating the mandate will also affect the remainder of the Actâ��s operation, and its overarching purpose of expanding coverage to nearly all Americans. …

Judicial restraint and a candid recognition of the institutional limitations of the judiciary require rejecting the claim that the â��essentialâ�� aspect of such a vast and complex regulatory scheme can be severed without consequence. …

As demonstrated above, the individual mandate is "essential" to much more than just those two sets of reforms. …

More important, the PPACA�s sheer complexity, the interdependence of its provisions, and its immense regulatory reach render it unlike any statute at issue in the Court�s modern severability jurisprudence.

As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce.  Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

The uncertainty over which provisions of the PPACA will remain continues to act as an enormous drag on American businesses and the economy. Swift resolution of the severability question is critically important, and this Court should therefore provide a definitive answer now, without the necessity for remand.

Some amicus briefs remind me of that old Pete Seeger song, Which Side Are You On?

Interested Americans have filed dozens of amicus briefs in the Supreme Court of the United States arguing for and against the constitutionality of the Affordable Care Act.  There are a number of things to take into account in deciding whether to file an amicus brief.  One consideration, for example, is whether one has anything new to say that has not already been covered by the courts or the parties.  Another even more basic consideration, you would think, is whether one is going to help or hurt the cause that one purports to support.

Single Payer Action and fifty doctors filed an amicus brief contending that the Affordable Care Act is unconstitutional because it doesn't go far enough!  They support the adoption of a government-run health care system, and decry the Affordable Care Act as a halfway measure that will not do enough to ensure health care coverage for Americans.  They contend that for-profit health insurance companies will routinely deny coverage and that the law will leave too many people uninsured.

Single Payer Action's consitutional analysis is that the individual mandate is not "necessary" (as in "Necessary and Proper") because the federal government could have simply extended Medicare or Veteran's Health Administration benefits to everybody.  I am not persuaded by this argument.  It is of course true that the individual mandate would not be "necessary" if the government were to take over paying for or delivering health care.  But it is necessary to the particular program of regulation that Congress enacted in the Affordable Care Act.  The group concedes that the Affordable Care Act would not work without the individual mandate.  They simply wish that Congress had enacted another plan of regulation altogether.

Single Payer Action explains its position in the introductory portion of their brief:

This is not an isolated position.  Surveys show while Americans are about equally divided about the wisdom of the Affordable Care Act and whether it should be repealed, about one-fourth of those opposing the Act – about 13% of Americans – would prefer that "the law had gone further."  See Associated Press Repeal?: Most Americans Believe Health Care Reform Did Not Go Far Enough, Poll Finds (September 25, 2010); Washington Post – ABC News Poll (January 16, 2011); CNN Poll: Time Doesn't Change Views on Health Care Law (March 23, 2011).

It is certainly legitimate for Single Payer Action and other groups to support the adoption of a government-funded or government-operated system like Canada's or Britain's.  But such a system is not about to be adopted in the United States.  When the Democratic Party controlled both Houses of Congress in 2009-2010 it was not even able to include a "public option" in the Affordable Care Act, let alone make it the exclusive method of paying for health care.  In this country with its strong history of reliance on the private sector it makes sense to try to achieve universal coverage through individually mandated private health insurance.  If that doesn't work we can enact more comprehensive reform.

It took a monumental effort to enact the Affordable Care Act.  Groups like Single Payer Action would throw all that away on the chimerical notion that they would be closer to their goal of universal coverage if we started over.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Recent events including the introduction and defeat of the Blunt Amendment in the United States Senate and political commentator Rush Limbaugh's vicious attack on Sandra Fluke in the context of the debate over birth control have highlighted the extent to which the major American political parties have become polarized on gender issues, with women favoring the Democratic Party.  But this was not always the case.  Historically women identified more with the Republican Party.

Here is a historical perspective with data concerning the "gender gap" in national politics.

Congress

From the Historical Data page of the website Women in Congress:

The first woman to serve in Congress was Jeannette Rankin, Republican of Montana, who took office in 1917.

In 1950, the year I was born, nine members of the House of Representatives and one Senator were women.  That year five of the female members of Congress and the lone female Senator were Republicans.

In the 112th Congress 78 members of the House and 17 members of the Senate are women.  Of these, fewer than one-third are Republicans (24 of the House members and five of the Senators).

Supreme Court

From the Justices portion at Oyez:

The first female justice on the Supreme Court was Sandra Day O'Connor, who served from 1981 to 2006.  She was a Republican.  The second, third, and fourth women appointed to the Court are still serving: Ruth Bader Ginsburg (1993), Sonia Sotomayor (2009), and Elena Kagan (2010).  All three are Democrats.

Elections for President

There has never been a female President, but there has been a "gender gap" in presidential elections at least since 1928.  Before 1980 women either were neutral or favored Republican candidates for the presidency.  Jo Freeman in Gender Gaps in Presidential Elections notes that women strongly preferred Herbert Hoover in 1928 and Dwight Eisenhower in 1952.  Since 1980 women have favored the Democratic candidate for the presidency.  Freeman explains:

Historically, it was the Republican Party that was the party of women's rights, and the Democratic Party that was the home of anti-feminism. After the new feminist movement rose in the 1960s-70s, the parties switched sides.

The Center for the American Woman in Politics has published a Fact Sheet The Gender Gap: Voting Choices in Presidential Elections showing how men and women have voted in Presidential elections since 1980.  In 2008 women favored Barack Obama over John McCain by 7 percentage points.

Comparison to the African-American Civil Rights Movement

The movement of women from the Republican to the Democratic Party mirrors what occurred with  African-Americans.  The party of Lincoln was responsible for the Emancipation Proclamation and the adoption of the 13th, 14th, and 15th Amendments to the Constitution, and supported equal rights through the 1920s.  Warren Harding, for example, openly advocated equal rights, appointed African-Americans to federal positions, and supported the adoption of the Dyer Bill, an anti-lynching law.  After 1968 the Republican Party moved to the right on civil rights as it became reliant on southern and socially conservative white voters.  Meanwhile during the administration of Franklin Roosevelt, First Lady Eleanor worked tirelessly for equal rights for African-Americans, and under the administrations of Jack Kennedy and Lyndon Johnson the Democratic Party moved into the forefront in defense of equal rights on the basis of both gender and race.

