Talk:National Federation of Independent Business v. Sebelius

Merge Proposal

The following discussion is closed. Please do not modify it. Subsequent comments should be made in a new section. A summary of the conclusions reached follows.

The result was merge from Department of Health and Human Services v. Florida and Florida v. Department of Health and Human Services -- SPat ^talk 23:33, 28 June 2012 (UTC)

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I propose that the two articles Florida v. Department of Health and Human Services and Department of Health and Human Services v. Florida be merged into this article; the SCOTUS has decided on NFIB v. Sebelius and mentioned the other two as footnotes. See here. SPat ^talk 16:36, 28 June 2012 (UTC)

Pedantic quibble perhaps, but your comment that the other two were merely "mentioned" is inaccurate. All of these cases were instead decided together by one opinion, with National Federation of Independent Business v. Sebelius merely being the lead caption (one of the cases had to be) and thus used in the citation to the opinion. Which is not to say that they shouldn't be merged here, but let's just use the right language in describing them. postdlf (talk) 17:34, 28 June 2012 (UTC)

Agreed. I don't have enough experience in this area to appreciate the difference :) What I meant to say is that since the SCOTUS has effectively merged the cases themselves, we should do the same with the articles. SPat ^talk 17:50, 28 June 2012 (UTC)

I think that the vast majority of the readership doesn't really understand or care about the process of granting cert and consolidation for appeals, but I think it would be in the best encyclopedic interest of the site to have a single page devoted to all of the cases, since there was just one ruling anyway. I doubt that future legal scholars will refer to the individual cases, it's more likely that they will use the lead caption or consolidate all of them like the Civil Rights Cases (perhaps like here: Patient Protection and Affordable Care Act Cases ) Nizate (talk) 18:05, 28 June 2012 (UTC)

Department of Health and Human Services v. Florida should be an easy and uncontroversial merge. Florida v. Department of Health and Human Services is going to be annoying and may ultimately not be merged. --MZMcBride (talk) 19:35, 28 June 2012 (UTC)

I support a merge, as any information regarding the Supreme Court's decision is identical for all three cases. With the SC merging the cases, I believe we should do the same, in creating a single, convenient article without splitting the information into separate pages. Reywas92^Talk 19:37, 28 June 2012 (UTC)

I support the proposed merge -- otherwise we are going to have to repeat the same information in multiple articles. Legal scholars in this situation usually cite the "lead case," which is National Federation of Independent Business v. Sebelius. Here are the cases that were decided together by the Supreme Court on June 28, 2012:

1. National Federation of Independent Business v. Sebelius, no. 11-393.

2. Department of Health and Human Services v. Florida, no. 11-398.

3. Florida v. Department of Health and Human Services, no 11-400.

Yours, Famspear (talk) 20:07, 28 June 2012 (UTC)

Merge. The three cases were decided together, and they should all be in one article. Fullmetal2887 ^{(discuss me)} 21:50, 28 June 2012 (UTC)

I'm gonna be bold here and close the discussion - I hope no one minds. If I've screwed up somewhere with the content, kindly go to the old articles' history and re-add. Thanks, SPat ^talk 23:33, 28 June 2012 (UTC)

The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Add a category?

Since this apparently deals with a tax, should this go under Category:Taxation in the United States?

No. If all legislation and court cases that touch the tax code were put under that category then the category would swallow up huge swaths of American law that have very little to do with taxes. For example, the mortgage interest deduction is implemented as a tax incentive, but you don't see it under that category, since it's really about home ownership. I'm sure there are thousands of other examples. --Nstrauss (talk) 22:01, 9 July 2012 (UTC)

Draft holding

Before putting it straightaway into the article's infobox, I'd like to first post here a summary I wrote of the court's decisions in these cases, and ask if anybody has any suggestions for improving it. It runs a bit long, but I wanted to make sure I didn't miss anything:

26 U.S.C. §5000A, which levies a "shared responsibility payment" on certain individuals not possessing health insurance, functionally operates as a tax, rendering the penalty valid under the Taxing and Spending Clause. The Commerce Clause may not presuppose involvement in commerce in order to regulate the inactivity of individuals, thus limiting the enforcement of such mandates to that which is allowed in the tax code. The Necessary & Proper Clause does not grant Congress any additional powers in and of itself, and thus cannot support the mandate. 42 U.S.C. §1396d(a), PPACA's extension of Medicaid eligibility, constitutes a "transformative" change in the scope of Medicaid's provisions, and is therefore severable from the program's pre-existing framework. §1396d(c), which may cancel all federal Medicaid funds sent to states that do not implement the expansion, fails the coercion test for federal regulation of joint state-federal programs, and is an invalid use of the Spending Power. A tax must be directly labeled as such by Congress to fall under the purview of the Anti-Injunction Act if its applicability is not otherwise endorsed. Eleventh Circuit affirmed in part and reversed in part.

