Update On Supreme Court's Health Care Decision

The U.S. Supreme Court June 28 sustained the Affordable Care Act's (ACA) controversial individual mandate as a permissible tax under the Constitution. Chief Justice John Roberts, a Republican, joined four Democrats in that ruling.

"The bottom line," blogged SCOTUSblog founder and legal expert Tom Goldstein at 10:13 a.m., "the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." A link to the court's decision is here.

"Our precedent," the majority wrote, "demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it." SCOTUSblog reporter Amy Howe described that language moments later as the gist of the decision. On a lighter note, CNN and Fox each reported the decision wrongly in their mad scramble to be first with the news. 

The decision is both political and legal, especially given rhetoric from decisions earlier in the week that prompted the Washington Post, among others, to issue an editorial rebuking Justice Antonin Scalia for excessively political rhetoric on an immigration law decision. The Roberts decision to become the swing vote with Democrats should be debated both on its legal grounds and as a political choice that preserved some of the court's stature by preventing a straight 5-4 Republican-Democratic division striking down the law.

John Roberts"Chief Justice John Roberts was the surprising swing vote in today’s Obamacare decision," wrote SCOTUSblog guest columnist and UCLA law professor Adam Winkler in, The Roberts Court is Born.  "No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there."

Blogger DeLong cited evidence in a column --

and in a front-page article in the June 30 print edition of the Washington Post.

For further discussions of the ruling, visit the specialist Supreme Court SCOTUS Blog website -- and listen to the discussion on MTL Washington Update, the weekly public affairs radio show I co-host with MTL Network founder Scott Draughon each Thursday at noon (EDT). Click here for our analysis and guest interviews, now on archive.

For radio show listener questions, call (866) 685-7469 or email This email address is being protected from spambots. You need JavaScript enabled to view it.. Mac users need “Parallels.”

Jeffrey Silva

Featured on our June 28 show also will be telecom financial expert Jeffrey Silva and the prominent Washington insider Robert Keith Gray, author of the new book, Presidential Perks Gone Royal.

Silva, left, discusses the nation's shortfall of usable commercial spectrum for commercial wireless services, and what that means for Applications-hungry consumers and business that hope to expand. Among recent developments is an effort by the Federal Communications Commission to broker an interference settlement between satellite and land-based users of the 2.3 GHz band. This seemingly resolves a decade-long battle at the FCC and frees more spectrum for the SmartPhone operations of AT&T, the largest land-based owner of spectrum in the band.

Silva is a senior analyst for Medley Global Advisers (MGA), which is described as the leading global provider of macro policy intelligence service —for the world's top hedge funds, institutional investors, and asset managers. Its services and global network cover G20 plus Emerging Markets, Central Banks & Geopolitics, Global Oil & Energy Markets and Telecommunications. Silva, who publishes expert analytic reports, joined MGA in 2009 after a 26-year career as a leading telecom-high tech policy journalist and commentator. He served most recently as Washington Bureau Chief of RCR Wireless News, where he tracked telecom and high-tech policy matters pending before Congress, the Federal Communications Commission, the administration, courts, state governments and state regulatory agencies.

Robert Keith Gray

Gray, at right, focuses on the unfair advantage President Obama wields in the forthcoming election because of taxpayer-funded Presidential expense accounts, as wepreviously reported.

Regarding the court's health care decision, CNN published a report, What the Supreme Court's decision means for you. The summary by reporter Josh Levs said,The requirement to have health insurance by 2014 remains in place; Insurance companies must cover people with pre-existing conditions; Small business owners and medical groups disagree over the impacts of the law. CNN's analysis of other highlights is below.

As the court closes its 2011-2012 term with the day's decisions, I'll be attending during the evening a lecture by Justice Clarence Thomas to the Yale Law School regional alumni body for the District of Columbia, Virginia and Maryland members. I have no idea of his topic and these private gatherings are typically off of the record.

But these sightings of historical figures are always instructive, nonetheless, especially when history seems in the making in the nation's capital, for better or worse. The June 28 speech is a bookend for a similar experience at the beginning of the court's term in October. For that, I attended the Red Mass, attended also by Justice Thomas and four other justices, including the chief justice. The ceremony at St. Joseph's Cathedral in Washington followed by a brunch with speeches is to bless those who serve justice in the nation's courts. It is organized by the John Carroll Society.