Barack Obama's recent phone call to Sandra Fluke is reminiscent of Jack Kennedy's first phone call to Coretta Scott King.  In 2012, an African-American President called a white woman who was the victim of a despicable misogynist attack from a leading national commentator to reassure her that her parents should be proud of her.  In 1960 a white presidential candidate called the African-American wife of the leading figure of the civil rights movement, who had been arrested on trumped-up charges, to reassure her of her husband's safety.  Shortly after Kennedy reached out to Coretta King, Martin Luther King, Sr. told Morris Abram that he had thrown his support to the Democratic candidate because Kennedy had "called my daughter-in-law and wiped the tears from her eyes."  But that is a story worthy of a posting of its own.

In a speech yesterday at Northwestern University Law School Attorney General Eric Holder addressed  a number of legal issues associated with the war against al Qaeda and its allies.  Specifically, he identified the factors that the Executive Branch takes into account in targeting enemy combatants. The legal issues discussed by Attorney General Holder yesterday all turn upon one basic question: are we at "war" with al Qaeda?   I think it is clear that we are war with Al Qaeda, and that the law of war therefore applies.  I discuss those propositions first, and then turn to a description of Holder's speech.

Are We At War With Al Qaeda?

On February 23, 1998, Osama bin Ladin, the leader of al Qaeda, and the leaders of four other Islamic radical groups, issued a fatwa calling for the indiscriminate killing of all Americans everywhere.  Al Qaeda then carried out a series of attacks against America.  On August 7, 1998, hundreds of people were killed in bombings at U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya.  On October 12, 2000, 17 American sailors were killed and 39 injured when the U.S.S. Cole was subjected to a suicide attack in the port of Aden, Yemen.  On September 11, 2001, 2,977 Americans were killed in the air and on the ground in the four attacks on American soil.  At the time of these attacks al Qaeda was harbored and protected by the Taliban which at that time controlled most of Afghanistan.

On September 18, 2001, Congress enacted the Authorization for Use of Military Force (AUMF) empowering  the President to use "all necessary force" against any nations, organizations, or persons involved in the 9/11 attacks:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The AUMF has the same legal effect as a declaration of war.

The AUMF is not a declaration of war against all terrorist organizations.  The "War on Terrorism" is a metaphor like the "war on drugs" or the "war on poverty."  But as to those nations, organizations, and persons who assisted or carried out the 9/11 attacks we are at war.

The Legal Consequences of the Fact That We At War

The fact that we are at war with al Qaeda, the Taliban, and affiliated groups has several legal ramifications. The active military members of those groups are enemy soldiers who may be taken prisoner or killed wherever they can be found.  Once taken prisoner they may be detained for the duration of the conflict under humane conditions.  If guilty of war crimes they may be tried before a properly constituted military commission.  Those who are guilty of violations of the criminal law may also be tried in civilian court.

Holder's Speech

In his speech Holder assumed that we are at war with al Qaeda and that the law of war applies.  But the thrust of his speech was that in the conduct of this war we must remain faithful to the Constitution and the Rule of Law:

But just as surely as we are a nation at war, we also are a nation of laws and values. Even when under attack, our actions must always be grounded on the bedrock of the Constitution � and must always be consistent with statutes, court precedent, the rule of law and our founding ideals. Not only is this the right thing to do � history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.

Holder reviewed several steps that the United States had taken to combat terrorism while protecting the constitutional rights of American citizens.

• Increased and more efficient sharing of information among intelligence and law enforcement agencies;
• Effective use of the criminal justice system and the revised military commissions, both of which are necessary to combat terrorism; and
• The "appropriate and lawful use of lethal force."

It is the third of these that is the subject of this post.

Holder cited three legal authorities for the targeting killings carried out by the Executive Branch:  the AUMF, the United States Constitution, and international law:

In response to the attacks perpetrated � and the continuing threat posed � by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

Holder maintained that the United States has the right to target al Qaeda wherever it is located.

We are at war with a stateless enemy, prone to shifting operations from country to country.

He stated that it is "entirely lawful" to target "senior operational leaders" of al Qaeda, and cited an example from World War II:

Furthermore, it is entirely lawful � under both United States law and applicable law of war principles � to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto � the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway � and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

Holder concluded that it was not accurate to refer to these military operations as "assassinations" which are "unlawful killings."

Holder then noted the "unfortunate but undeniable fact" that a small number of American citizens had joined al Qaeda and chosen to mount attacks against the United States, and he cited stated that American citizenship did not confer immunity upon them:

Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it�s clear that United States citizenship alone does not make such individuals immune from being targeted.

At this point the Attorney General made a mistake – a common mistake.  He cited the Due Process Clause of the 5th Amendment as protecting the rights of "citizens."  It does not.  The 5th Amendment protects all "persons" from being deprived of life, liberty, or property without due process of law.

The Attorney General properly described the Due Process Clause as requiring a balancing of interests:

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause � including in a case involving a U.S. citizen captured in the conflict against al Qaeda � the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.

The case Holder was referring to as involving a U.S. citizen captured in the conflict against al Qaeda is Hamdi v. United States (2004).

In the context of targeted killings, Holder described the Due Process Clause as imposing upon the government the duty to balance the rights of American citizens against the need to protect the country from military attack:

Here, the interests on both sides of the scale are extraordinarily weighty. An individual�s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

Holder proceed to identify the factors that the United States takes into account in determining whether to target a U.S. citizen who is a senior operational leader of al Qaeda in a foreign country:

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

Holder stated that the government need not wait until the last possible moment to deter an attack upon the United States:

Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Nor would it be necessary in all circumstances to attempt to capture rather than kill a U.S. citizen who is a senior operational leader of al Qaeda in a foreign country:

Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.

Holder then identified the four principles of the law of war that would govern the use of deadly force:

Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets � such as combatants, civilians directly participating in hostilities, and military objectives � may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

Holder stated that the four principles governing the use of force did not rule out the use of drones or other technologically advanced weapons.

Holder then addressed the issue that Ron Paul, the A.C.L.U., and others have raised: whether the determination to target an American citizen abroad should be made by a court rather than the executive branch.  Holder conceded that we normally associate "due process" with court proceedings.  On the other hand, he noted that due process also governs proceedings before administrative agencies and military tribunals (Hamdi).  Holder continued:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. �Due process� and �judicial process� are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments � all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution�s guarantee of due process is ironclad, and it is essential � but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war � even if that individual happens to be a U.S. citizen.

