L2 CONGRESS: "An Important New Limit on the Commerce Clause", summary

An Important New Limit on the Commerce Clause

1. Introducing a document:

This document is a press article extracted from / taken from the NY Times. It is entitled “An Important New Limit on the Commerce Clause” and was published on June 28^th, 2012. 

2. Summary:

Paragraphs 1 and 2:

In June, the US Supreme Court rejected the idea that the Commerce clause of the U.S. Constitution (Article 1 Section 8) empowered congress to force people to buy health insurance.

However, many constitutional scholars disagree with (what is now referred to as) the “broccoli argument” and (further) claim that this Supreme Court decision goes against / contradicts / (is not in keeping with) 75 years of Supreme Court jurisprudence (l. 11).

Paragraphs 3, 4 & 5: "structure de l’opposition"

Actually, the diverging opinions of scholars on the power of the commerce clause reflect the ideological differences between conservatives and liberals:

-       Conservative justices intend to limit the power of Congress, whereas liberal scholars are in favor of giving Congress more expansive powers.

-       Conservative justices wish to limit the power of Congress, contrary to liberal scholars who are in favor of giving Congress more expansive powers.

-       Unlike liberal scholars who are in favor of giving Congress more expansive powers, conservative justices wish to limit the power of Congress.

-       Conservative justices wish to limit the power of Congress. On the contrary, liberal scholars are in favor of giving Congress more expansive powers.

-       Paragraphs 6, 7 & 8:

In spite of this ruling, the Supreme Court had to uphold the act as Congress’s taxing power still empowers Congress to force people to buy health insurance.

(Chief Justice Roberts explained that the “penalty” for not buying health insurance functioned as a tax).

If ‘Obamacare’ could not be struck down, the limitation of the commerce clause is nonetheless a victory for conservatives and libertarians who want to limit the power of Congress.

Emboldened by this victory, they are now likely to focus their attention on the taxing power of Congress. 

L3 FIRST AMENDMENT: United States v. Alvarez (2012) Summary

In United States v. Alvarez (2012), the questions to the court is whether the U.S. Government’s Stolen valor Act, which makes it a crime to falsely claim receipt of military decorations, contravenes the First amendment by representing a restriction on the Freedom of speech.

As the Stolen valor Act represents a content-based restriction on speech, the onus is on the government to prove the constitutionality of the act, and the Supreme Court applies the “most exacting” level of scrutiny to determine whether the act is constitutional or not.

The Government argued that false statements have no value and therefore have no First Amendment Protection.

However, the U.S. Government’s argument did not prevail (the court rejected the U.S. Government’s argument). The Court considered that “false statement” is not part of the few categories of speech which are unprotected by the First amendment (such as obscenity, fraud, true threats, and speech presenting some grave and imminent threat to the government) and which the government has the power to prevent.

To justify its restriction on false statements, the government should be able to demonstrate that there is direct link between a false statement and an injury. However, the U.S. government could not refer to a previous ruling where the Supreme Court had to determine the constitutionality of an act which exclusively targeted falsity.

In the earlier cases, the false statements had been refused protection not simply because they were false, but because they were part of another criminal offense or civil wrong (fraud, libel). In all those previous cases, there was a clear connection between a false statement and a legally recognizable harm (cf. "The question of false statement was not irrelevant but not determinative").

In contrast, the Stolen Valor Act makes certain speech illegal, no matter what the circumstances or the motivations of the speaker. Declaring the Stolen Value Act constitutional, would thus give the government the power to establish a list of subjects about which false statements are punishable. (Slippery Slope argument).

Finally, whenever the Government seeks to regulate protected speech, the restriction must be the “least restrictive means among available, effective alternatives”. This does not prove to be the case either.

L2 THE U.S. CONSTITUTION: Constitutional Principles: Consent of the Governed

L2 THE U.S. CONSTITUTION: Six principles of the U.S. Constitution

L2 THE U.S. CONSTITUTION: Introduction to the United States Constitution