That society is named for the Revolutionary Era Constitution framer who was primarily responsible for language in the document requiring separateon of church and state. A Roman Catholic, he went on to become the first Roman Catholic archibiship in North America.

Back then, Catholics were a distinct and at times oppressed minority in the new country. So the separation language could be regarded as a Legal verity, or more politically as self-protection. The nine-member Supreme Court's current make-up of six Roman Catholic judges and three Jewish justices illustrates how times have changed -- as law sometimes does also.



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Post-Decision Updates

Huffington Post, Roberts Raises the Election Year Stakes, Bruce Ackerman, June 29, 2012. John Roberts' decision on health care places the country at a constitutional crossroads. On the one hand, his majority opinion upholds the greatest expansion of the welfare state since the 1960s. On the other, it undermines the constitutional underpinnings of big government. This makes the current presidential election into a constitutional turning point -- the next judicial appointments will determine the path which the nation will follow for the next generation. Roberts decided the case all by himself. The four liberals found him too conservative on one key issue; the four conservatives found him too liberal on the other. Though nobody agreed with him on both, he cast the decisive fifth vote on each. This is why the next Supreme Court appointments will tip the balance beyond the Chief Justice's control.

Harper's / No Comment, Our Politicized Judiciary, Scott Horton, June 28, 2012. The Supreme Court has held the news spotlight this week as at no other time in recent memory. The Court’s 5–4 ruling on this year’s cornerstone case, addressing challenges to the constitutionality of Obama’s health-care-reform legislation, proved anticlimactic: it upheld the law, though on somewhat different grounds than most constitutional-law scholars had anticipated before oral argument. Instead of validating the mandate to purchase insurance under the commerce clause, Chief Justice Roberts’s majority opinion called the mandate a tax. But earlier in the week, in a ruling that may prove equally important, the Court expanded upon its 2010 ruling in Citizens United, striking down Montana’s efforts to impose campaign-finance restrictions on corporate giving. And in another ruling, the Court upheld challenges to an Alabama law that mandated life sentences for certain classes of juvenile offenders, finding that this punishment was “cruel and unusual.” Each of the three rulings contained some remarkably intemperate and partisan language—evidence of an increase in the political temperature within the high court. Lawyers are trained to avoid challenging the impartiality and integrity of courts. The perception of impartiality is essential to the successful functioning of a judicial system, after all. Nevertheless, the claim of impartiality is becoming threadbare. There are 874 federal judgeships in the United States. Many of these judges strive to uphold ethical standards, suppressing their partisan instincts and applying the law as they read it. Others are proudly partisan—and the Supreme Court, led by Justices Scalia, Thomas, and Alito, is now home to the most striking examples of partisanship.

Huffington Post, 'The Broccoli Horrible': Ginsburg Shreds Roberts, Geoffrey R. Stone, June 28, 2012. In its decision today upholding the constitutionality of the Affordable Care Act, the Supreme Court, by a five-to-four vote, held that the individual mandate provision (requiring uninsured individuals who can afford to buy health insurance to do so) was justified by the Congress' power to tax, but not by its power to regulate interstate commerce. Only one justice thought the Act was constitutional under the taxing power but not the commerce power -- Chief Justice Roberts. The other eight justices thought the Act was either constitutional (Ginsburg, Breyer, Sotomayor, Kagan) or unconstitutional (Scalia, Kennedy, Thomas, Alito) under both provisions....Ginsburg, Breyer, Sotomayor and Kagan were right about the constitutionality of the Act under the Commerce Clause (even though they lost five-to-four on that issue).

Savage Nation / Conservative Blog Central, Republicans Don't Realize We're Screwed! Michael Savage, June 29, 2012 (Audio). "This was a sellout by Roberts."

Fox News / Conservative Blog Central,

Brett Bair and Shannon Brean, June 29, 2012 (Video). Brean: Did the Chief Justice switch his vote becuse of political pressure? Carrie Severino of the Judicial Crisis Network responded: "There are a lot of clues in the structure of the opinion that suggest that this may have been a late switch....I think he's called the integrity of the court into question....It appears to be a politically motivated choice rather than a legally motivated one."

Washington Post, Chief Justice John Roberts’s health-care ruling gets plenty second-guessing, Robert Barnes and Del Quentin Wilber, June 29, 2012. Chief Justice John G. Roberts Jr., under intense scrutiny for his decision upholding President Obama’s health-care law, is headed for an overseas teaching gig in Malta. Back in Washington, the legal and political worlds are trying to digest the stunning news that one of the court’s most consistent conservatives had pulled Obama’s signature domestic achievement from the brink.  Court specialists analyzed Thursday’s 5-to-4 opinion for clues, wondering whether Roberts might have switched his vote from invalidating the law to upholding it largely unscathed.

Brad DeLong, Did Nino Scalia Firmly Think He Had His "Constitutional Moment", and His Majority? Brad DeLong, June 28, 2012. Sure sounds like he did not search-and-replace his text to correct it when Roberts peeled off. Successfully electing George W. Bush 5-4 was not enough for him. He thought he had repealed the ACA 5-4 as well. Scalia refers to Ginsburg's concurrence--agreeing with the Court that the mandate stands, but for different reasons than the opinion of the Court expresses--not as a concurrence, but as a "dissent."

FireDogLake, Chief Justice Roberts May Have Switched Health Care Vote at Last Minute, David Dayen, June 28, 2012. Was there a late-game shift in the thinking of the Supreme Court on their Affordable Care Act ruling? That’s certainly the implication from this catch by Brad DeLong. Repeatedly in his opinion, Justice Antonin Scalia refers to Ruth Bader Ginsburg’s concurring opinion as a “dissent.” An example, which is littered throughout the text: "Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense…"[emphasis added."  As I said, this happens over and over, nine times in the text. Now maybe this is just typical Scalia dismissiveness, but it’s also completely plausible that Ginsburg’s opinion WAS a dissent at one point, and Scalia’s concurring dissent originally the majority opinion.

Washington Post / Bloomberg, GOP’s big shift on health care, Ezra Klein, June 29, 2012. Today, Mitt Romney touts a health-care plan, to the extent he has one, that would almost certainly lead to reduced insurance coverage. He wants to repeal the Affordable Care Act, cutting loose 31 million Americans who are expected to gain coverage under the law. Then he wants to drastically cut Medicaid spending by turning it over to the states and capping the growth of federal contributions. The Urban Institute estimates that such a policy would cause 14 million to 19 million Americans to lose Medicaid coverage.  This, perhaps, is one of the clearest differences between the Republicans and Democrats in this election: health insurance for 45 million to 50 million people.

 

Background (Via SCOTUS Blog)

Click here for:

Supreme Court 2011-12SCOTUS Blog Resources
•Affordable Care Act in depth special feature
•Department of Justice Health Care Legal Defense
•Healthcarelawsuits.org
•ACA Litigation Blog
•Lyle Denniston's Media Guide
• Constitutionality of the Affordable Care Act symposium page

Court documents in granted cases
•Dept. of Health and Human Services v Fla. (Minimum coverage and Anti-Injunction Act)
•Fla. v. Dept. of Health and Human Services (Severability and Medicaid)
• National Federation of Independent Businesses v. Sebelius (Severability)
•The Court's Patient Protection and Affordable Care Act page

SCOTUSblog, The Roberts Court is Born, Adam Winkler, June 28, 2012.  Chief Justice John Roberts was the surprising swing vote in today’s Obamacare decision. Although he agreed with the four conservative justices, including Kennedy, that the individual mandate was not a regulation of interstate commerce, he voted with the Court’s moderates to hold that it was justified as a tax. Because people who don’t obtain insurance pay a tax to the IRS, the mandate was within Congress’s power to raise taxes for the general welfare. As a result, the Affordable Care Act was upheld. With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism.  Roberts peered over the abyss and decided he didn’t want to go there.

Washington Post, For SCOTUSblog, one goal: ‘Beat everybody’ and break news of health-care ruling, Sarah Kliff, June 27, 2012.  Lyle Denniston is an 81-year-old retiree with six grandchildren, two sailboats and one ambitious goal: breaking the news of the Supreme Court’s landmark decision on the health-care law, possibly to the president himself. Denniston is a reporter for SCOTUSblog, a small Web site dedicated to covering the Supreme Court. He regularly live-blogs the release of Supreme Court opinions for a following of about 1,500 lawyers, maybe 3,000 on a good day.

Related News Coverage

USA Today, Supreme Court upholds Obama health care law, David Jackson, June 28, 2012. The Supreme Court upheld President Obama's health care law today in a splintered, complex opinion that gives Obama a major election-year victory. Basically, the justices said that the individual mandate -- the requirement that most Americans buy health insurance or pay a fine -- is constitutional as a tax. Chief Justice John Roberts -- a conservative appointed by President George W. Bush -- provided a key vote to preserve the landmark health care law, which figures to be a major issue in Obama's re-election bid against Republican opponent Mitt Romney. Obama is expected to comment on the decision within the next two hours.

Huffington Post, Health Care Dissent: Here's What The Conservative Wing Wanted To Happen, Ryan Grim, June 28, 2012. Mitt Romney, reacting to the Supreme Court's health care ruling Thursday, said, "I agree with the dissent." The dissent tosses out the entire health care law, dismissing the case for it as "feeble" and a "vast judicial overreach." It argues that "against a mountain of evidence," its backers offer only the "flimsiest of indications to the contrary."  Four of the five Republican appointees on the Court agreed with this interpretation, and it would have carried the day if Chief Justice John Roberts had joined them. Had he done so, the "entire statute" -- meaning the entire law, from beginning to end -- would have been invalidated, including provisions that had already gone into effect. Strangely, the dissenting justices argue that even constitutional provisions must be ruled unconstitutional because "the Act’s other provisions would not have been enacted without" it central elements, the mandate and the Medicaid provision.

CNN, What the Supreme Court's decision means for you, Josh Levs, June 28, 2012. CNN's analysis of decision highlights:

The uninsured
The decision leaves in place the so-called individual mandate -- the requirement on Americans to have or buy health insurance beginning in 2014 or face a penalty -- although many are exempt from that provision. In 2014, the penalty will be $285 per family or 1% of income, whichever is greater. By 2016, it goes up to $2,085 per family or 2.5% of income.
Health care exchanges, which are designed to offer cheaper health care plans, remain in place as well.

The insured
Because the requirement remains for people to have or buy insurance, the revenue stream designed to help pay for the law remains in place. So insured Americans may be avoiding a spike in premiums that could have resulted if the high court had tossed out the individual mandate but left other requirements on insurers in place.

Young adults
Millions of young adults up to age 26 who have gained health insurance due to the law will be able to keep it. The law requires insurers to cover the children of those they insure up to age 26. About 2.5 million young adults from age 19 to 25 obtained health coverage as a result of the Affordable Care Act, according to the U.S. Department of Health and Human Services. Two of the nation's largest insurers, United Healthcare and Humana, recently announced they would voluntarily maintain some aspects of health care reform, including coverage of adult dependents up to age 26, even if the law was scrapped.

People with pre-existing conditions

Since the law remains in place, the requirement that insurers cover people with pre-existing medical conditions remains active. The law also established that children under the age of 19 could no longer have limited benefits or be denied benefits because they had a pre-existing condition. Starting in 2014, the law makes it illegal for any health insurance plan to use pre-existing conditions to exclude, limit or set unrealistic rates on coverage. It also established national high-risk pools that people with such conditions could join sooner to get health insurance. As of April, a total of only about 67,000 people were enrolled in federally-funded pools established by the health care law, according to the National Conference of State Legislatures. More than 13 million American non-elderly adults have been denied insurance specifically because of their medical conditions, according to the Commonwealth Fund. The Kaiser Family Foundation says 21% of people who apply for health insurance on their own get turned down, are charged a higher price, or offered a plan that excludes coverage for their pre-existing condition.

All taxpayers
No matter what the Supreme Court had decided, it would have been a mixed bag for all Americans when it comes to federal spending. There is heated dispute over what impact the health care law will have on the country over the long term.

Scripps-Howard Foundation Wire, Supreme Court upholds health-care law, Emily Siner, June 28, 2012. The Supreme Court ruled Thursday that President Barack Obama’s key domestic policy, the Affordable Care Act, is largely constitutional. Chief Justice John G. Roberts joined the 5-4 decision upholding most of the law. He wrote the majority opinion. In the complex 193-page opinion , the justices primarily addressed the individual mandate and the expansion of the Medicaid program. Both issues were brought to the court on the grounds that Congress overreached its constitutional power to compel citizens and states to buy insurance or create new programs.

Volokh Conspiracy, Was the Dissent Originally a Majority Opinion? David Bernstein, June 28, 2012. The four-Justice dissent, at least on first quick perusal, reads like it was originally written as a majority opinion, [something Larry Solum also noticed] (for example, he refers to Justice Ginsburg’s opinion as “The dissent”) [update: Ginsburg did in fact technically dissent on the Commerce Clause issue, but I think it's unusual to refer to an opinion written by the winning side as "the dissent."

Talking Points Memo,

.be">Fox, CNN Jump The Gun On HealthCare Ruling, David Taintor, June 28, 2012. In the mad dash to report the Supreme Court’s historic health care ruling before the competition, CNN and Fox News got a bit ahead of themselves. CNN first broke the news that the health care law’s individual mandate was struck down. CNN’s reporters and producers sent tweets of the mandate’s demise. The network’s homepage splashed this headline: “Mandate struck down — High court finds measure unconstitutional.” Kate Bolduan reported on air that, according to CNN court producer Bill Mears, the individual mandate is “not a valid exercise of the Commerce Clause. It appears as if the Supreme Court justices have struck down the individual mandate, the centerpiece of the health care legislation.”

Newsday, CNN's mistake on Obama health care ruling historic, Lane Filler, June 28, 2012. Finally, with today’s Supreme Court decision, a decades-long battle is over: “Dewey Beats Truman,” is no longer the biggest major screw-up in American media history. In other news, it was a pretty good day in the decades-long battle to insure lots and lots of Americans deprived of health care. CNN, in full-throated Wolf Blitzer-mode, fell victim to the biggest fallacy of the modern news media -- that it’s really important to have the story first, even if it's only by, say, a nanosecond. The network announced that the Affordable Care Act, and the mandate that all Americans who can afford it must buy health insurance, had been struck down, the exact opposite of what happened.

 

Other Commentary

OpEd News, Big Win for Predatory Healthcare Giants, Stephen Lendman, June 30, 2012. hHealthcare giants win. People lose. At issue was National Federation of Independent Business, et al, Petitioners v. Kathleen Sebelius, Secretary of Health and Human Services, et al (NFIB v. Sebelius). Voting 5 - 4 on Thursday, the Supreme Court upheld what should have been rejected. Pro-business High Court rulings aren't new. Since the 19th century, what business wants matters most. Santa Clara County v. Southern Pacific Railway stands out. It granted corporations legal personhood. Ever since, they've had people rights without responsibilities. Their limited liability status exempts them. As a result, they've profited hugely and continue winning favorable high and lower court rulings. Another big one came on June 28. Health giants won. People lost. At issue was challenging Obama's Patient Protection Affordable Care Act (PPACA) - aka Obamacare. In 2010, Ralph Nader called Obamacare a boon to predatory giants. They profit hugely. Ordinary people lose. Nader called PPACA "a pay-or-die system that's the disgrace of the Western world." Former CIGNA vice president Wendell Potter said Obamacare shifts costs to consumers, offers inadequate or unaffordable access, forces Americans to pay higher deductibles for less coverage, and ends up scamming them. Physicians for a National Health Program (PNHP) headlined their press release " 'Health law upheld, but health needs still unmet:' national doctors group," saying: Modest PPACA benefits don't remedy "our health care crisis."

Huffington Post, Mitt Romney On Supreme Court Health Care Ruling: We Must 'Replace President Obama,' (VIDEO) Amanda Terkel, June 28, 2012. Speaking on Capitol Hill shortly after the Supreme Court's historic decision, GOP presidential candidate Mitt Romney said the fact that health care reform was upheld as constitutional on Thursday makes it more urgent than ever for the American people to vote President Barack Obama out of office in November. "If we want to get rid of Obamacare, we're going to have to replace President Obama," Romney said. Romney said he agreed with the four dissenting justices, who ruled that the entire Affordable Care Act should be thrown out.

Barack ObamaHuffington Post, Obama Responds To Supreme Court Health Care Ruling, (VIDEO), Sam Stein, June 28, 2012. President Barack Obama praised the Supreme Court's 5-4 decision that his signature health care law was constitutional Thursday, calling the ruling "a victory for people all over this country." "The highest court in the land has now spoken. We will continue to implement this law," he said, speaking to cameras in the East Room of the White House. "With today's announcement it is time for us to move forward, to implement and when necessary improve on this law." The ruling is a huge win and a big relief for the administration, which spent 18 months and heavy political capital pushing health care reform through Congress. The president has had other achievements on the domestic and foreign policy fronts, but it's fair to say that the passage of the Affordable Care Act was at the top of his list of accomplishments. That the court upheld the law's constitutionality was almost as momentous as the law's passage in the first place.

Washington Post, Roberts’s health-care decision stuns many but is in line with his outlook, Dan Eggen, June 28, 2012. The umpire took center stage Thursday as the Republican chief justice who upheld President Obama’s health-care law, delighting liberals who have long despised him and enraging conservatives who considered him one of their own. The decision stunned legal observers on both sides and made Roberts the focus of heated invective from conservative activists and some Republican members of Congress, who derided him as a “traitor.” Rep. Louie Gohmert (R-Tex.) talked about the possibility of removing Roberts and other justices from the bench. But many of those familiar with Roberts’s thinking say the calibrated decision is fully in keeping with the outlook of a studious former Catholic schoolboy who made his way to be first in his class at Harvard — conservative in his views but also reverent toward institutions.

Washington Post, Why Roberts did it, Charles Krauthammer, June 28, 2012.Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political….National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president. Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf. Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.

Justices Antonin Scalia and Clarence ThomasWashington Post, Justice Scalia’s partisan discredit to the court, Editorial Board, June 27, 2012.  In dissenting from a court ruling that struck down all but one part of Arizona’s law on illegal immigrants, Justice Scalia strayed far from the case at hand to deliver animadversions on President Obama’s recent executive order barring the deportation of people who entered the country illegally as children. Based on nothing more than news reports, Justice Scalia opined that this policy would divert federal resources from immigration enforcement, thus creating “the specter” of a “Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.”

Washington Post, Justice Scalia must resign, E.J. Dionne Jr., June 27, 2012. Antonin Scalia [portrayed at left with Justice Clarence thomas] needs to resign from the Supreme Court. He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem. So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line. Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay.  But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.

Catching Our Attention on other Justice, Media & Integrity Issues

Bloomberg News, TV-Newspaper Ownership Limits Left Intact By High Court, Greg Stohr and Todd Shields on June 29, 2012. The U.S. Supreme Court left intact decades-old limits on ownership of broadcast stations and newspapers, refusing to hear media-industry appeals that might have led to a wave of acquisitions. Tribune Co. and other media companies argued that the Federal Communications Commission rules, some of which date to 1941, don’t make sense in an age of cable television and the Internet. The companies challenged the rules on free-speech grounds.  “It was a long shot,” Shaun Sheehan, a vice president of Chicago-based Tribune, said in an interview. “We knew it was a long shot. We’ll pursue relief from this antiquated restriction in any venue we can find.” The court didn’t comment as it turned away the companies, including Media General Inc. (MEG) (MEG), which owns daily newspapers and a television station in the Tampa, Florida, area after selling 63 newspapers to Warren Buffett’s Berkshire Hathaway Inc. (BRK/B) (B) Some companies own a broadcast station and daily newspaper in the same city under exceptions to the rules established in 1975.  The FCC, which must periodically review media-ownership regulations, has proposed keeping some limits in a rulemaking begun in December.  “We look forward to prompt consideration” by the agency, Ray Kozakewicz, a spokesman for Richmond, Virginia-based Media General, said in an e-mailed statement. “Consumers in markets of all sizes are better served by the higher-quality local news and content achievable through common ownership of media properties.” The rules limit local broadcasters’ ability to compete with cable and satellite-TV companies, and broadcasters are disappointed with the high court’s action, Dennis Wharton, a spokesman for the National Association of Broadcasters, a trade group, said in an e-mailed statement. The cases are Media General v. FCC, 11-691; Tribune Co. v. FCC, 11-696, and National Association of Broadcasters v. FCC, 11-698.

Washington Post, Supreme Court strikes down Stolen Valor Act, Steve Vogel, June 28, 2012. The Supreme Court on Thursday struck down a federal law that made it a crime to lie about having received military medals. The Stolen Valor Act of 2005 makes it a crime to falsely claim to have been awarded military honors and decorations. It imposes increased penalties for lying about certain awards, including the Medal of Honor.  But in the Supreme Court’s 6-3 decision, Justice Anthony M. Kennedy, who wrote the court’s opinion, said the act “would endorse government authority to compile a list of subjects about which false statements are punishable.” Kennedy added that it might be possible to craft new legislation that could achieve the objective of the law “in less burdensome ways.”  Richard L. DeNoyer, commander in chief of the Veterans of Foreign Wars of the United States, said the organization “is greatly disappointed” in the decision.

The Hill, AG Holder decries 'political' vote, vows to go back to work, Justin Sink, June 28, 2012. Attorney General Eric Holder blasted the House's vote to hold him in contempt and vowed to stay focused on his work at the Department of Justice. Speaking at a press conference Thursday shortly after the vote concluded, Holder said Republicans and Rep. Darrell Issa (R-Calif.), chairman of the powerful House Oversight Committee, held a "politically-motivated" vote.  "Today’s vote is the regrettable culmination of what became a misguided – and politically motivated – investigation during an election year. By advancing it over the past year and a half, Congressman Issa and others have focused on politics over public safety," he said. The Republican-controlled House voted 255-67 to hold the attorney general in contempt, the first time in American history that the head of the Justice Department has faced such a sanction. Seventeen Democrats joined the GOP in voting for the resolution.

Wall Street Journal, The iPhone Turns Five, Thomas W. Hazlett, June 26, 2012. Forget the shouting about 'open' or 'closed' systems. The magic is in the dynamics of platform competition. On June 29, 2007, thousands of fan-boys and -girls camped in long lines to inhale a wisp of sweet techno fairy dust. The iPhone is not only the world's single most popular smartphone, it is insanely lucrative. Now top developers, according to numerous reports in the tech press, are ditching Android for Apple—for a company that maintains dictatorial control over its content. That very coordination is yielding unmatched benefits, particularly in customer ease-of-use that drives iPhone and iPad owners to be truly massive consumers of apps and online media....The magic is not in a particular model but in the dynamics of platform competition. Shouting out "open" or "closed" as a prescription for categorical success is at best a mirage and at worst a predicate for anticonsumer public policy, like the government's long antitrust crusade against Microsoft.

Washington Post, Agent who started ‘Fast and Furious’ defends gunrunning operation, Sari Horwitz, June 27, 2012. The “Fast and Furious” gun-tracking operation has been widely condemned by Republicans, Democrats and even top officials at the Justice Department as a failed sting. The case has led to the ouster of the U.S. attorney in Phoenix, President Obama’s first use of executive privilege and a probable vote of contempt Thursday against the attorney general. But in the eyes of the man who started and oversaw Fast and ­Furious, the operation remains an example of smart law enforcement — an approach that has simply been misunderstood. “It was the only way to dismantle an entire firearms-trafficking ring and stop the thousands of guns flowing to Mexico,” said William D. Newell, a veteran federal agent who spent five years as the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives in Phoenix.

Las Vegas Sun, Judge refuses to block Florida voter purge, The Associated Press, June 27, 2012. A federal judge has refused to stop Florida from removing potentially non-U.S. citizens from its voter rolls. The U.S. Department of Justice sued the state to halt the purge, arguing it was going on too close to a federal election. U.S. District Judge Robert Hinkle said Wednesday that there was nothing in federal voting laws that prevent the state from identifying non-U.S. citizens even if it comes less than 90 days before the Aug. 14 election. Hinkle ruled that federal laws are designed to block states from removing eligible voters close to an election. He said they are not designed to stop states from blocking voters who should have never been allowed to cast ballots in the first place. Gov. Rick Scott praised Hinkle's decision, saying "irreparable harm will result if non-citizens are allowed to vote."

Wall Street Journal, IRS Probes Political Group Tied to Rove, Brody Mullins and Jacob Gershman, June 26, 2021. The Internal Revenue Service is taking initial steps to examine whether Crossroads GPS, a pro-Republican group affiliated with Karl Rove, and similar political entities are violating their tax-exempt status by spending too much on partisan activities. The review, which could last for years and is unlikely to be concluded before the November election, could ultimately force many of the political groups to disclose the names of their donors for the first time. At issue is whether political entities set up as 501(c)4 organizations are violating their tax-exempt status by spending too much on partisan politics rather than promoting a benefit.

Several sources say Racalto lost the sexual harassment claim in the House. So far, Congress has not made the House’s final conclusions in the Racalto sexual harassment claim public. Massa and Racalto are awaiting a trial case in Rochester in which Massa claims Racalto improperly got himself a check for $40,000 for alleged campaign work. Massa is seeking to recover that money.

WLEA / Canisto Valley News (Hornell, New York), Massa Supporters Trying To Clear Former Congressman's Name, Staff Report, June 28, 2012. Sources Accuse Racalto Of Framing Massa In 2010
, June 28, 2012. Some people are eager to clear former Congressman Eric Massa’s name. Massa resigned in disgrace in 2010 amid allegations of sexual harassment by his chief of staff, Hornell native Joe Racalto. But numerous sources maintain that Racalto framed Massa, and created a paper trail of lies to make Massa look like a sexual predator, and then instigated a house-investigation about Massa and leaking news of this investigation to the media at the same time. Massa’s account can be found in House legal documents in which attorneys describe Racalto as lying, possessive, jealous and controlling of Massa. So far, Congress has not made the House’s final conclusions in the Racalto sexual harassment claim public. Massa and Racalto are awaiting a trial case in Rochester in which Massa claims Racalto improperly got himself a check for $40,000 for alleged campaign work. Massa is seeking to recover that money.