The "recent court decision" Holder was referring to was Al Aulaki v. Obama, 727 F.Supp.2d 1 (D.C. 2010).  In that case the District Court did not specifically rule that prior judicial approval for a targeted killing is not required by the Constitution.  Instead, the Court found that the courts lack jurisdiction under the Constitution to decide such a case:

Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff�s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

In yesterday's speech Holder agreed that oversight belonged not to the judicial branch, but to the legislative:

That is not to say that the Executive Branch has � or should ever have � the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

Two days ago I summarized the issues in this case.  Yesterday's post described the Solicitor General's presentation to the Supreme Court in oral argument.  Today I describe the television broadcasters' arguments to the Court, through their attorneys Carter G. Phillips and Seth P. Waxman.  The transcript of oral argument is available here.

Attorney Phillips attempted to argue that the "indecency" regulations were recently adopted and that therefore they do not constitute a longstanding understanding between the nation and the nation's broadcast media.  Chief Justice Roberts immediately interrupted Phillips, insisting that broadcasts were becoming more indecent:

CHIEF JUSTICE ROBERTS: Well, that's because broadcasts didn't commonly have this sort of — these sorts of words or these sorts of images.

MR. PHILLIPS: Well, maybe, maybe not. We don't know. All we know is that for a period of

50 years, nothing happened. So, the idea –

CHIEF JUSTICE ROBERTS: Well, no, we know.

JUSTICE SCALIA: Yes, that's right.

CHIEF JUSTICE ROBERTS: I mean, we can — it was not the case from 1927 till whenever you — what, 1970-something — that nudity commonly appeared on broadcast television or the various words we're dealing with here commonly appeared. So, it seems a bit much to say, well, they didn't bring any cases for that period.  There were no cases to be brought.

Justice Kagan then brought up the government's strongest argument for continuing to subject broadcast television programmers to standards of decency that are not required of cable programmers – the "safe haven" justification – that viewers should have some television channels where they can be sure they will not be exposed to indecency:

JUSTICE KAGAN:  It seems to work and it — it seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore [Huhn - because on cable there is no longer a problem of "frequency interference."].  So, why not just keep it as it is?

MR. PHILLIPS:  As we sit here today, literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt because of the difficulty of trying to resolve these issues.  So, to say that the system is working well, it seems to me, at least from the broadcasters' perspective, is to say — is to suggest that's just not true.

In response to a question from Justice Alito, Phillips indicated that his clients were only asking that the indecency standards be lifted for television broadcasts, not for radio.

Chief Justice Roberts returned to the subject of the "safe haven," stating that "there are 800 channels" where people can go for indecency, but only a few that the law subjected to decency standards.  Phillips responded that under the Constitution one speaker – one medium of communication – could not be treated differently than another.  Roberts said that if that's true "its not a legitimate objective to have a safe harbor."  Phillips noted that "there are on of cable networks that are aimed exclusively at children" and that "there are five, six, eight stations that, I guarantee you, you will see — where you'll see none of that [indecent] language."  Phillips also suggested that the United States could create a broadcast channel or network that would observe standards of decency.  In other words, Phillips was arguing that decency standards were not "necessary and that there were "less restrictive alternatives" to those kinds of laws.

Justice Alito asked what kind of programming viewers could expect to see on Fox if the decency standards were overturned.  Mr. Phillips responded that their advertisers and audiences would "insist on some measure of restraint."  Obviously doubtful of this response, Justice Breyer and Justice Alito asked Phillips that if Fox did not intend to broadcast indecency why it would even bother to challenge the decency standard.  At a later point Justice Kagan pointed out that she could detect a difference between the kinds of programs shown on basic cable and those shown on other channels, and other justices chimed in in agreement.

Attorney Seth Waxman began his argument for ABC by arguing that the FCC had been inconsistent in its application of its indecency standards by allowing the showing of Private Ryan but not the "Nude Awakening" episode of NYPD Blue.  Justice Breyer expressed his skepticism about whether it was so unreasonable to treat those programs differently, and asked Waxman why ABC didn't simply show the NYPD episode an hour later after 10:00 p.m., as the FCC would have allowed.

Waxman then made a tactical mistake:

MR. WAXMAN: I challenge the commission to identify a single decision of the commission issued before this was broadcast in 2003 ins which it had sanctioned [ed. - as in "punished] any display of nudity, and I'm going all the way back to 1978.

JUSTICE SCALIA: How many displays of nudity were there that went unsanctioned?

MR. WAXMAN: Well, for — I don't — I can't tell you, but I can tell you based on –

JUSTICE SCALIA:  Yes, well, I mean, if there are very few, it's not a very powerful argument.

Justice Breyer eventually observed that he had found a total of 17 incidents of nudity on broadcast television previous to this that had not been punished.  Chief Justice Roberts then stated: "That's what you've got over 85 years."

Waxman then moved the the most memorable part of this oral argument, when he pointed out to the Court the statutes in the courtroom with bare breasts and buttocks:

MR. WAXMAN: "Right over here, Justice Scalia.  (Laughter.)  Well, there's a bare buttock there, and there's a bare buttock here.  And there may be more that I hadn't seen.  But, frankly, I had never focused on it before.  But the point –

JUSTICE SCALIA:  Me neither.  (Laughter.)

Waxman contended that the FCC indecency rule was unconstitutionally vague, but he declined the invitation of the justices to propose an indecency standard that would be constitutional.  Instead, he listed four actions that the FCC might take:

1.  Revert to the "emphatically narrow enforcement regime" that it had followed before 2004;

2.  Convert the "multi-factor test" in which elements are identified into a more specific standard indicating how those factors should be balanced:

3.  Apply the factors consistently in a number of cases;

4.  Use more specific language in its decency guidelines.

Solicitor General Donald Verrilli returned to the podium in rebuttal, noting that in the 1980s shock jocks like Howard Stern and Bubba the Love Sponge were sponsored by advertisers, and that they had sparked a "race to the bottom."

Justice Kagan turned Verrilli's attention to the problem of vagueness and selective enforcement of the indecency standards:

JUSTICE KAGAN:  It's like nobody can use dirty words or nudity except for Steven Spielberg — (Laughter.)

Verrilli returned to the point he made at the beginning of oral argument that the incidents of indecency were extremely rare, and that therefore the problem of vagueness, though real, was not significant.  Delayed bleeping technology could be used for live programming to deal with recurring problems such as "fleeting expletives" on awards shows or "wardrobe malfunctions" at halftime.  Justice Scalia helpfully added, "Maybe … you shouldn't interview these people."

Chief Justice Roberts announced, "The case is submitted."

