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SCOTUS ACA Update

This update from XPOSTFACTOID showed up in my inbox. If Roberts and Kavanaugh continue on the same path they have started out on initially, it appears the case brought about by Texas may fail. Briefly, here are some points made.

November 10, 2020 in oral argument; California v. Texas  Roberts appears equally skeptical about this argument from intent. In oral argument yesterday, Kyle Hawkins, arguing for Texas, made the case:

“I think it’s critical that, in 2017, Congress could have excised the legislative findings in 18091 [the assertion of severability], but it chose not  to do so. It could have excised —

Roberts interjected:

Well, but I mean — I — I certainly agree with you about our job in interpreting the statute, but, under the severability question, where — we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And, here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.

In Roberts’ King v. Burwell decision: Congress repealed the individual mandate penalty, not the entire law.

Erwin Chemerinsky Explains Severability

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Do we really want our rights to be determined by the understandings of centuries ago?

The Philosophy That Makes Amy Coney Barrett So Dangerous, NYT, Erwin Chemerinsky, October 2020, Opinion Piece

If I did not know this man personally, I would have never looked to him for help and also advice from time to time.  It was only through a friend I wrote with at the old Slate site, I had the chance to meet him. Professor Chemerinsky discusses the dangers of applying an originalism interpretation of the US Constitution. There is not much I can add to this and I would call this article a copy and paste at Angry Bear. It is a good read for nonlegal based readers.

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In 1987, Robert Bork was denied confirmation to the Supreme Court because his originalist beliefs were deemed a serious threat to constitutional rights. Originalism is no less dangerous for those rights today, yet Judge Amy Coney Barrett’s repeated statements professing her belief in originalism have been met with little objection.

Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868.

But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that Brown v. Board of Education was wrongly decided in declaring laws requiring segregation of schools unconstitutional.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

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Recent SCOTUS Decisions

“I have rarely seen so much inconsistency and even hypocrisy from the Supreme Court as in its decision to uphold President Trump’s travel ban.”

On the Colorado SCOTUS Decision

A few weeks ago, the court found that members of the Colorado Civil Rights Commission had expressed impermissible hostility to religion because of relatively mild statements that every business in Colorado should serve all customers regardless of the owner’s religion, and that terrible things have been done in world history in the name of religion. By contrast, the court in upholding the travel ban essentially ignored repeated statements from Trump and his top advisors that he wanted to ban Muslims from coming to the United States.”
The president initially promulgated the travel ban by executive order on Jan. 27, 2017. It suspended immigration from seven countries for a period of 90 days and suspended the refugee program for a period of 120 days. It had an exception for those who were from minority religions in these countries. The seven countries shared three things in common: All were more than 90% Muslim, Trump had no economic investments in any of them, and none ever had been linked to terrorist activity in the United States.”

On the Travel Ban Scotus Decision

“Of even greater significance is the court’s contention that great judicial deference must be paid to the president in immigration policies, and that his actions will be upheld so long as they are supported by a conceivable legitimate purpose. With this premise, the court made irrelevant all the statements Trump and his advisors made about their desire for, as candidate Trump put it, a “total and complete shutdown of Muslims entering the United States.” The government’s claim that there is a national security justification for the ban is all that mattered. The dissenting justices in the travel ban case rightly analogize the majority’s ruling to the Supreme Court’s infamous decision in Korematsu vs. United States, which upheld the internment of Japanese Americans during World War II. Both policies were based on prejudice, not national security. In 1944, there was no evidence linking Japanese Americans to any threat to the country; there is now no evidence linking immigrants or visitors from the designated travel ban countries to terrorism. Although Roberts’ majority opinion repudiated Korematsu, the court ignored its crucial lesson.

Korematsu and now Trump vs. Hawaii represent the false assumption that danger to the nation can be determined by a person’s nationality or country of residence. In the United States, dangerousness should never be determined by race, ethnicity, national origin or country of residence. The Supreme Court ignored that fundamental American principle and created a precedent that gives the president vast powers to discriminate. It may be a victory for President Trump, but it is a huge loss for the Constitution and the rule of law.” Erwin Chemerinksy

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