California Hippiespeak Comes to the U.S. Supreme Court

Although your Wizard has never personally argued a case before the U.S. Supreme Court, it is undoubtedly a daunting task.  The courtroom itself is majestic and impressive, and it is designed -- if not in intent, but certainly in effect -- to be humbling. 

One can only imagine, then, the butterflies that took up residence in the digestive system of one Jonathan Libby, who recently argued for the respondent in U.S. v Alvarez. 

Mr. Libby's client, Xavier Alvarez, had been convicted of violating the Stolen Valor Act, a 2006 federal law that made it a crime for a person to falsely claim that he had been awarded a medal for service in the armed forces.  It turns out that Alvarez, an elected member of the Board of Directors of the Three Valleys Water District in Claremount, California, stated to his fellow members during a meeting: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medial of Honor.  I got wounded many times by the same guy. I'm still around.”

These statements were lies—he never served in the Marines or received a Medal of Honor. In fact, Alvarez had frequently lied about his accomplishments in the past, often fabricating sensational stories about his purported military service.

After his conviction, Alvarez appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the conviction, holding that the Stolen Valor Act violates the First Amendment because it unconstitutionally limits free speech and is not narrow enough to meet a “compelling government interest.”

So that brings us to the argument before the Supreme Court.  After hearing from the U.S. Solicitor General, the Court called on deputy public defender Jonathan Libby:

          MR. LIBBY: Thank you, Mr. Chief Justice, and may it please the Court:

The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie. It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.

CHIEF JUSTICE ROBERTS: What is -- what is the First Amendment value in a lie, pure lie?

 MR. LIBBY: Just a pure lie? There can be a number of values. There is the value of personal autonomy.

 CHIEF JUSTICE ROBERTS: The value of what?

MR. LIBBY: Personal autonomy.

CHIEF JUSTICE ROBERTS: What does that mean?

 MR. LIBBY: Well, that we get to -- we get to exaggerate and create -

CHIEF JUSTICE ROBERTS: No, not exaggerate -- lie.

MR. LIBBY: Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain. That was creating a persona, and he made things up about himself -

CHIEF JUSTICE ROBERTS: Well, but that was for literary purposes. No one is suggesting you can't write a book or tell a story about somebody who earned a Medal of Honor and it's a fictional character, so he obviously didn't. It just seems to me very different.

 MR. LIBBY: Perhaps. But there are other things. In addition to the fact that people tell lies allows us to appreciate truth better.

So Mr. Libby would have the Court create constitutional doctrine on the psychobabble of "personal autonomy" and "lies allow us to appreciate truth better."  I think Mr. Libby may have spent too many years in the public defender's office or in California or both.  How about "murder is an expression of self-esteem and helps us appreciate life better" -- does that argument work for you?

I cannot predict the outcome of this case -- the Court will be sympathetic to Congress's intentions, but it has applied the First Amendment pretty broadly -- but I pray that, even if Alvarez prevails, the Court does not turn its hallowed courtroom into a haven for arguments more appropriately made on the Jerry Springer or Dr. Phil shows. 

Understanding the Health Care Litigation, Part One

After all the politics appearing in these hallowed pages lately, it's time to get back to fundamentals, as befits the Wizard of Laws.  (Though I dare say that my January 7 and November 9 posts below have been amply vindicated).

The big event of the U.S. Supreme Court's 2011-2012 term -- and perhaps the most important since Brown v Board of Education -- will be the decision on the various cases involving the Patient Protection and Affordable Care Act. commonly known as Obamacare.

The issues to be argued are known generally by the public, but few understand them in any detail.  For example, during a recent forum, the Lieutenant Governor here in the Enchanted Mitten, arguing for a state-established health care exchange, said that even if the Court finds the individual mandate unconstitutional, it will have no effect on health care exchanges, since HCEs are not before the Court.  This position is not exactly accurate.  If the Court determines that the individual mandate is unconstitutional. it will then  expressly decide whether the entire law must be struck down, including those provisions pertaining to health care exchanges.

The issue of whether to invalidate an entire law when one provision is declared unconstitutional is what is known as the issue of severability.  In other words, can the offending provision be severed from the rest of the law so that the law remains in effect, minus the severed provision?

There is a fair amount of misconception about severability.  Many people believe that an unconstitutional  provision cannot be severed unless there is a severability clause in the law itself.  Since Obamacare contains no severability clause, the argument goes that declaring the individual mandate unconstitutional will strike down the entire law automatically.

This is not true.

The Supreme Court established the applicable severability standard in the 1987 case of Alaska Airlines v Brock, in which it held that an unconstitutional provision may be severed "unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not."  So, severability is presumed, unless it is clear that, without the unconstitutional provision, Congress would not have enacted the law.

The Brock standard is not exactly a model that lends itself to metaphysical certainty.  The Court found that the "more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress."  Again, there is a certain subjectivity to this standard, which relies on faithful application by the courts.

Yes, I said "faithful," not "consistent."  In the four cases in which the individual mandate was found unconstitutional, the courts dealt with severability in four separate ways.  The courts in question decided:

1.  Only the mandate and those directly-dependent provisions which make specific reference to the mandate were to be severed;

2.  The mandate is non-severable and the entire law is invalidated;

3.  Only the mandate itself is severed; and

4.  The mandate is non-severable from the guaranteed-issue and preexisting conditions provisions, but the rest of the law remains intact.

One Supreme Court petitioner wrote:

As these four divergent opinions make clear, there is serious confusion as to how to apply this Court's severability jurisprudence to the [Act].  That confusion stems in large part from the unusual facts at hand, including the extraordinary length and complexity of the Act, and 'the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.'

As you can tell, this is a complicated issue, but it is now before the Court and, if the individual mandate is declared unconstitutional, the Supreme Court will then determine whether Congress would have enacted Obamacare without the individual mandate.  If the Court declares the mandate non-severable, the entire law will be invalidated, including those provisions related to health care exchanges.

Next time:  a closer look at the individual mandate and interstate commerce.