Preliminary thoughts on today’s decision splitting the proverbial baby

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7 Responses

  1. The Court has staedfastly approved arbitration clauses in recent years under the banner of freedom of contract. Does today’s decision sugeest that states are less able to protect themselves than Apple cutomers? If so, why. (See Herbert Wechsler long ago on the abilty of states yto protect themselves from fed oppression.)

  2. Brett Bellmore says:

    Of course, the real coercion in these cases is the fact that the federal government extracts tax revenue from a state, and if thwarted, does not in any way return it to the state economy. Rendering the state incapable of funding it’s own activities without becoming economically disadvantaged relative to states whose federal taxes are in some way returned.

    So, coercion is ok, just not super-duper coercion…

  3. Mike Zimmer says:

    There is a lot of talk about this being a split decision. No Justice joined the opinion of CJ Roberts on the Commerce Clause issue. J Scalia,Kennedy, Thomas & Alito do not join the chief’s opinion at all,at least if you read the posting the result on the official docket of the Supreme Court:

    Adjudged to be AFFIRMED IN PART, REVERSED IN PART. Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-C., in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined; an opinion with respect to Part IV, in which Breyer and Kagan, JJ., joined; and an opinion with respect to Parts III-A, III-B, and III-D. Ginsburg, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to Parts I, II, III, and IV. Scalia, Kennedy, Thomas, and Alito, JJ., filed a dissenting opinion. Thomas, J, filed a dissenting opinion.

  4. Joe says:

    Yes, Congress has the power to tax and do other things that “extracts tax revenue from a state.” They also can “coerce” individuals to do various things like jury duty.

    True enough that only “super duper” coercion is not allowed.

  5. Ken Rhodes says:

    Jury duty????

    Geez, they can coerce a citizen to leave his family and put on ugly clothes and go halfway around the world to shoot at somebody he never met, and maybe get his butt killed in a jungle he can’t pronounce.

    That sounds like “super duper coercion” to me. Did somebody in the real world think the government had no power to coerce?

  6. Nicole Huberfeld says:

    Mike, my point was simply that the CJ split the handful of constitutional issues in such a way as to find majorities in contentious circumstances. But, to be a bit Machiavellian, I think Roberts addressed the CC issue as a way to encourage litigation seeking to limit by virtue of the inactivity/activity (or some other formalistic) distinction.

  7. Vickie Williams says:

    Nicole – Congrats on getting a cite into the Supreme Court decision. I think that this opinion will open up all kinds of questions about the future of Medicaid and cooperative federalism. The reason that Medicaid was written to permit the HHS Secretary to pull all Medicaid funds for failure to include certain mandatory populations is because of the fear that the state would fail to cover, or cover inappropriately, certain disfavored populations (like mentally disabled, for instance), and there would be no real consequence. But if you will lose your funding for favored populations (like children), then you will make sure you are administering the program correctly for all. I think this increases the vulnerability of the most vulnerable people in our society, especially during difficult economic times.