By James Bowden
On June 28, 2012, the last day of the U.S. Supreme Court’s 2011 term, saw a surprising and important decision handed down in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., the challenge to the Affordable Care Act (the “ACA”). While most of the news media was focused on the decision in the ACA challenge, the Supreme Court also issued an opinion in U.S. v. Alvarez on the same day overturning the Stolen Valor Act of 2005 in a decision likely to become a key piece of the Court’s First Amendment jurisprudence.
I’m not going to attempt to provide incisive legal commentary on the ACA opinion - there is plenty of good commentary available with far more insight than I can muster, and frequent readers know that “incisive legal commentary” isn’t really what I do. I will go ahead and say that my predictions on the outcome of the ACA challenge were wrong. Being wrong in my predictions puts me in good company, however - the decision surprised most court watchers. In an opinion authored by Chief Justice John Roberts, the Chief Justice joined what is commonly understood to be the more liberal members of the Court in upholding the majority of the ACA. The individual mandate, a key provision of the ACA which was the primary lightning rod for conservative criticism, was held constitutional under the federal government’s power to tax but not under the Constitution’s Commerce Clause. Interestingly, in evaluating the applicability of the Anti-Injunction Act heard in oral arguments, the Court held that the penalty for not purchasing insurance was not a “tax” for purposes of the Anti-Injunction Act; curious, considering the foothold found for the constitutionality of the individual mandate was held to be that the penalty was a permissible application of Congress’s power to tax. The portion of the opinion that most surprised me was the holding that the Medicaid expansion, which required states to abide by the increase in eligibility under Medicaid or lose all Medicaid funding, was unconstitutional as excessively coercive. A former professor of mine at Vanderbilt University Law School must be quite pleased with this holding - James Blumstein’s students should expect the subject matter to come up on future Constitutional Law II exams.
The opinion is really worth a read, even if it is a bit long, mostly because of the intended audience both the opinion and the dissent are clearly written for. Unlike many Supreme Court opinions, which focus on obscure and esoteric areas of law, the ACA opinion is written for consumption by the most novice of court watchers. The introduction to Chief Justice Robert’s opinion (and the corresponding dissent) cite opinions that first year law students (and even high school students taking classes on American Government) would be familiar: Marbury v. Madison, Gibbons v. Ogden and Wickard v. Filburn are all discussed. Waller’s very own Judge Alberto Gonzales was interviewed on America Live with Megyn Kelly, Morning Joe, and Anderson Cooper 360 regarding the opinion. Judge Gonzales was involved with vetting John Roberts when he was appointed to his current position by President Bush. Note to whoever does CNN’s webpage addresses - it is “Gonzales” with an “s.”
I’m a bit disappointed that the ACA ruling took the spotlight away from the decision in the Alvarez case. The respondent, Xavier Alvarez, kicked off his first meeting as a member of the Three Valley Water District in Claremont, California by telling the assembly that “Back in 1987, I was awarded the Congressional Medal of Honor.” It seems that Mr. Alvarez is quite the fabulist, and the statement that he had won the Congressional Medal of Honor, much like many of his other life stories (including that he had played for the Detroit Red Wings) was a lie. Unfortunately for Mr. Alvarez, under the Stolen Valor Act of 2005, lying about earning a Congressional Medal of Honor carries a penalty of not more than one year in prison.
In holding the Stolen Valor Act unconstitutional, the Court provides a significant advancement of the Court’s First Amendment jurisprudence. The opinion distinguishes simple lies from statements that are not protected by the First Amendment, including fraud, “fighting words,” inciting violence, and defamation. There are a good number of quotes from this opinion worth remembering; the majority opinion even gives a nod to George Orwell:
“Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principal. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”
This is the core of the Alvarez opinion: that allowing the government to punish statements simply for the fact that they are false gives the government the power to determine what is true. It is also an excellent opinion for readers in an era, as mentioned above, in which Supreme Court opinions are too often inaccessible to most readers. Justice William O. Douglas would be proud. I think it is worth noting that the dissent filed in the case was written by Justice Alito, which is in keeping with his more restrictive views on the protections afforded by the First Amendment. Here are two more great quotes from the opinion in parting:
“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”
and
“The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”