My impression is that the Solicitor General won this argument.  The justices were far more skeptical of his opponents than they were of him, and they seem poised to reaffirm Pacifica under the new rationale that regulation of indecency on broadcast television preserves a "safe haven" for parents and viewers.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Over the course of three days conservative commentator Rush Limbaugh repeatedly defamed Sandra Fluke, a third-year Georgetown law student, calling her a "slut" and a "prostitute."  If found guilty of slander or intentional infliction of emotional distress (IIED), Limbaugh would be liable to Ms. Fluke for millions of dollars in actual damages, and his potential liability for punitive damages would be astronomical.  Is Limbaugh liable to Fluke for defamation and IIED, or is he protected by the First Amendment?  Limbaugh's only defense would be to compare himself to pornographer Larry Flynt and the homophobic Westboro Baptist Church.

An article by the UK Daily Mail Online describes how this controversy arose.  The House Oversight Committee under the leadership of Rep. Darrell Issa called five male witnesses to testify about how the President's order requiring health insurance companies to cover contraception violates the religious liberty of employers.  Democrats were told that they could call one witness, and they chose to call Ms. Fluke.  The Committee refused to permit Ms. Fluke to testify on the ground that she was not an expert on religious liberty.  According to the Mail,

Ms Fluke later posted her testimony on YouTube. She spoke about a friend who had to take birth control to treat a disorder that caused ovarian cysts, and who subsequently lost her ovary, and of classmates who could not afford contraception.

Phillip Elliott of the Associated Press reports Mr. Limbaugh's response to Ms. Fluke's proffered testimony.  Limbaugh stated:

"What does it say about the college co-ed … who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex."

The following day Limbaugh said:

"If we're going to have to pay for this, then we want something in return, Ms. Fluke," Limbaugh said. "And that would be the videos of all this sex posted online so we can see what we're getting for our money."

After many Democrats and a few Republicans responded with outrage to Limbaugh's remarks and several advertisers deserted Mr. Limbaugh's program, he issued the following apology posted on his website:

For over 20 years, I have illustrated the absurd with absurdity, three hours a day, five days a week. In this instance, I chose the wrong words in my analogy of the situation. I did not mean a personal attack on Ms. Fluke.

I think it is absolutely absurd that during these very serious political times, we are discussing personal sexual recreational activities before members of Congress. I personally do not agree that American citizens should pay for these social activities. What happened to personal responsibility and accountability? Where do we draw the line? If this is accepted as the norm, what will follow? Will we be debating if taxpayers should pay for new sneakers for all students that are interested in running to keep fit? In my monologue, I posited that it is not our business whatsoever to know what is going on in anyone's bedroom nor do I think it is a topic that should reach a Presidential level.

My choice of words was not the best, and in the attempt to be humorous, I created a national stir. I sincerely apologize to Ms. Fluke for the insulting word choices.

There are several issues that must be considered in deciding whether an action for defamation or intentional infliction of emotional distress would lie against Mr. Limbaugh for his three-day diatribe against Ms. Fluke.  Did Limbaugh make statements of fact about Ms. Fluke or did he engage in hyperbole or parody?  If these were statements of fact that were not parody, were they false?  Were these statements made about Ms. Fluke personally or were they instead directed at other people or society generally?  What was Mr. Limbaugh's state of mind:  did he know that his remarks were untrue; did he utter them with careless disregard as their truth or falsity; or was he simply negligent in misstating the truth?  For purposes of this controversy, is Ms. Fluke a private figure or a public figure?  And were these statements about a matter of public concern or did they simply involve Ms. Fluke's private life?  Three of these factors are discussed below.

STATEMENT OF FACT OR PARODY?

No action for defamation may be brought unless it involves a statement that is "falsifiable;" it must be possible to prove that the statement is true or untrue.  Moreover, even a statement of fact is capable of being proven false, no action for defamation lies on behalf of a public figure if the statement may fairly be construed as "parody" not intended to be taken literally.

I think that it is clear that Mr. Limbaugh made statements of fact about Ms. Fluke that could be proven true or false. He specifically referred to her as a "slut" and a "prostitute," terms that have specific, well-known meanings. In fact, these terms are poster boys for words that would trigger "libel per se," the common law doctrine that allowed people to recover damages for defamation almost automatically.  Because of the Supreme Court's interpretation of the First Amendment, however, the doctrine of "libel per se" no longer applies in these types of situations, so it is necessary to continue the analysis.

Even though Limbaugh's remarks were falsifiable statements of fact, Limbaugh would contend that they were "parody;" that no-one could have seriously believed that he was accusing Ms. Fluke of promiscuity.  He would invoke the case of Hustler Magazine v. Falwell (1988), in which the Supreme Court in an opinion by Chief Justice Rehnquist ruled that the pornographer Larry Flynt could not be held liable for a fake advertisement that he published depicting Jerry Falwell admitting to having had sex with his mother in an outhouse.  The Court stated:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. …

Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated."  The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here.

When Mr. Limbaugh finally came to his senses and delivered what he considered be an apology to Ms. Fluke he characterized his statements as "absurdity" and "an attempt at humor."  In referring thus to his remarks he would appear to be raising the Hustler defense to both a cause of action for defamation and a lawsuit for intentional infliction of emotional distress.  The obvious difficulty with the Hustler defense in this instance is that while it was clear that Rev. Jerry Falwell was a public figure, it is not at all clear that Ms. Fluke is.  The "public figure/private figure" dichotomy is discussed below, but first I address whether this involved a matter of public concern or a matter of private concern.

PUBLIC CONCERN OR PRIVATE CONCERN?

In a lawsuit for defamation or IIED Limbaugh would defend on the ground that, like the Westboro Baptist Church, he was discussing a matter of public concern.  In the case of Snyder v. Phelps (2011), decided a year ago this month, the Supreme Court ruled that the Westboro Baptist Church was not liable to the Snyder family despite the fact that the church mounted a demonstration during their son's funeral.  The members of the church claimed that Marine Lance Corporal Matthew Snyder, who had been killed in Iraq in the line of duty, had actually died because God was punishing America for tolerating homosexuality.  They also were demonstrating against the Roman Catholic Church, to which the Snyders belong.

