« Second Circuit panel now affirms Lynne Stewart's (way below guideline) 10-year prison sentence | Main | NC Gov Perdue again vetoes effort by legislature to reform state's Racial Justice Act »

June 28, 2012

The cites to and echoes of Booker in today's SCOTUS health care ruling

In the comments to this prior post, DEJ makes this observation: "After holding the Medicaid expansion unconstitutional, the Court had to decide the remedy for violating the Spending Clause: Must the entire expansion fall or does it remain in some form?   And how, exactly, did the plurality come to its remedy? By looking to the Booker remedy opinion: "In considering that question, '[w]e seek to determine what Congress would have intended in light of the Court’s constitutional holding.' United States v. Booker, 543 U. S. 220, 246 (2005)."   Booker is twice cited by the plurality to support its remedy."

In addition, a thoughtful law grad from my alma mater, Rajiv Mohan, sent me this e-mail to not "how similar [the ACA ruling] is to Booker":

In both cases, legislative innovations -- if not limited -- threatened deeply-held constitutional principles: the right to trial by jury on the one hand, and enumerated powers on the other.

In both cases, the proposed limiting principle is oddly formalistic and susceptible to legislative circumvention. The Apprendi principle, after all, could be circumvented by advisory guidelines that give no role to the jury. And even with a ban on mandates under the Commerce Clause, Congress could achieve the same effect through the tax power.

And in both cases, a majority of the Court accepts the limiting principle, only for one Justice to back away from its seemingly natural consequences by pragmatically imputing to Congress a will to do what it no doubt could have done, in the face of considerable doubt that it actually did.

In a similar vein, public defender David Hemmingway sent me an e-mail to report his "whimsical notion" that the Booker remedy played a role in the ACA litigation outcome, which includes these observation:

This morning as SCOTUSblog was reporting that the individual mandate survived at the very same time that CNN & Fox loudly proclaimed that the Court had struck it down, [a lawyer in] our office recalled that overcast January day in 2005 when the Court issued Booker: everyone was reading it and scratching their head. In the ensuing seven years, CJ Roberts along with Justices Sotomayor and finally Justice Kagan have embraced it (as confirmed by last week's decision in Southern Union that the Apprendi right to jury fact finding also applies to criminal fines).

So maybe seven years of life with the Booker remedy -- which still stands in tension with both the Sixth Amendment violation that prompted it and the Congressional intent to reduce judicial discretion under the Sentencing Reform Act -- helped make it possible or easier for Roberts to join two conflicting majorities and uphold the ACA. At this time, on this planet, there are times when the best one can hope for requires that we live in a contradiction.

June 28, 2012 at 03:27 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The cites to and echoes of Booker in today's SCOTUS health care ruling:


Years afterward, Justice Breyer’s Booker remedy still seems like a stretch. I am not at all convinced that Congress would have created the Guidelines, if it had known they couldn’t be mandatory. The whole point of the SRA was to cabin judicial discretion. I find it hard to believe that Congress would have created a Sentencing Commission whose pronouncements were merely advice that the judge could disregard. It remains notable that only Justice Ginsburg joined both Booker opinions. To the rest of the Court, those two positions were irreconcilable. The Breyer opinion rather dramatically changes the sentencing regime from what Congress thought it was enacting.

The Chief Justice's severability opinion on Health Care strikes me as a lot more modest. In particular, it doesn’t alter the proposed system it all; it just says that states that opt out of the Medicaid expansion cannot be penalized for doing so.

Posted by: Marc Shepherd | Jun 28, 2012 4:10:02 PM

I'm sorry but I'm not seeing the tension and contradiction other people claim to be seeing. In particular, Rajiv Mohan comments seems misplaced. Those comments only make sense if one engages in outcome bias. The fact is that that way in which Congress goes about it's business is just as important if not more important than the business it goes about. So there is no tension in saying, in effect, "yes that can be done but just not like that."

Posted by: Daniel | Jun 28, 2012 5:07:41 PM

In the opinion SCOTUS says federal government's power to terminate states' Medicaid funds is narrowly read... Can this ruling be applied to states not receiving funding for existing crime reduction programs because they do not pass the AWA?

Posted by: bigFed | Jun 28, 2012 8:38:42 PM

Woah! Jag njuter verkligen av mallen / tema på denna webbplats. Det är enkelt, men effektivt. Många gånger är det svårt att få den "perfekt balans" mellan superb användarvänlighet och utseende. Jag måste säga att du har gjort ett fantastiskt jobb med detta. Dessutom laddar bloggen extremt snabb för mig på Internet Explorer. Exceptionell Blog!

Posted by: air max en france | Jun 29, 2012 5:33:20 AM

In regards to AWA see:

Posted by: bigFed | Jun 29, 2012 8:39:57 AM

The colors are so gorgeous Sandy! I am sure your quilt will be perfectly lovely! Wishing you a wonderful week! Angie xo

Posted by: Nike Brand Shoes | Aug 6, 2012 5:35:51 AM

Des remarques justes. En fait, un blog est toujours entre la vie et la mort: il faut en permanence le réanimer.

Posted by: Adidas Original Shoes | Sep 4, 2012 10:22:26 PM

Terima kasih kerana membuat percubaan yang boleh dipercayai untuk memberi penjelasan untuk ini. Saya berasa sangat kukuh kira-kira dan mahu diberitahu lebih. Jika ia adalah OK, sebagai anda mencapai kebijaksanaan intensif tambahan, boleh anda pemikiran menambah jawatan tambahan yang sangat serupa dengan yang satu ini dengan maklumat lanjut? Ia boleh menjadi luar biasa membantu dan berguna untuk saya dan rakan-rakan saya.

Posted by: vente sac louis vuitton | Oct 15, 2012 5:27:05 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB