Obamacare, Arizona Immigration, and the 5 SCOTUS Cases That Will Change the 2012 Election


With the general election kicking into high gear, some may have forgotten the relatively active session that the Supreme Court has been having this year. There are a number of blockbuster cases set to have opinions issued prior to Election Day, with several likely to become the central focus of campaign speeches and SuperPAC ads. Below is a quick summary and prediction for the five biggest cases awaiting that the Supreme Court is likely to rule on this summer. These decisions are expected by the end of June, although the Court has no binding publication schedule and may push certain opinions back as necessary.

1. Florida v. Department of Health and Human Services & National Federation of Independent Businesses v. Sebelius - Affordable Care Act

Of all the Supreme Court’s cases, none are as monumental as the legal fight surrounding the Affordable Care Act. President Obama’s landmark healthcare reform bill has been challenged by 27 states in what is sure to be heralded as a case for the history books. The questions before the Court are multiple and nuanced (read more about them here) but the big question on the public’s mind is whether the “individual mandate,” a portion of the law requiring Americans to purchase private health insurance or pay a fine, is constitutional. Secondary questions before the Court are whether the individual mandate determines the constitutionality of the entire law, whether the entire question is barred by the Tax Anti-Injunction Act to begin with, and whether the expansion of Medicaid coverage violates states’ rights.

The Court will probably rule for: Unclear. Although the Court seemed to agree that the Tax Anti Injunction Act didn’t bar the question, the Justices appeared to mirror the American public in being divided over the constitutionality of the ACA’s most controversial areas, the individual mandate and its severability from the rest of the law. Conservative and liberal lines were drawn fairly quickly among the Justices during oral arguments, with perennial swing voter Justice Anthony Kennedy once again sitting in the middle. The Court seemed equally split on the question of severability, although many guessed that if the scales were leaning in a particular direction, it would be in favor of severing the mandate and leaving the rest of the law intact. The question of Medicaid expansion will likely come back with unanimous approval of its constitutionality. As to the fundamental constitutionality of the mandate, we can expect a heavily fractured Court and an equally fractured public reaction whatever the outcome.

2. United States v. Arizona – Immigration

As the party names imply, this is the case focused on the legal controversy surrounding Arizona’s immigration law, best known as SB1070. Although the case involves topics that are extremely divisive politically, the legal question is somewhat dry. The question before the Court is whether Arizona’s immigration law is pre-empted by federal immigration law. Pre-emption doctrine states that under the Supremacy Clause of the Constitution, “state laws that conflict with federal law are without effect.” The Department of Justice asserts that federal immigration law precludes Arizona from creating conflict laws in the area. Arizona argues that its laws are merely state-side implementation of the federal law and do not conflict with federal policy. Justice Kagan is recused.

The Court will probably rule for: The United States. While the decision may be closer than some would guess, the question concerning preemption is reasonably straightforward. States simply don’t have the right to step on Congress’ toes where Congress has declared the area governed by exclusively federal rules. The real important language and nuance will come from how the Court deals with the question of what powers the states may have when the federal government fails to act in areas that Congress has deemed exclusively federal, such as immigration.

3. FCC v. Fox – Indecency and the First Amendment

Arising out of 2002-2003 episodes of “NYPD Blue,” FCC v. Fox asks the question of whether the FCC’s prohibition on “indecency” is too vague to be constitutional under the First Amendment. The First Amendment’s free speech protection requires that rules curtailing protected speech be narrowly tailored, with an express prohibition against rules that are so vague that nobody would understand how to properly follow them. The Second Circuit ruled the FCC’s prohibition on indecency were too vague to survive constitutional scrutiny and this appeal to the Supreme Court followed shortly thereafter. This is the first Supreme Court case to address the FCC’s indecency policy since the famous 1978 case concerning George Carlin’s “Seven Dirty Words” skit, FCC v. Pacifica Foundation, in which the Supreme Court decided the government had power to restrict public broadcast of indecent material by a 5-4 vote. Justice Sotomayor is recused.

The Court will probably rule for: Unclear. While standards have certainly evolved since the 1978 ruling, it seems unlikely that the Court will go so far as to say that the government cannot implement reasonable and clear regulations on individuals with access to public airwaves. Most likely, if the FCC’s indecency policy does get struck down, the order from the Court will be simply for them to re-write in way that is clearer about what exactly is prohibited on public broadcasts.

4. Miller v. Alabama & Jackson v. Hobbs – Life Sentences for Juveniles

The joint cases of Miller and Jackson concern juveniles who were convicted of murder and sentenced to life without the opportunity for parole. The challengers to both convictions assert that life sentences without parole for juveniles violate the Eight Amendment’s prohibition on “cruel and unusual punishment.” In Miller, the defendant got into a drunken fight with a friend, killing him and then attempting to burn down the trailer where the body was located. The defendant in Jackson was part of a three-person group that robbed a store, resulting in the death of the clerk. Although the defendant did not pull the trigger, the felony-murder rule resulted in a life-without-parole sentence. The lawyers for the defendants argued that of the roughly 3,600 convictions of youth under 14 years of age since 1990, only 58 of them had received life-without-parole sentences, making the punishment unusual and unconstitutionally cruel.

The Court will probably rule for: The defendants. The Court has trended away from harsh punishments for youth. In 2005, the Justices outlawed the execution of minors convicted of murder. In 2010, the Justices further prohibited life-without-parole sentences for youths convicted of non-homicide crimes. Therefore, there is a good chance that the Court will extend this legal path and declare life-without-parole sentences for minors in homicide cases equally unconstitutional.

5. United States v. Alvarez – Free Speech and the Stolen Valor Act

The Stolen Valor Act was a law passed by Congress in 2005 which made it a crime to make “false claims” about one’s military service. In other words, it made it a crime to impersonate a soldier or other service-member. The case focuses on Xavier Alvarez, a former member of a local government board, who was charged with violating the act after he introduced himself at a meeting as “a retired Marine of 25 years” who, “back in 1987, was awarded the Congressional Medal of Honor” for alleged wounds suffered in combat. Both assertions were false, Alvarez had never served a day in his life, and he was subsequently charged under the Stolen Valor Act. The Ninth Circuit struck down the act as unconstitutional. The question before the Supreme Court is whether such an absolute prohibition against impersonation of military service-members runs afoul of the First Amendment.

The Court will probably rule for: Alvarez. As I wrote before, the law is simply too broad to survive review. Because the law requires no bad intent or malice behind the action, as written it criminalizes everything from an actor playing a soldier on TV to a child wearing their parents “Purple Heart Veteran” t-shirt. The Court will likely strike down the law, declaring it overly broad, but leaving open the idea that Congress can re-enact the law with a malicious intent requirement that would likely survive legal review.