The Snyders were undeniably private figures, and yet the Supreme Court found the Westboro Baptist Church to be immune from liability because their statements were not directed personally at the Snyders and because their statements involved "matters of public concern."  Chief Justice John Roberts delivered the opinion for the majority.  Here is the key passage of his opinion:

The "content" of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of "purely private concern." The placards read "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Fag Troops," "Semper Fi Fags," "God Hates Fags," "Maryland Taliban," "Fags Doom Nations," "Not Blessed Just Cursed," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You're Going to Hell," and "God Hates You." While these messages may fall short of refined social or political commentary, the issues they highlight â�� the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy â�� are matters of public import. The signs certainly convey Westboro's position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs–such as "You're Going to Hell" and "God Hates You"–were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues.

Limbaugh's statements are every bit as vile as that of the Westboro Baptist Church.  He would, however, contend that "the overall thrust and dominant theme" of his remarks on this subject "spoke to broader public issues."  In this he would hope to be protected from liability for IIED to Ms. Fluke under the rule of Snyder v. Phelps.  One problem he would face in asserting this defense is that his comments were not responsive to Ms. Fluke's point that women face serious health consequences when contraception services are not made freely available.  Another difficulty Mr. Limbaugh would have is that his comments were directed far more specifically at Ms. Fluke personally than were the remarks of the Westboro church at the Snyder family.

PUBLIC FIGURE OR PRIVATE FIGURE?

Is Ms. Fluke a public figure or a private figure?  This could be argued either way.  Militating against finding Fluke to be a public figure is the fact that she does not hold public office nor does she exercise public power.  Prior to this controversy she was unknown to the public.  In support of finding that she is a public figure for purposes of this controversy is the fact that she was chosen to testify before the House Oversight Committee on the subject of the medical necessity for ready access to  access to contraception.

The leading case on this subject is Gertz v. Robert Welch, Inc. (1974).  In that case the John Birch Society defamed a Chicago attorney, Elmer Gertz, by calling Gertz a "Communist-fronter" and accusing him of being part of a conspiracy because he represented a family suing a Chicago policeman for murder. The key finding of the Supreme Court was that attorney Gertz was not a public figure.  Speaking for the Court, Justice Powell stated:

In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

Unlike Gertz, Ms. Fluke publicly expressed her opinion about access to birth control.  Neither, however, was she acting as an attorney in significant litigation.  Whether she is or is not a "public figure" within the meaning of the law of defamation is not clear.

If Ms. Fluke is a public figure then the standards of New York Times v. Sullivan (1964) would apply, and in order to recover for defamation she would have to prove by clear and convincing evidence that Mr. Limbaugh knew that the statements were false or that he acted with reckless disregard as to their truth or falsity.  Furthermore, she would be ineligible to recover punitive damages.

If on the other hand Ms. Fluke were found to be a private figure then this case would be governed by Gertz v. Welch and in order to recover for defamation she would only have to prove by a preponderance of the evidence that Limbaugh was negligent in making inaccurate statements about her.  Furthermore, she could recover punitive damages if she could prove that Limbaugh knew that the statements were false or that he uttered them without caring whether they were true or false.  Those punitive damages might amount to tens of millions of dollars.

CONCLUSION

If it were determined that Mr. Limbaugh made false statements of fact about Ms. Fluke that the average reasonable person would not know was parody, it would open the door to a suit for defamation.  If it were also determined that Ms. Fluke were a private figure she might also be able to sue for intentional infliction of emotional distress.  If in addition to those two findings it were determined that Mr. Limbaugh's statements  relate to a matter of private concern rather than a matter of public concern then it is almost certain that Mr. Limbaugh would be held liable to Ms. Fluke.

On the one hand, it is clear that Mr. Limbaugh's statements were made in the larger context of the dispute over public funding for preventive care for women's health.  On the other hand, instead of addressing those issues he chose instead to launch a personal attack on Ms. Fluke, and Mr. Limbaugh has a long history of vilifying individuals with whom he disagrees.

That is the weak point of Limbaugh's defense.  He never discusses policy.  He has no demonstrable expertise in science, economics, or public health.  On his program he does not interview leading figures in American life or rationally discuss the ramifications of suggested laws and public policies.  Instead, he engages in the politics of personal destruction, of which his outrageous treatment of Ms. Fluke is but one example.  He seeks not to engage people with whom he disagrees but simply to intimidate them.  In this case he thought he could make Ms. Fluke and other women cower with his bullying and his lies.  He thought that he could silence the opposition by shaming them with assertions of sexual immorality.  In this he is nearly identical to Larry Flynt and the Westboro Baptist Church.  But because his statements contained more plausible and specific factual assertions about Ms. Fluke and because Ms. Fluke might be a private figure it is not altogether clear that he would be able to claim the same legal protections that applied to Flynt and the Westboro group.

There will be no lawsuit.  The President of the United States responded to Mr. Limbaugh's demagoguery by calling Ms. Fluke and telling her that her parents should be proud of her.  I imagine that is sufficient compensation for the ordeal that Mr. Limbaugh put her through.

I am also confident that this issue will arise again.  Mr. Limbaugh will continue to engage in his detestable brand of "humor."  It is all he knows.

In a future post I will conduct a broader analysis of Mr. Limbaugh's political philosophy.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.  He is the author of "The Five Types of Legal Arguments" and "ObamaCare: Is It Necessary, What Will It Accomplish, Is It Constitutional."

I described the First Amendment issues that are at stake in this case in yesterday's post. Today's post summarizes what occurred during the government's presentation at oral argument in FCC v. Fox on January 10, 2012. The transcript of oral argument is available here.

Solicitor General Donald B. Verrilli argued this case on behalf of the FCC.  Attorneys Carter G. Phillips and Seth P. Waxman represented the Fox and ABC television networks respectively.  This post describes Verrilli's presentation.

General Verrilli commenced his argument by noting that when the government grants a broadcaster the right to exclusive use of a television broadcast frequency, the broadcaster must accept the fact that there will be conditions attached to that grant.  One such condition that Congress and the agency might impose, argued Verrilli, is "that they refrain from broadcasting indecent material when children are most likely to be in the audience."

Verrilli had no sooner made this point when Justice Kagan challenged him by asking how far the F.C.C. could go in regulating broadcasters:

But, General Verrilli, it seems to me that this contract notion of yours can only go so far. I mean, if the idea is just we gave them something, now they have to do whatever we say, you wouldn't accept that. So, the question is why is this condition appropriate when many other conditions would not be appropriate?

Verrilli responded that the F.C.C.'s indecency rule was appropriate because it was customary – the FCC had regulated broadcasters for indecency since the 1920s when the Radio Act was adopted.  Verrilli reminded the Court that even though television stations were mainly carried on cable, radio was still broadcast over the airwaves, and that "a lot of the most vile and lewd material really is in radio."  This was, in effect, a mitigation argument: whatever the Court decided to do about indecency on television, Verrilli wanted to ensure that the decency regulations should remain in full force as to radio.

Verrilli conceded that most television reception is through cable rather than over air, but he argued that "broadcast" television is even more pervasive now than it was when it was broadcast through the airwaves – that it enters more homes and is more accessible to children and unwilling listeners.  He characterized the broadcasters' argument as "very different" from the normal reason for overturning precedent, in the sense that Fox and ABC were contending that it made no sense to continue to regulate indecency on the broadcast channels since there were so many cable channels that could show whatever indecent material they chose at any time of the day.  [Huhn - I can't help comparing the broadcasters' argument to a teenager's lamentable appeal to fairness, "All the other kids get to ...."]  Verrilli says that this amounts to a claim that indecency regulations are now "futile."  Verrilli says that regulation of the broadcast channels is not futile because it provides a "safe haven" of decent programming for families on cable.

Justice Ginsburg turned Verrilli's attention to the principal problem with the decency regulations: the fact that  they are so hard to apply in a consistent manner.  Why, she asked, was this brief scene of nudity prohibited during daytime hours, while broadcasts of "Private Ran and "Schindler's List" were permitted?  It gives "the appearance of arbitrariness," she said.  Verrilli essentially admitted that there were difficult cases, but claimed that they were few in number – that only a vanishingly small proportion of scenes or episodes on television presented a hard case or fell into a gray area of enforcement.  Verrilli added that the only way to avoid problems of vagueness would be to draw bright lines outlawing the speaking of certain words or the showing of certain body parts no matter the context.  He defended the use of a guidelines on indecency that were "contextual" as better policy and as more consistent with existing precedent like Pacifica.  [Huhn - in its 2009 ruling in FCC v. Fox the Supreme Court noted with approval that Pacifica endorsed a context-based approach.]

Justice Kagan and Justice Ginsburg continued to press Verrilli on the issue of vagueness.  He responded that even though there were difficult cases scenes of nudity were "exceedingly, exceedingly rare" on broadcast television because of the indecency regulations.

Asked about whether there was a less restrictive alternative to decency regulations, General Verrilli was dismissive of V-chip technology:  "It's been around for more than a decade … It hasn't taken."

Justice Kennedy asked whether there was, at this point, a meaningful difference between "broadcast" and "cable" television channels, in light of the fact that they are all delivered to people's homes via cable.  Justices Kagan and Alito echoed this concern.  General Verrilli pointed out that federal law requires cable operators to carry the broadcast stations and to give them a preferred channel position, and that this distinguished broadcast stations from cable programmers.

Justice Scalia, as has become his custom, did not ask a question but simply expressed his opinion that the government could require broadcasters to observe "a certain modicum of decency," just as it could require "a certain modicum of dress for the people that attend this Court."

Members of the Court then began to observe that standards of decency were changing, and Verrilli agreed but noted that the question was whether broadcast television should be permitted to present nudity and bad language as appropriate.

Tomorrow's post will continue with the description of oral argument in FCC v. Fox.

The last time this case came before the Supreme Court in 2009 it was for â��fleeting expletivesâ�� uttered by Cher at the 2002 Billboard Music Awards broadcast by Fox and by Nicole Richie and Paris Hilton at the same event in 2003.  The Supreme Court decided that case not on constitutional grounds but rather under principles of administrative law.  This time the case comes before the Court because of a scene of nudity – a boy watching a woman entering the bath naked – and the constitutional issues are squarely before the Court.  ABC showed this scene on a program at 9:00 in the evening instead of waiting one more hour when it would have been allowed under F.C.C. guidelines.

An F.C.C. regulation prohibits a radio or television broadcast station from broadcasting "any material which is indecent" between the hours of 6:00 a.m. and 10:00 p.m.  On February 5, 2003, the ABC Television Network broadcast an episode of NYPD Blue entitled "Nude Awakening" at 9:00 in the evening – prime time, when it may charge more for advertising.  The title of the episode is a reference to the "sexual awakening" of a young boy who sees an adult woman living in his home enter a shower naked.  The scene lasted seven seconds.  Had the network chosen to broadcast the episode an hour later it would have been permitted.  As it was, the F.C.C. fined the 44  network affiliates that carried the episode the maximum penalty of $27,500 apiece, a total of $1.2 million.  The Second Circuit Court of Appeals reversed the agency's decision on the ground that the FCC guidelines are unconstitutionally vague.  The FCC appeals from this decision, contending that the guidelines are not vague and that the broadcaster did not have the right under the First Amendment to broadcast this scene at this time of the day.

The FCC guidelines defining "indecency" were revised in 2001.  The guidelines currently provide that a broadcaster is not permitted to �describe or depict sexual or excretory organs or activities� in a manner that is �patently offensive as measured by contemporary community standards.�  A broadcast will be considered to be �patently offensive� based on three factors:  (1) �the explicitness or graphic nature of the description or depiction�; (2) �whether the material dwells on or repeats at length� the description or depiction; and (3) �whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.�

The principal case governing this subject is F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978), in which the Court upheld the power of the F.C.C. to prohibit a radio station from broadcasting George Carlin�s �Seven Dirty Words� monologue during daytime hours.  The Court articulated two principal reasons in support of its ruling.  First, broadcast frequencies are a scarce resource that are of necessity licensed by the government to broadcasters for their exclusive use, and that therefore the government is justified in regulating that use in the public interest.  Second, radio and television broadcast signals are pervasive and intrusive; the signals are broadcast into our homes and automobiles, and it is therefore appropriate to protect children and other unwilling listeners from exposure to indecent programming.  Accordingly, ruled the Court, the F.C.C. could constitutionally prohibit "indecent" broadcasts during daytime hours.

One of the problems in this case is that the communications industry has undergone a tremendous shift in the three decades since Pacifica was decided.  Today only 10% of American households receive television signals over the air; most of the rest receive television signals via cable.  Furthermore, government regulations confer significant advantages on the television broadcast media to keep them in business.  Federal law provides that cable operators �must carry� broadcast television programmers and give them preferred positions in the assignment of cable channels.

The broadcaster contends that the scarcity of television broadcast frequencies is no longer an important factor and should not warrant government regulation of content.  The F.C.C. responds that radio is still pervasive and intrusive and that it is important to preserve the broadcast channels on cable as an island of decency during the daytime on cable television.