Guardian (United Kingdom), Rupert Murdoch snubs Britain and says he will invest his billions in the US, Dominic Rushe, June 29 2012.  Rupert Murdoch appears to have turned his back on Britain following his humiliation over the phone-hacking scandal. In an interview with the Fox Business channel on Thursday following New Corporation's confirmation that it was splitting into two companies, entertainment and publishing, Murdoch said he would be "a lot more reluctant" to invest in Britain now, compared to the US.  The News Corp chairman and chief executive also told Fox Business host Neil Cavuto it was "highly unlikely" that his eldest son, Lachlan Murdoch, would run the new newspaper, book publishing and education company. Once Britain's most powerful media figure, Murdoch has seen his bid for broadcaster BSkyB blocked and his reputation dragged through the mud following the phone-hacking revelations. Last month a parliamentary committee said he was not a fit and proper person to run a major corporation. Now he looks set to retaliate by taking his money elsewhere.

Asked about his future plans following his decision to split his News Corp empire in two, Murdoch made clear the UK was not his first priority and said the company's thinking had "moved on" since it abandoned its Sky bid last summer at the height of the phone-hacking scandal.  "There are billions and billions of dollars, and if Britain didn't want 'em, there are plenty of good places to put them here [in the US]. I'm much more bullish about America than I am about England," he added. "I would be a lot more reluctant to invest in new things in Britain today, rather than here."  Asked by Cavuto whether this was because of what he went through, Murdoch replied: "No, not at all, just the English." Murdoch said that Europe was in for a "very long, tough haul" and that business prospects in the US were far more rosy. That said the media mogul was worried about Thursday's decision by the US Supreme Court to uphold president Barack Obama's landmark healthcare legislation. Ken Doctor, media analyst at Outsell, said the split presaged Murdoch's exit from the UK. "It's a recognition of his waning influence in the UK and the consolidation of his business in the US. If he was 60, I would bet on him making a UK comeback but he's not and I can't see him achieving that in his lifetime."  He said that he expected the UK papers would eventually be sold or put into a trust. "Those newspapers and his influence in the UK have grown hand in hand. That's over now."

Independent (United Kingdom), Ireland Sells its Voting Machines, €54m voting machines scrapped for €9 each, Paul Melia and Luke Byrne, June 29, 2012. The Government has sold the infamous €54m e-voting machines for scrap -- for €9.30 each. A huge fleet of trucks will begin removing the 7,500 machines from 14 locations on Monday. They will be taken to a Co Offaly recycling company, KMK Metals Recycling Ltd in Tullamore, where they will be stripped down and shredded. Scrapping the machines brings to an end the embarrassing e-voting debacle which has cost the taxpayer more than €54m since it emerged the expensive equipment was faulty. They could not be guaranteed to be safe from tampering. And they could not produce a printout so that votes/results could be double-checked. But last night the man who first proposed using them washed his hands of the affair.

Republic Report, NY Attorney General Probing U.S. Chamber of Commerce For Allegedly Laundering AIG Money For Lobbying, Political Commercials, Mehrad Yazdi June 27,2012.  New York state will investigate the U.S. Chamber of Commerce for unfair corporate influence in elections. Yesterday, New York Attorney General Eric T. Schneiderman issued a subpoena targeting a foundation affiliated with the U.S. Chamber of Commerce for illegally funneling $18 million to the Chamber for its political campaigning and lobbying efforts.
Schneiderman’s investigation is significant because it targets the use of tax-exempt groups that funnel money into politics while hiding donors: The biggest such groups, including Americans for Prosperity, which is backed by the billionaire brothers Charles and David Koch, and Crossroads Grassroots Policy Strategies, which was founded by Karl Rove and other Republican strategists, are expected to spend hundreds of millions of dollars this year on issue advertisements against candidates to sway the outcome of the presidential and Congressional elections. By targeting the U.S. Chamber of Commerce, Schneiderman is striking at one of the largest political players in the country. In 2011 alone, the Chamber spent $66 million on lobbying and has promised to spend at least $50 million on issue ads on the upcoming elections.