Since other coercion tests exist, such as the one for religious symbols on public grounds first articulated here, I thought it useful to include the bit about it concerning joint federal-state programs. Perhaps other readers may think it unnecessary & implied in context? Alternatively, it could read §1396d(c)...fails Dole's coercion test, thereby invalidating Congress's use of the Spending Power. I'm also unsure how many links to include within it, if any. For example, should the Anti-Injunction Act be linked to there, when there is another link to it later in the article? Does the fact the infobox is at the top mean it takes priority with respect to WP:Overcite? 68.58.63.22 (talk) 13:23, 29 June 2012 (UTC)

Another potential wording, from User:Fullmetal2887: The individual mandate provision of the Patient Protection and Affordable Care Act is tantamount to a tax, and therefore constitutional; however, the Anti-Injunction Act does not apply. Congress may not, in general, regulate commercial inactivity under the Commerce Clause. Congress may not withhold all Medicaid funding from states refusing to comply with the PPACA's Medicaid expansion provision, but rather only the new funding provided under the PPACA.

The above has the benefit of being shorter than my suggestion. However, I think it is important to also include the Court's new interpretation of the more general applicability of the Anti-Injunction Act, as well as it's new views of the elastic clause, which appears to have been restored to the position it held under McCulloch. I also think that Roberts & the 4 conservative dissenters were very explicit that inactivity cannot be regulated by the Commerce Clause. Can you clarify what your wording was considering with the qualification the the ban was just "in general?" 68.58.63.22 (talk) 04:29, 30 June 2012 (UTC)

I meant that in this case, the Court held that Congress could regulate commercial inactivity, because the penalty for not purchasing insurance could be construed as a tax. However, this ruling must be narrowly construed. In general, Congress may not regulate commercial inactivity, for example by imposing criminal penalties, as the Commerce Clause does not grant Congress this authority. I'd be okay with removing the words "in general" from my proposed wording. Fullmetal2887 ^{(discuss me)} 08:06, 30 June 2012 (UTC)

Regarding the potential wording from User:Fullmetal2887 I would like to suggest to include the following bold sentences:

The Anti-Injunction Act does not apply because the Patient Protection and Affordable Care Act's labeling of the individual mandate as a "penalty" instead of a "tax" precludes it from being treated as a tax under the Anti-Injunction Act. The individual mandate provision of the PPACA is tantamount to a tax, and therefore constitutional. Congress may not, in general, regulate commercial inactivity under the Commerce Clause. The individual mandate vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power, but such an expansion of federal power under the Necessary and Proper Clause is not a “proper” means for making the PPACA’s other reforms effective. Congress exceeded its Spending Clause authority by forcing states into an all-or-nothing choice by threatening to revoke all of their Medicaid funding if they did not participate in the Medicaid expansion. Congress may not withhold all Medicaid funding from states refusing to comply with the PPACA's Medicaid expansion provision, but rather only the new funding provided under the PPACA. --P3Y229 05:31, 1 July 2012 (UTC)

I think the sentence beginning with "The individual mandate vests..." is unnecessary, but otherwise, I like it. Fullmetal2887 ^{(discuss me)} 00:59, 2 July 2012 (UTC)

Responded to your comment by adding "under the Necessary and Proper Clause" in "The individual mandate vests..." sentence. I would like to insert this draft holding version into the Court's holding. Any objections? --P3Y229 08:34, 2 July 2012 (UTC)

P3Y229's version sounds good. Logical order, concise, and covers all the key points. Difu Wu (talk) 15:36, 2 July 2012 (UTC)

While I understand that the opinion itself used the phrase "extraordinary ability", it does come off as rather subjective, and I don't think it's necessary here anyway. "Unprecedented" would have been objective, "extraordinary" is not. I would also clarify for readers which enumerated power the elastic clause was being suggested for. Describing the mandate, I think it a little better to describe it as being "functionally" a tax rather than "tantamount", because while they both convey a similar meaning, the opinion uses the phrase "functional approach", as first used in United States v. Constantine. Seeing as this is the very first case to enforce it, I would also include why the Medicaid expansion penalty was voided- it failed the coercion test. I believe it is also customary to include the Circuit Court the primary case came from (in this case, the 11th circuit), and how this decision compares to theirs. While I would include them in the article, I suppose the exact number of the laws (e.g. §5000A) isn't necessary here.

So my proposed wording (using parts from above) would be:

The Anti-Injunction Act does not apply because the Patient Protection and Affordable Care Act's labeling of the individual mandate as a "penalty" instead of a "tax" precludes it from being treated as a tax under that act. The individual mandate provision of the PPACA functions constitutionally as a tax, and is therefore a valid exercise of the taxing power. Congress exceeded its Spending Clause authority by coercing states into an all-or-nothing choice by threatening to revoke all of their Medicaid funding if they did not participate in the Medicaid expansion. Congress may not withhold all Medicaid funding from states refusing to comply with the PPACA's Medicaid expansion provision, but rather only the new funding provided under the PPACA. Eleventh Circuit affirmed in part and reversed in part.