Tomorrow: a summary of oral argument in this case.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Yesterday the Supreme Court issued a decision in Kurns v.  Railroad Friction Products Corp.  This is yet another judicial decision ruling that a piece of federal regulatory legislation should be interpreted to preempt state common law tort claims.  A disturbing element in this case is the willingness of the Court to give precedential effect to a case that was decided in 1926 at the height of the Court's opposition to progressive legislation protecting workers.

The facts of Kurns were that George Corson, a welder and machinist for a railroad, developed mesothelioma from exposure to asbestos.  His widow sued the manufacturer of some of the machinery for defective design of the equipment and negligent failure to warn of the risks of exposure to asbestos.

In 1915 Congress enacted the Locomotive Inspection Act (LIA), which prohibited railroads from using any equipment that had not be inspected and approved by federal inspectors.  Eleven years later in Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926), the United States Supreme Court considered the constitutionality of two state statutes that required railroads to use particular kinds of safety equipment.  The Court in Napier ruled that the state laws were unconstitutional because the LIA so "occupied the field" as to leave no room for state regulation of locomotive equipment.  This represents a straightforward application of the doctrine of "field preemption."

In Kurns in an opinion by Justice Thomas a majority of the Supreme Court invoked Napier for the proposition that state common law claims associated with the safety of railroad equipment are preempted as well, just like state regulatory statutes.  This follows recent decisions like Altria Group v. Good (2008), Riegel v. Medtronic (2008), and Pliva, Inc. v. Messing (2011) finding that federal statutes preempted state common law tort claims without any evidence from the legislative history that Congress intended such a result.

In dissent in Kurns, Justice Sotomayor contended that state common law claims for negligent failure to warn could be distinguished from claims for defective design.  She would have found that while the LIA preempts lawsuits based upon the allegation that the equipment itself was negligently designed, the federal law should not be interpreted as preempting a claim based upon the manufacturer's failure to warn people about the dangers inherent to its operation.  Only two other justices agreed with her.

Justice Kagan's concurring opinion is what really grabbed my attention.  She agrees with the majority that under Napier the plaintiff's common law tort claims are preempted.  However, she thinks that Napier was wrongly decided – that the Supreme Court would not come to the same conclusion today that the LIA "so occupies the field" as to preempt any state regulation of the safety of locomotive equipment.  Nevertheless, she voted with the majority because at this point it was up to Congress to amend the statute if they did not agree with the Court's interpretation of it.  Here is the relevant portion of Kagan's opinion:

I doubt this Court would decide Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926), in the same way today. The Napier Court concluded that Congress had �manifest[ed] the intention to occupythe entire field of regulating locomotive equipment,� based on nothing more than a statute granting regulatory authority over that subject matter to a federal agency. Id., at 611. Under our more recent cases, Congress must do much more to oust all of state law from a field. See, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973) (rejecting preemption even though Congress had enacted a �detailed� and �comprehensive� regulatory scheme). Viewed through the lens of modern preemption law, Napier is an anachronism.  But Napier governs so long as Congress lets it�and that decision provides a straightforward way to determine whether state laws relating to locomotive equipment are preempted.

I think Justice Kagan is entirely right in saying that Napier was entirely wrong.  The brief and summary Locomotive Inspection Act is hardly the type of overarching scheme of regulation that one associates with "field preemption."  Until Congress enacts a detailed and comprehensive program that seeks to guarantee the safety of railroad equipment, the states should absolutely be considered free to enact laws and acknowledge legal rights that protect railroad workers from defective equipment.  So why not overrule Napier?

Why is the doctrine of stare decisis so strong in this case to the extent that the plaintiff didn't even ask the Court to overturn Napier?  After all, the Supreme Court overrules precedent all the time: Barnette overruled Gobitis, Brown overruled Plessy, Lawrence overruled Bowers, and Citizens United overruled McConnell.  Why shouldn't the Court overrule a decision as clearly erroneous as Napier?

The answer is that in Napier the Supreme Court was supposedly interpreting a statute, not the Constitution.  The Napier Court found that a federal statute, the LIA, should be interpreted to mean that Congress did not want the states to have any authority to enact laws regulating the safety of railroad equipment.  Accordingly, Kurns involved a question of statutory stare decisis, not constitutional stare decisis.  And statutory stare decisis is stronger – far stronger – than constitutional stare decisis.

That seems anomalous, does it not?  One's initial reaction would be that an authoritative court interpretation of the Constitution should be worthy of more respect than an authoritative judicial interpretation of a mere statute.  But the reverse if true.  Once the courts have interpreted a statute, they are loathe to return to the subject.  Even where the courts make egregious errors misconstruing the language or intent of a legislative enactment, they are far more likely to follow their previous decisions rather than to correct the errors.  As Justice Sotomayor concedes in her dissent:

Napier�s construction of the LIA has been settled law for 85 years, and ��[c]onsiderations of stare decisis have special force in the area of statutory interpretation.�� Hilton v. South Carolina Public Railways Comm�n, 502 U. S. 197, 202 (1991).

Why is this?  Why should the principle of stare decisis be so much more powerful in the case of statutes than the Constitution?  A few reasons have been suggested.  The first deals with the intent of the legislature and the relative ease of amending statutes. Legislatures are is surely aware of court decisions interpreting their statutes, and if they disagree with a court's decision the remedy is obvious; repeal or amend the statute.  Constitutions are not so easily amended.  The second reason for according more respect to court decisions interpreting statutes is more subtle.  Individual reliance interests are more likely to be predicated on consistency of statutory interpretation rather than consistency of constitutional interpretation.  In the case at hand, for example, equipment manufacturers, employers, workers, and public and private insurers all adjusted their conduct, their contracts, and their investments based upon the Court's initial adjudication in Napier that the Locomotive Inspection Act bars state law regulation of railroad equipment.  In contrast, in constitutional cases there is little individual reliance and almost never any financial reliance on continuity in the law.  What is at stake in constitutional cases – for example, whether black children may attend schools with whites or whether women have the right to attend V.M.I. with men – certainly affects people's lives in important ways but does so on a societal level, not an individual level.  As noted in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court should be leery of suddenly withdrawing a constitutional right upon which millions of people have come to depend, but overruling prior interpretations of the Constitution does not usually cause the same kind of specific financial hardship and disruption that, for example, changing the interpretation of a tax statute would.

