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Decisions to come shortly on three cases. As decisions come in revese order of seniority, the Health Care cases are expected to be last. How long it takes to reach them will depend on how long the comments from the bench (both by the author and by any dissenters who wish to comment from the bench) take. Besides the Health Care cases, the other major opinion left outstanding is the Stolen Valor Act -- criminaliing the making of false representations about military honors received. The Roberts Court is developing a reputation for taking a broad view of the Free Speech Clause and a narrow view of traditional exceptions to that clause (and not just in campaign finance cases). I will have more on that in a week or so after I have digested the last two weeks of opinions. This case could confirm that reputation. Updates will follow as opinions are released and posted. Update 1: Justice Kennedy has the judgment and plurality opinion in United States v. Alvarez. By a 6-3 vote, the current version of the Stolen Valor Act is unconstitutional. Justice Breyer and Kagan concur suggesting that the problem is the current language in the Stolen Valor Act, implying that a revised version might not violate the First Amendment. Update 2: Second case (First American dealing with mortgage fees was dismissed). Health Care opinion, per Chief Justice Roberts, finds that individual mandate survives under the Tax and Spend Clause. Medicaid provision apparently "limited." Bottom line appears to be that full Affordable Care Act is constitutional, but may be some restrictions on ability to terminate states from participation in the Medicaid program. As is not unusual, it is taking a bit of time for opinions to post properly, so will be back around 11:00 a.m. EDT with links to the opinions added in, and a little more clarity on the ACA decision. Update 3: Justice Roberts issued the opinon of the Court only with respect to the anti-tax injunction and the tax and spend clause. He speaks for himself on the Commerce Clause and Necessary and Proper Clause, and for himself, Justice Breyer, and Justice Kagan on the Medicaid Expansion. Justice Ginsburg writing for herself and Justice Sotomayor on the Medicaid Expansion finding it fully valid, but agrees with Justice Roberts that Congress would have wanted the penalty provision (cutting off funding from states that did not want to join the expansion) severed if that provision was found unconstitutional. Justice Ginsburg writing for herself, Justice Sotomayor, Justice Breyer, and Justice Kagan would find the mandate consitutional under the Commerce Clause. A joint opinin for the four dissenters (Scalia, Kennedy, Thomas, and Alito) would find that the individual mandate is not justified by either the Commerce Clause or the Tax and Spend Clause. They would find that the size of the Medicaid program makes it per se coercive. (Note: Their reasoning would arguably invalidate the existing program, not just the expansion.) They would also reject any request for severability. Justice Thomas also writes separately to suggest that the test of "affecting commerce" is an inappropriate Commerce Clause Test. Bottom Lines: 9-0 that Anti-Tax Injunction does not apply; 5-4 that the individual mandate violates Commerce Clause (but that finding might be non-binding dicta as); 5-4 that the individual mandate is authorized by the Tax and Spend Clause; 7-2 that the penalty provision of the Medicaid Expansion is an unconstitutional condition but 5-4 that the penalty provision is severable giving states an option to participate in Old Medicaid or New Medicaid.
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