I’m just saying . . .

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

5 Responses

  1. Dan Cole says:

    As one of those who actually predicted the White House would win this case, I confess I’m baffled as to why the Chief was in the majority. I thought he might come on board as a sixth vote, iff Kennedy favored upholding the statute. But the fact that Kennedy was in the dissent really has me scratching my head about how Roberts ended up writing the majority opinion.

    He couldn’t have been compelled by irresistible constitutional logic – after all, his own argument did not persuade any other conservatives to join his opinion. Perhaps he was most concerned about the effect of an opposite outcome on election-year politics and/or the public standing of the Court, but that seems unlikely. Or maybe he’s playing a longer-run game (of which this is a single iteration), where he gives a little now – upholding the individual mandate under the tax power (a power that has become increasingly difficult for Congress to exercise) – to gain greater restrictions on the commerce power, which will come in handy later. Who knows?

  2. Ken Rhodes says:

    Perhaps, Dan, he was compelled by an irresistable impulse to follow Occam’s Razor — his attribution of the power of the government to its authority to tax is so simple it seems mind boggling to me that the administration didn’t simply hang its hat on that in the first place. Why was all that talk of the Commerce Clause ever in play at all?

    What’s mystifying to me is how four allegedly “conservative” justices could have been so blinded by their political preferences that they could ignore the elegant simplicity of Roberts’ point.

  3. Brett Bellmore says:

    The could ignore it because Congress called the penalty a penalty. They routinely presume Congress is telling the truth, even to the point of refusing to admit any evidence they’re being lied to. (Enrolled bill doctrine, for instance. Or see the reasoning by which the NFA was upheld.) Why the hell should they suddenly assume Congress is lying when they tell the Court something contrary to their own interest?

    This stands the notion of admission against interest on it’s head.

  4. Ken Rhodes says:

    They could have called it a flibertygibbet for all that matters. The law specifies actions, counter-actions, conditions and responses to those conditions, etc. It’s those actions, responses, etc., that had to be judged.

    It’s like a software program: If x, then a, else b, then go to 10. In the practice of programming the data names and paragraph names are generally made to be meaningful, but that’s for maintainability. You can call them anything you want and it doesn’t affect the activity of the program.

    What it really is is an “uninsured patient fee,” just like Virginia’s “uninsured motorist fee.” But Congress’ incomprehensible shortsightedness in choosing a dumb name doesn’t mean a hill of beans in executing the provisions of the law, nor should it in judging the validity of the law.

  5. Dave says:

    Perhaps he didn’t avoid the “constitutional difficulties” in Citizens United, but surely we can agree that there is a major difference in the constitutional avoidance principle when we are finding congressional authority for a statute and when we are finding that a statute violates a provision of the bill of rights. A statute that is not supported by one grant of constitutional authority may be valid under a different grant of constitutional authority, though a statute that violates the constitution isn’t magically rendered constitutional simply because we choose not to think about it.

    I’m sure we can also agree that there isn’t a non-constitutional method of finding constitutional authority for an act of Congress, and that there is nothing troubling in accepting the government’s arguments in the alternative that a statute is constitutional (at least, I’m not aware of a principle whereby the solicitor general has to get it right on the first try or Congress has to reconvene).

    And I think we can also agree that the courts actively do not try to read statutes in a way that would not violate the first amendment, but rather specifically analyze them for over-breadth. Certainly there is a tension between Article III cases and controversies standing and the “strong medicine” of the over-breadth doctrine, but Roberts is hardly the first justice to find a violation of the speech clause that was not argued by a party.

    I don’t think your comment is fair because it implies that there is something other than basic judicial analysis behind Robert’s position in two different cases. The implication may be true, but it certainly does not derive from his application of avoidance theories in two dramatically different contexts.