However, was this really a case involving statutory stare decisis?  Does the use of  Napier in this case represent statutory stare decisis or constitutional stare decisis?  I would argue that it was not so much the interpretation of the LIA that was at stake in Napier as it was the interpretation of the Supremacy Clause of the Constitution.  It is the constitutional effect of the LIA on state law that made the difference in that case.  The constitutional effect could have been reexamined in Kurns.

Furthermore, there is the fact that Napier was handed down during an era when the Supreme Court was utilizing all of the tools at its disposal – the Commerce Clause, the General Welfare Clause, the Due Process Clauses – to strike down laws protecting workers from abuse and exploitation.  See Lochner v. New York (1905) (striking down maximum hour legislation under 14th Amendment Due Process); Coppage v. Kansas (1915) (striking down legislation protecting the right to join a union under 14th Amendment Due Process); Hammer v. Dagenhart (1918) (striking down federal law prohibiting shipment of goods made with child labor under Commerce Clause); the Child Labor Tax Case (1922) (striking down federal law taxing goods made with child labor under the General Welfare Clause); and Adkins v. Children's Hospital (1923) (striking down law setting minimum wage for women and children under 5th Amendment Due Process).  Napier v. Atlantic Coast Line R. Co. (1926) is but another example of the Supreme Court from this period of the Supreme Court using any constitutional means available to trample on the rights of workers.

It is distressing enough that the Supreme Court continues to regard itself as the guardian of constitutionally-imposed "tort reform," employing the doctrine of preemption to prohibit lawsuits that Congress had no intention of barring.  In Kurns that unfortunate tendency is compounded by the fact that the Court chose to follow precedent from the Lochner era reflecting the economic bias of laissez faire.

Wilson Huhn teaches constitutional law at The University of Akron School of Law.

Over the next couple of months I will be reviewing the briefs filed in the health care case pending before the Supreme Court of the United States.  Today's entry concerns a reply brief filed by Solicitor General Donald Verrilli regarding a jurisdictional issue arising under the federal Anti-Injunction Act.

Yesterday I received in the mail a reply brief from the Solicitor General on the issue whether the Court should dismiss the case for lack of jurisdiction under the Anti-Injunction Act.  It does something I thought was not possible.  It makes a persuasive argument for the proposition that the Anti-Injuction Act does not apply to the penalty provision of the Affordable Care Act.  The brief walks a fine line, though, because the federal government does not wish to weaken the Anti-Injunction Act.  Accordingly, the SG's brief also rebuts a number of arguments proposed by the respondents that would have the effect of gutting the Anti-Injunction Act.

Beginning January 1, 2014, the Affordable Care Act imposes a penalty on any person who does not have health insurance coverage.  The penalty is collected with the income tax, and amounts to 2.5% of income up to a maximum of $675 per person.

The General Welfare Clause of the Constitution gives Congress the power to enact taxes, duties, and excises.  The federal government quite naturally contends that the enforcement mechanism of the Affordable Care Act constitutes a "tax" for purposes of the General Welfare Clause.  In other words, when Congress enacted the individual mandate it was exercising the "power of the purse."

The problem with this case is that the federal Anti-Injunction Act prohibits any person from challenging the constitutionality of tax legislation until the tax is assessed.  The "penalty" associated with the Affordable Care Act will not be assessed until April 15, 2015.  Accordingly, if this law constitutes a "tax" under the Anti-Injunction Act the courts should wait until then to decide the case.

The SG's brief presents a seeming contradiction: that the penalty associated with the individual mandate is a "tax" within the meaning of the General Welfare Clause of the Constitution, but that it is not a tax for puposes of the Anti-Injunction Act.  How is this miracle achieved?

Verrilli contends that as a matter of statutory construction neither the Affordable Care Act nor the Anti-Injunction Act were intended to prevent the courts from determining the constitutionality of the individual mandate.  He notes that the Affordable Care Act was amended to call the enforcement mechanism a "penalty" rather than a tax.  He observes that the law instructs to collect the penalty "in the same manner" as taxes, but is careful not to call it a tax.  Most significantly, the Affordable Care Act does not provide that the   "penalty" is protected from pre-enforcement challenge under the Anti-Injunction Act, as other laws do.  Therefore, purely as a matter of statutory construction, this penalty which is a "tax" for purposes of the Constitution is not a "tax" for purposes of the Anti-Injunction Act.

This argument makes sense because Congress probably wanted the courts to determine the constitutionality of this law before it goes into effect.  No-one – not the government, not the states, not the individual plaintiffs – wants to wait until 2015 to find out whether this law is constitutional.  The Affordable Care Act creates dozens of offices and bureaus within the federal government as well as 50 state "exchanges" for the sale of health insurance.  Hundreds of billions of dollars are at stake.  It makes sense to hear the case now.  It is appropriate to assume that this was Congress' intent.

The rest of the government's brief is devoted to rebutting the arguments of the parties challenging the constitutionality of the Affordable Care Act that would weaken the Anti-Injunction Act.  The various states and individuals who brought this lawsuit contend that since both they and the government think that the Anti-Injunction Act does not apply, the courts are free to overlook the Act and hear the case.  In rebuttal, Verrilli cites cases for the proposition that the Anti-Injunction Act may not be waived by the parties; that it is in fact a jurisdictional provision abolishing the power of the courts to hear pre-enforcement challenges to tax laws, and not simply a law that restricts taxpayers from filing those challenges.

The Solicitor General also rejects the respondents' contention that they are only challenging the portion of the Affordable Care Act that imposes the individual mandate and are not challenging the penalty provision.  The SG correctly notes that the individual mandate is not a criminal law; there is no other enforcement mechanism other than the "tax penalty" in question.  And, in any event, the SG notes that the respondents' own complaint that started this case expressly challenged the constitutionality of the penalty imposed by the Affordable Care for failure to maintain insurance coverage.

In the final portion of his reply brief the SG restates its position that the states lack standing to challenge the individual mandate, so their arguments regarding the applicability of the Anti-Injunction Act are irrelevant.

All in all, it's a great brief.  If, however, the Supreme Court disagrees with the parties and finds that the Anti-Injunction Act applies to this case, it will dismiss the case for lack of jurisdiction, and the parties will have to refile in 2015.

Wilson Huhn is the author of "ObamaCare: Is It Necessary, What Will It Accomplish, Is It Constitutional" available from Amazon for Kindle or Kindle for PC.  He also submitted a brief to the Supreme Court for a committee of professors regarding the constitutionality of the individual mandate provision of the Affordable Care Act.