Supreme News for DIU students

I thought of you students at Dubrovnik International University as the Supreme Court concluded its term at the end of June. Three cases we covered in the class on American business law were front and center in the Court’s wrap-up of its business and I hope you were following the news.

You’ll remember our discussion of the common law system including the value of stare decisis and the principle that the Supreme Court is the final authority on constitutional issues. Those points were illustrated in American Tradition Partnership v. Bullock, the recent Supreme Court decision dubbed colloquially as “Citizens United 2.”

The Court’s 2010 decision Citizens United v. Federal Election Commission struck down limits on campaign spending by corporations, confirming prior holdings that corporations enjoy rights of free speech. It’s a hugely controversial decision, both for its bottom line holding and for how the Court navigated its way there, but it’s the law of the land, as became apparent in this year’s case. In American Tradition, decided June 25, 2012, the Supreme Court relied on Citizens United to reverse a decision of the Montana Supreme Court upholding a statute that had, for 100 years, prohibited corporate political spending in that state. The Court declined the opportunity to clarify or modify Citizens United, as the dissent urged.

Two Montana judges who dissented from the majority in the underlying state casewrote eloquently about stare decisis and the rule of law.

Judge James Nelson made clear his disagreement with the Citizens United holding, but spoke about the state court’s obligation to apply it:

Whether we agree with the Supreme Court’s interpretation of the First Amendment is irrelevant. In accordance with our federal system of government, our obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or for worse, binding on this Court and on the officers of this state, and to apply the law faithful to the Supreme Court’s ruling.

Separately, Judge Beth Baker wrote:

I believe it is our unflagging obligation, in keeping with the court’s duty to safeguard the rule of law, to honor the decisions of our nation’s highest court.

The dissenters didn’t see a factual basis to distinguish the Montana case from Citizens United, as the majority did, and, despite an outcome they wish were different, demonstrated fidelity to the rule of law.

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Supremacy of federal over state law was the basis for the decision in Arizona v. United States, also released June 25. At issue was an Arizona statute dealing with illegal immigration that contained two provisions making certain conduct criminal under state law, one giving state authorities enhanced powers to conduct warrantless arrests, and a fourth, the so-called “show your papers” provision, requiring officers making an arrest to ascertain, under some circumstances, the apprehended person’s immigration status, .

I know you students were conversant with key parts of the U.S. Constitution including the Article I power of Congress to “establish an uniform Rule of Naturalization,” the inherent power of the federal government to conduct foreign relations, and the Supremacy Clause: all these came into play in the Court’s decision.

As to the Supremacy Clause, the Court said it:

provides a clear rule that federal law “shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of laws of any State to the Contrary notwithstanding.”

On this basis the Court struck down three of the contested provisions. From a teaching perspective, I couldn’t ask for a better illustration of the Supremacy Clause being applied in our federal system. As to the “show your papers” provision, the Court demonstrated judicial restraint by holding that Arizona should have the opportunity to construe the provision’s meaning and enforce it before the Court considers a constitutional challenge. Safeguards are built into the statute and the Court will wait to see if they are adequate for protecting individual rights.

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Finally, in the June 28 decision that garnered the most headlines, the Supreme Court upheld the federal health care statute in National Federation of Independent Business v. Sebelius. In class we discussed the Constitution’s grant to Congress of power to “regulate commerce with foreign Nations, and among the several states” and to “lay and collect Taxes.” The government argued that each of these powers was an adequate basis for Congress’s action.

In advance of the decision, most commentators assumed the commerce clause would be the make-or-break argument. Instead, the Court pivoted and found authority for the statute in the taxation clause. With our extensive class discussion of constitutional powers, you will appreciate the importance of grounding legislative action on an adequate basis.

The Court’s opinion also contains a lengthy discussion of the commerce clause, with the majority’s finding no basis there for regulation of health care, even though that industry represents close to 20% of the country’s economy. The majority also imposed constraints on Congress’s spending power in connection with Medicaid expansion. Neal Kaytal’s piece, In Health Care Ruling, a Phyrric Victory, was particularly thoughtful as it foresees the decision providing the ground work for future challenges to federal statutes. Stay tuned for future developments.

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To all of you students – thank you for being attentive and interested, and interesting (and for teaching me about the Kardashians). Thank you to Zack Edwards, our teaching assistant who provided the historical context for these recent decisions, and to Andrew Grainger, my husband, for sharing the teaching and making every legal conversation more illuminating.

updated: 6 months ago