Nstrauss has brought to our attention in the below section that the consensus of 5 justices regarding the Commerce & elastic clauses may not be binding. So I have, for now, removed the following sentences from my proposed wording until this is cleared up: Congress may not regulate (individual or all?) commercial inactivity under the Commerce Clause. The individual mandate vests Congress with the ability to create the "necessary" predicate to the exercise of an enumerated power, but such an expansion of federal power under the elastic clause is not a “proper” means (under the Commerce Clause) for making the PPACA’s other reforms effective. 68.58.63.22 (talk) 19:09, 2 July 2012 (UTC)

I like your version, but there are two things I would like to address.

1.) In the first sentence you changed "under the Anti-Injunction Act" to "under that act". For me it is no clear whether "that act" refers to the Anti-Injunction Act or the PPACA. For clarity's sake I suggest not to write "under that act", but "under the Anti-Injunction-Act".

2.) 5 judges agreed that the Commerce Clause applies only to commercial activity (see Chief Justice Roberts opinion p. 20-21 "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority" and joint opinion of Scalia et al page 2 "to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity") These 5 Judges also agreed for different reasons that the individual mandate cannot stand under the Necessary and Proper Clause. (For Roberts see Syllabus p. 3 “Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. […] The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective." and joint opinion of Scalia et al page 9 "the Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce. And the last two of these cases show that the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power. ")

You excluded the Commerce as well Necessary and Proper Clauses sentences because the 5 justices consensus maybe not binding. To remedy this problem I would like to suggest a sentence a la "A majority of the Court, consisting of five judges, held that ..." or "A court majority consisting of five judges found that..."

For the reasons above mentioned I propose this holding version:

The Anti-Injunction Act does not apply because the Patient Protection and Affordable Care Act's labeling of the individual mandate as a "penalty" instead of a "tax" precludes it from being treated as a tax under the Anti-Injunction Act. The individual mandate provision of the PPACA functions constitutionally as a tax, and is therefore a valid exercise of the taxing power. A court majority consisting of five judges found that the individual mandate cannot be upheld under the Commerce Clause because the clause applies only to regulation of commercial activity and hence Congress cannot regulate commercial inactivity. The same majority found for different reasons that the individual mandate cannot be upheld under the Necessary and Proper Clause: Either because the individual mandate is not a “proper” use of congressional power under the Commerce Clause or because congressional action violates the sovereignty of the States and background principle of enumerated (and hence limited) federal power. Congress exceeded its Spending Clause authority by coercing states into an all-or-nothing choice by threatening to revoke all of their Medicaid funding if they did not participate in the Medicaid expansion. Congress may not withhold all Medicaid funding from states refusing to comply with the PPACA's Medicaid expansion provision, but rather only the new funding provided under the PPACA. Eleventh Circuit affirmed in part and reversed in part. --P3Y229 22:27, 2 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

I'd be alright with this, and I see your point about the first sentence. However, I'd like to see if one of the people who are placing an emphasis on something having to be in the "Opinion of the Court" would agree. If they don't, we might end up in an edit war. I'm looking to see if a consensus emerges in the below section whether to count the views on those clauses as being official, or precedent-setting. While we're waiting for that, you may wish to put in everything except the third & fourth sentences (the ones covering the controversial clauses).

Two bits that I included in my initial draft- "A tax must be directly labeled as such by Congress to fall under the purview of the Anti-Injunction Act if its applicability is not otherwise endorsed." (a more general application of the AIA ruling) and the mention of the Medicaid extension being regarded as "transformative" (the reason why it was thought of as severable, and one of two reasons why it was coercive (the other being Medicaid was too 'big' a portion of most state budgets)) I think are important. But as long as those points are detailed in the main article then they don't need to be in the holding summary. 68.58.63.22 (talk) 23:41, 2 July 2012 (UTC)

Added the uncontroversial sentences as a preliminary holding version. Left notice that prior to any changing or expanding of this version editors shall add their suggestions at this section of the talk page before editing back in. Please feel free to add the above mentioned bits you deem important to the preliminary holding version, if they don't appear detailed in the main article. --P3Y229 01:04, 3 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

I've found an earlier case for the existence of a "coercion test" for the Spending Clause- Steward Machine Company v. Davis, which came down 50 years before Dole. I'm inclined to change the link in the holding because I think it's usually best to go with the earliest "precedent-setting" case if possible, and that Wiki page happens to be more detailed than the one for Dole. On the other hand, Dole is more recent so it's probably more referenced & discussed in blogs, classrooms, etc. than Steward, which I hadn't heard of until recently. Any objections to this change? 68.58.63.22 (talk) 03:37, 7 July 2012 (UTC)

If there are not, I would like to propose the following replacement for the part involving the Medicaid expansion ruling. This integrates the new two-pronged 'test' for coercion- 1.) Threatened (or explicit) cuts may not have too distant a relation to what Congress wants the states to do, and 2.) the quantitative impact of the threatened cut(s), as a percent of state budgets, may not be too severe. Roberts declined to draw the line for #2, but it would be somewhere between .5% (from Dole) and 10% (the smallest portion Medicaid contributed to a given state budget).

Congress exceeded its Spending Clause authority by coercing states into a transformative change in their Medicaid programs by threatening to revoke all of their Medicaid funding if they did not participate in the Medicaid expansion, which would have an excessive impact on a state's budget. Congress may only withhold from states refusing to comply with the PPACA's Medicaid expansion provision the additional funding for Medicaid provided under the PPACA. 68.58.63.22 (talk) 04:16, 7 July 2012 (UTC)

I have no objections to your change. I found a solution for your problem regarding the two coercing cases. The solution is linking both cases (see above in your proposal version).

To complete the preliminary holding version I drafted this fill in version, taking into account the version by talk and my above comment to it:

In order for someone or something to be subject to the Commerce Clause, there must be an “activity”, because the power to regulate “commerce” presupposes that there is some commerce going on. Congress has the power to regulate actual commerce, but it may not call commerce into being so that it can be regulated nor use the commerce clause to compel persons to engage in commerce. Any power exercised under the Necessary and Proper Clause cannot be self-standing, but must be an incident of some other power which the Constitution grants to Congress. Although necessary for the financial viability of the Act, the individual mandate is not a proper use of congressional power under the Commerce Clause. Congress exceeded its Spending Clause authority by coercing states into a transformative change in their Medicaid programs by threatening to revoke all of their Medicaid funding if they did not participate in the Medicaid expansion, which would have an excessive impact on a state's budget. Congress may only withhold from states refusing to comply with the PPACA's Medicaid expansion provision the additional funding for Medicaid provided under the PPACA.

Any objections to this change? If not, I'm gonna insert it in the the preliminary holding the day after tomorrow. --P3Y229 20:42, 7 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

I'm a little confused by the structure of this thread and what P3Y229 is currently proposing, but I have two concerns. The first is that since the parts of the Roberts opinion about the Commerce Clause were not the opinion of the Court (see thread below), they CANNOT contribute to the holding. Only the Court can hold something, no individual justice can. Therefore any reference to the Commerce Clause should be removed. Yes, there are non-holdings that end up being treated as precedent in future cases, but that does not make them holdings.

Second, holdings should never include the word "because." "Because" implies that what comes after it is the reasoning, and holdings and reasoning are inherently mutually exclusive. One way to solve this problem is to change "because" to "where" or "when." But you still have to make sure that what comes afterwards is necessary, since a holding is a rule that is necessary to arrive at the court's decision. --Nstrauss (talk) 21:55, 9 July 2012 (UTC)

Re thread structure: I just follow the examples above where a proposial version was proposed and then the reactions were posted.

Re current proposal: My intend was/is to complete the current holding version in the article information box (refered above as preliminary holding version) by including aspects of the Commerce Clause and the Necessary and Proper Clause outlined in the court ruling based on this site and this site.

In the thread below it was written: "On pgs. 64-65 of the opinion (for the PDF of all the opinions posted on the court's website), at the very end of the "majority" opinion, just below & separated from Part IV is a summary of everything above. Included in that section is the phrase: The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. The elastic clause is not mentioned there. At the end of that section, it says It is so ordered. I'm guessing this section is why so many news sources are reporting that the court placed this limit on the Commerce Clause. Are they mistaken? Did Roberts make a mistake when writing that in there?" You answered these questions so: "Technically speaking the Court doesn't order an opinion, it orders a judgment. So when the Court writes "It is so ordered," it is referring to the judgment [...]". My queston: Can The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. be used for the completion of the holding? I ask because you called pages 64-65 "Court [...] judgement" and court judgement is for me synonymous with court holding.--P3Y229 01:01, 10 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

P3Y229, a judgment and a holding are quite different things. A judgment is a final outcome, e.g. "P3Y229 owes Nstrauss $1,000,000." In this case the judgment is "The judgment of the Court of Appeals for the Eleventh Circuit is affirmed in part and reversed in part." Everything else is opinion. An opinion of the Court may contain holdings (rules). --Nstrauss (talk) 21:30, 12 July 2012 (UTC)

"Opinion of the Court"

I would like to make clear that Roberts' opinion is only the "Opinion of the Court" with respect to Parts I and II (introduction) and III-C (applicability of Spending Clause to individual mandate). This means that if there is to be a section called "Opinion of the Court" then the other stuff (Commerce Clause, Medicaid provision) must be moved into another another section. Perhaps a better way to do this would be to rename the section "Roberts Opinion" and indicate which sections were the Opinion of the Court and which ones were his own. --Nstrauss (talk) 22:12, 29 June 2012 (UTC)

There was no single majority opinion that encompassed everything. For example, regarding the Commerce & elastic clauses, the Ginsburg opinion was a "dissent" because it dissented from the majority view of Roberts, Scalia, Kennedy, Thomas, and Alito that those clauses could not sustain the mandate. However the Scalia et al. opinion was a "dissent" from the Roberts-Ginsburg-Breyer-Sotomayor-Kagan position that the mandate & its penalty are a valid exercise of the taxing power. While it's less messy and the preferred path, the court does not need to issue a single opinion for everything it's deciding. The court's "opinion" is whatever 5 justices can agree to. 5 agreed to limit the commerce clause, 5 agreed to uphold the mandate as a tax.

Regarding the Medicaid provision, it's a little complicated, but basically 5 justices were able to agree with a compromise that the expansion is constitutional but optional, because Ginsburg & Sotomayor agreed to vote with Roberts' plurality on the "remedy question." A better explanation of this is here.

So basically, because Roberts was in every sort of majority (Commerce, tax, Medicaid, AIA, etc.) the "Roberts Opinion" is, for all intents and purposes, the "Opinion of the Court." 68.58.63.22 (talk) 05:00, 30 June 2012 (UTC)

This is the common practice that the Court uses when there is a majority on the final ruling, but disagreement on the all the reasons why. They release one single "Opinion of the Court", but it is broken down into letter sections, and the other Justices then identify which sections they agree or join with, and which ones they do not. Zzyzx11 (talk) 17:41, 1 July 2012 (UTC)

The real problem is not with the label "Opinion of the Court" but with the description of it as a "5-4 decision", when in fact the Court held 9-0 that the anti-injunction act didn't apply, held 5-4 that the mandate was constitutional for various reasons, and 7-2 that the Medicaid expansion penalty was not constitutional. Bmclaughlin9 (talk) 21:18, 1 July 2012 (UTC)

Having re-skimmed the opinion, Nstrauss is right. Everything was a 5-4 decision, because Alito, Kennedy, Scalia, and Thomas refused to sign on to anything, apparently out of spite. Which is strange, because their dissent makes clear they would have agreed with Roberts on the part concerning the commerce & elastic clauses. Not signing on to Part II means that technically, the AIA part was also a 5-4 decision. The difference being that the dissenting 4 thought it inapplicable b/c the mandate was not a tax at all, and the majority b/c it only functioned as a tax. The distinction is important because it does set a firm precedent as to how lower courts may apply the AIA to suits about any future "penalty-taxes". Similarly, the Medicaid expansion compromise (constitutional but optional) was also a 5-4 decision. While Part IV was not labeled as being part of the "Opinion of the Court", I would argue that because of how Ginsburg & Sotomayor later joined them, it effectively is. The other 4 dissenters differed because they thought the granting of the expansion was unconstitutional as part of the wider ACA, whereas the others did the compromise which only ruled the withholding of funds unconstitutional. So it wouldn't be accurate to describe that as a 7-2 decision. 68.58.63.22 (talk) 20:35, 2 July 2012 (UTC)

You're roughly correct, except it's a little more straightforward than that. The rule is that the lower courts are only bound by the words of the Court. The Court says right up front (as it always does) which parts are in its own voice (namely, Parts I, II, and III-C, and the judgment). Therefore those parts are binding on lower courts and the other parts are not. --Nstrauss (talk) 16:50, 3 July 2012 (UTC)

I hate to say it but 68.58.63.22, Zzyzx11, and Bmclaughlin9 are all incorrect here. Strictly speaking only parts I, II, and III-C were the Opinion of the Court. That is what the Court said on page 1 of the opinion, so that is a fact. From a practical perspective lawyers will be arguing about the precedential value the remaining portions of the opinion, but that doesn't change the facts. There are many decisions by the Supreme Court that have no Opinion of the Court at all, just a judgment. For example, the Court released United States v. Alvarez on the same day but gave no Opinion of the Court, hence there is no reference to the "Opinion of the Court" in that WP article. In this case, the other conservatives could have joined Roberts on the other parts of his motion to make his full opinion the Opinion of the Court but they chose not to. Some background for their decision is in this breaking news story. --Nstrauss (talk) 18:19, 2 July 2012 (UTC)

On pgs. 64-65 of the opinion (for the PDF of all the opinions posted on the court's website), at the very end of the "majority" opinion, just below & separated from Part IV is a summary of everything above. Included in that section is the phrase: The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. The elastic clause is not mentioned there. At the end of that section, it says It is so ordered. I'm guessing this section is why so many news sources are reporting that the court placed this limit on the Commerce Clause. Are they mistaken? Did Roberts make a mistake when writing that in there? 68.58.63.22 (talk) 20:58, 2 July 2012 (UTC)

Technically speaking the Court doesn't order an opinion, it orders a judgment. So when the Court writes "It is so ordered," it is referring to the judgment, which is the line before: "The judgment of the Court of Appeals for the Eleventh Circuit is affirmed in part and reversed in part." --Nstrauss (talk) 16:43, 3 July 2012 (UTC)

On pg. 126 of the slip opinion, near the end of Ginsburg's opinion, she writes "I therefore concur in the judgment with respect to Part IV–B of the Chief Justice’s opinion." Therefore, it would seem Part IV-B is also (in addition to Parts I, II, III-C) part of the "Opinion of the Court", unlike what it says at the top. It seems like there's a few inconsistencies in that slip... 68.58.63.22 (talk) 21:46, 2 July 2012 (UTC)

As Justice Ginsburg says, she concurred with the judgment in Part IV-B, not with the opinion. She's effectively saying that she agrees with the outcome but not with the reasoning. --Nstrauss (talk) 16:43, 3 July 2012 (UTC)

I agree with Nstrauss here. Quote from Slip opinion:

CHIEF JUSTICE ROBERTS announced the judgment of the

Court and delivered the opinion of the Court with respect

to Parts I, II, and III–C...

Presenting other parts of Roberts opinion as “Opinion of the Court” is misleading. Yes, dissenters agreed with him about Commerce Clause, but they did not formally joined his opinion. At the top of every page here is a note about what is “Opinion of ROBERTS, C. J.” and what is “Opinion of the Court”.--В и к и T 20:59, 2 July 2012 (UTC)

See pg. 64 of that slip opinion. That section is written as if it's the opinion of the court, since Roberts doesn't have the power to "so order" any of that on his own. Did Roberts make a mistake? Is this evidence of a last minute switch by Roberts, or by the conservatives not to join him on the Commerce Clause part? 68.58.63.22 (talk) 21:06, 2 July 2012 (UTC)

See above for my response to this. It's not a mistake, and the Court ordered the judgment, not the opinion. --Nstrauss (talk) 16:43, 3 July 2012 (UTC)

Who's on first? Perhaps we need to take these one at a time.

Anti-Injunction Act. Roberts holds AIA does not apply. Ginsberg and her trio agree. On that much we agree. The Scalia quartet takes the same position under the heading "Anti-Injunction Act": "we have no difficulty in deciding that these suits do not have 'the purpose of restraining the assessment or collection of any tax.'" and in a footnote to that, criticizing the amicus who defended the AIA's applicability for making what they found to be a self-contradictory point that "seems to us to confirm the inapplicability of the Anti-Injunction Act." The only thing that's odd is that Scalia et al presented an opinion that was labeled a dissent, when in fact they concurred on this question, clearly not the major business of the day. That's 9-0 for the inapplicability of the AIA. On SCOTUSblog, that same amicus, the losing attorney on this point, says: "Amidst nearly 200 pages of disagreement, the Court unanimously concluded that the Anti-Injunction Act (AIA) did not apply and that the Court could decide the merits." Thoughts? Bmclaughlin9 (talk) 21:09, 2 July 2012 (UTC)

I would agree, but there are some here that hold the view that even if a majority of justices concur on something, if it's not actually labeled "Opinion of the Court" and signed on to, then it's not official or binding. Specifically, only 5 (not 9) justices signed on to Part II, the part that talked about the AIA. Their reasoning also differs slightly. Going forward, courts will act on the reasoning those 5 used to dismiss the AIA. From the article you posted: "Perhaps this exception will end up being narrow, but whenever Congress decides to enact anything in the Tax Code labeled a penalty, it will have to be on guard against inadvertently taking the AIA out of the picture." If Scalia's quartet was the majority opinion, nothing would have changed in that respect, because ACA's penalty wouldn't have been a valid tax in the first place. 68.58.63.22 (talk) 21:28, 2 July 2012 (UTC)

I thought we were not discussing what is or is not binding, but how the justices divided on the questions. Whether or not they shared the same reasoning is not the issue if the question is who was thumbs up and who was thumbs down. If we then discuss these opinions issue by issue as I suggested below, we can get into the weeds as needed. If you call this 5-4, you're saying 4 thought AIA did apply, and if you say 5-0 you ignore what Scalia et al said. When the case is cited, an opinion will be cited, not the #-# opinion. The count doesn't change the opinions nor vice versa.. Bmclaughlin9 (talk) 21:54, 2 July 2012 (UTC)

Individual mandate. Is there anyone who doesn't think this was 5-4, Roberts and 4 liberals vs. the 4 conservatives? We needn't consider the fact that the liberal 4 would have upheld it under the commerce clause, as Roberts would not. They all 5 agreed it could be upheld under "lay and collect taxes" (Art. I, §8, cl. 1). Bmclaughlin9 (talk) 21:23, 2 July 2012 (UTC)

Agreed, this is the most clear of them all. I would add that Ginsburg wrote in her opinion that since the majority reached the opinion that the mandate was upheld as a tax, it was not necessary to rule on the Commerce Clause debate. But since Roberts did do that, she went on to talk about it, implying she & the other three would uphold the mandate under that clause. 68.58.63.22 (talk) 21:46, 2 July 2012 (UTC)

Medicaid extension. We agree, I believe, that Ginsburg and Sotomayor are the only ones fine with the Medicaid expansion as written. Roberts is not and he's joined by Breyer and Kagan. What of the 4 horsemen conservatives? The conservatives discuss this under the heading "Medicaid Expansion" at p 172: "In sum, it is perfectly clear from the goal and structure of the ACA that the offer of the Medicaid Expansion was one that Congress understood no State could refuse. The Medicaid Expansion therefore exceeds Congress’ spending power and cannot be implemented." They continue: "Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional." (emphasis added) So 7-2. And that's the 4 conservatives counting themselves in the majority on this one, despite not giving Roberts the satisfaction of associating themselves with a single word he's written.

Bmclaughlin9, I have a general objection to your analysis here. We can talk all we want about how many justices supported or believed what, and what is binding for future cases, but that doesn't change the fact that, as the Court said explicitly, only Parts I, II, and III-C of Justice Roberts' opinion are the Opinion of the Court. The analysis you've started here is a good one but it belongs in a separate talk thread so as not to tangle the issues. --Nstrauss (talk) 16:43, 3 July 2012 (UTC)

I have taken the liberty to separate "Opinion of the Court" from "Opinion of Chief Justice Roberts" as discussed above, so the article is now legally accurate. The opinion of the court consists of introduction (part I), non-applicability of the AIA (part II), and the individual mandate upheld by the Taxing Clause (part III-C). C.J. Roberts's opinion consists of individual mandate unsupported by the Commerce Clause or the Necessary and Proper Clause (part III-A), individual mandate must be construed as a tax on those without health insurance (part III-B), and the unconstitutionality of the Medicaid expansion (part IV). Difu Wu (talk) 17:20, 3 July 2012 (UTC)

This is an interesting article that talks about how the Commerce & elastic clause issues are effectively dicta rather than a holding. Part III-C, unquestionably part of the court's opinion, includes the sentence “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.” So it's not officially a holding, but Roberts writes as if it is, and the 4 liberals who joined him acknowledge that's the case, even if they may not agree. Again, is this just all a mistake? If this is actually dictum rather than an official, binding opinion, then how do we treat it?

One case that comes to mind that was made famous because of it's dictum is Santa Clara County v. Southern Pacific Railroad. The holding listed in the infobox there describes it (as is widely acknowledged) as the case that established the idea of corporate personhood, or at least confirmed its entrenchment. Just like the health care cases, the decision was technically rendered on a different basis (here the taxing rather than commerce power, in Santa Clara the CA state tax code, rather than the 14th Amendment). It nevertheless set a precedent every court since has followed, as acknowledged by some Justices.

I'm the last one to suggest our mainstream media is always completely truthful, but this is one takeaway from this case that seems to have been repeated in many places, and it's hard for us to ignore that completely. I don't think anyone can deny that, whether they graced it with their official seal of approval or not, there is a majority on the Court that believes in an activity/inactivity distinction for the consideration of commercial regulation. Although this is now widely known, we cannot integrate speculation into the article as to how lower courts will act on this knowledge. But until one of these conservative justices retires, everyone now knows there is a majority to strike down that type of commercial regulation, and it's hard to see that not shaping future case law and congressional actions. For that reason, and for how the 'court' chose to phrase that sentence in Part III-C, I believe it deserves some mention under the section "Opinion of the Court", if not the infobox. 68.58.63.22 (talk) 10:11, 5 July 2012 (UTC)

I think these are all good points that should go into a separate section (or subsection?) with a title like "How much of the Roberts opinion is the opinion of the court?" The Volokh Conspiracy article you point to has an interesting take, but it's just an opinion and there are other opinions out there that disagree. Clearly there is no consensus on the issue. As long as there is no consensus we should stick with what the Court says is the opinion of the Court (i.e. I, II, and III-C) and flag the controversy by presenting representative arguments on both sides. --Nstrauss (talk) 15:18, 7 July 2012 (UTC)

Structure

We are attempting to report a complex decision re multiple issues with shifting majorities using an outline better suited to simpler cases. Would the user be better served by an issue-by-issue presentation? Anti-injunction, then individual mandate, then Medicaid extension penalty. Bmclaughlin9 (talk) 12:33, 2 July 2012 (UTC)

