Constitutional Confab

Interestingly, while most newspapers have spent the better part of this last year criticizing Citizens United, Adam Liptak of the NY Times realized something today: Newspapers are corporations. 

Liptak discusses the possibility that the decision in Citizens to extend First Amendment rights to the corporate “person” may very well be a bad decision, but without it, newspapers may be up a creek:

“If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?

The usual response is that the press is different. The First Amendment, after all, protects “the freedom of speech, or of the press.” Since “the press” is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.

But the argument is weak. There is little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.”

He goes on to discuss the really interesting question of new media: Twitter, Facebook, or perhaps Blogs. When someone uses these mediums to report news, do they become “The Press.” My initial response to that is: “No.” (Except for the Blogs, I’m totally a member of the press, I get special treatment, right?)  But that may be because I am not trying to make the argument that News Corps are different than IBM or Coca Cola.  I think I may not have as much of a problem with corporate personhood as Mr. Liptak.

Anyway, Mr. Liptak expresses an interesting part of the corporate personhood debate that we haven’t heard much about: maybe not all corporations deserve personhood status for speech but maybe some do.  

But, Mr. Liptak also admits that originalists have shown: “The [First] amendment surely meant to cover both oral and written expression… rather than a specially protected institution.” If that is true, how can we afford greater protection to some corporations (news media, publishers, etc) and not to others (AT&T, Coca-Cola, or God-forbid Citizens United)? 

After this week’s ruling on the constitutionality of the Health Care Mandate by Florida Judge Vinson, there has been plenty of talk on the Interwebs that perhaps the next step in the process will be taking the question straight to the Supremes instead of taking an appeal to the Circuit Court and then once decided there, to the Supreme Court.

There is a procedure in place for the Supremes to hear a case before it has been heard in the Circuit Court - Supreme Court Rule 11:

“A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

Clearly, this case is “of such imperative public importance as to justify” the Supremes take it on direct appeal. 

However, the Court almost never does that.  The past few times they have it has been when they have combined cases, one on appeal from a Circuit Court, and one on appeal from District Court. 

In my opinion, I don’t think they will take it on direct appeal.  Most of the experts think that the decision will come down to Justice Kennedy’s vote (I agree) but I think Justice Kennedy would love to have more time to think this over, and the rest of the Justices would love to have more time to pull him to their respective sides. If the Court doesn’t take it on direct appeal, rough estimates put the Court hearing it just before November 2012.  That should be intriguing. 

Today, Federal District Court Judge Vinson ruled the individual mandate portion of the Health Care Reform passed last year unconstitutional. Judge Vinson went on to rule that the mandate is not severable from the entire act, making the entire act unconstitutional.

Check here for the opinion; here for the WSJ story; here for the NYT story; here for the Politico story.

Judge Vinson basically argues that the Commerce Clause cannot apply to commercial inactivity because if it did apply Congress’ power to regulate any and all activity would be limitless.

Judge Vinson then goes on to declare that the whole act is unconstitutional:

“First, the Act does not contain a “severability clause,” which is commonly included in legislation to provide that if any part or provision is held invalid, then the rest of the statute will not be affected.
…
Moreover, the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself. The health insurance reform provisions were cited repeatedly during the health care debate, and they were instrumental in passing the Act.”

It’s seems to me that it was just an oversight to leave out a Severability Clause, but since they left it out, the whole act is unconstitutional if one part is found unconstitutional. (I guess it’s pretty hard to proofread a thousand page bill). Interestingly, the previous decision by a district court in Virginia to rule that the mandate is unconstitutional was accompanied by declaring the rest of the act constitutional.

Of course, this will be appealed, and most likely end up at the Supreme Court. The only question is when.

The Score is now 2-2.