Support the proposal. As far as I can see it the SCOTUS decision is a very complex one. An issue-by-issue presentation (Anti-injunction-Act, then individual mandate and finally Medicaid extension) would definetly help to reduce this complexity. I would suggest an explanation style along the lines of this explanation of the Medicad expansion by SCOTUSblog and this explanation.. --P3Y229 12:55, 2 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

Agree. Just a clearer way to go about things in this particular case. --Nstrauss (talk) 19:35, 2 July 2012 (UTC)

So this would be essentially nuking sections 3 Opinion of the Court and 4 Other opinions and replacing them with the sections 3a) Anti-injunction ruling, 3b) individual mandate ruling, 3c) Medicaid extension penalty ruling? I support that. Anyone volunteering to write a first draft? -- The Red Pen of Doom 14:03, 3 July 2012 (UTC)

I would prefer not nuking sections that separate out "Opinion of the Court" from "Other opinions", because the dissenting opinions are not enforceable and must be clearly distinguished. If necessary, we can flesh out the Court's ruling on the AIA, the individual mandate, and the Medicaid expansion by making subsection under "Opinion of the Court" and "Opinion of C.J. Roberts". The current structure preserves the structure as presented in the Court's slip opinion. Difu Wu (talk) 18:49, 3 July 2012 (UTC)

My understanding of the proposal was that within the subsections each would deal with the court's opinion and the dissenting opinion(s).

Our job is to make the subject matter understandable to a lay reader coming in, not to mimic the opinions of the court. -- The Red Pen of Doom 18:58, 3 July 2012 (UTC)

I agree with The Red Pen of Doom's understanding of the proposal. As mentioned above I suggest an explanation style along the lines of this explanation of the Medicad expansion by SCOTUSblog for each subsection. --P3Y229 20:38, 3 July 2012 (UTC)

I would support issue by issue presentation (i.e. AIA, individual mandate, Medicaid expansion) for the court's opinion (including Roberts's opinion) only. The dissenting opinions are not enforceable and simply do not matter. It is important for the lay reader to understand clearly the court's ruling only. Discussing the dissenting opinions along with the court's majority opinion could be confusing and give too much coverage to opinions that do not count, at the expense of opinion (the Court's majority) that actually counts. Difu Wu (talk) 14:33, 5 July 2012 (UTC)

while in the matter of legal precedence, the dissenting opinions do not matter, within the real world and the political battles therein, the dissents in this case DO matter. -- The Red Pen of Doom 15:22, 7 July 2012 (UTC)

I think there's no way to explain this case in any detail without including a discussion of all three of the major opinions (Roberts, Ginsburg, conservatives). --Nstrauss (talk) 07:13, 18 July 2012 (UTC)

Broccoli horrible

For anyone interested in the source/reference of Ginsburg's phrase:

http://bostonglobe.com/ideas/2012/06/30/where-did-supreme-court-get-its-parade-horribles/Y0jnIscamtgPEzO0PdtL9N/story.html

Bmclaughlin9 (talk) 22:17, 2 July 2012 (UTC)

There's also this very in-depth article: How Broccoli Landed on Supreme Court Menu --Nstrauss (talk) 16:29, 3 July 2012 (UTC)

Expansion of background section case National Federation of Independent Business v. Sebelius

I'm trying to expand the background section case National Federation of Independent Business v. Sebelius and need some help in this regard.

National Federation of Independent Business, et al. v. Kathleen Sebelius, Secretary of Health and Human Services, et al was a merger of several cases among them The National Federation of Independent Businesses [NFIB] v. Sebelius. The background case section states "The National Federation of Independent Business sued Kathleen Sebelius, the Secretary of Health and Human Services." There is however no source mentioned. I found this source which states: "The case currently before the Court, Florida v. HHS, is a consolidation of two separate lawsuits from the 11th Circuit Court of Appeals: The National Federation of Independent Businesses [NFIB] v. Sebelius and Florida et al. v. HHS. In the first case, two individuals and the NFIB, a nonprofit organization that represents small businesses, sued the Secretary of Health and Human Services, Kathleen Sebelius, arguing that the Constitution does not give Congress the authority to enact the individual mandate provisions of the ACA. In the second case, Florida and twenty-five other states sued, arguing that the ACA’s Medicaid expansion is unconstitutionally coercive on state governments."

SCOTUS's Date, Proceedings and Orders site for National Federation of Independent Business, et al. v. Kathleen Sebelius, Secretary of Health and Human Services, et al shows that the case numbers for The National Federation of Independent Businesses [NFIB] v. Sebelius and Florida et al. v. HHS are 11-11021 and 11-11067. The site states that both cases were decided by the United States Court of Appeals for the Eleventh Circuit on August 12, 2011. The United States Court of Appeals for the Eleventh Circuit Monthly Log site confirms this and makes clear that there is one judgement for both cases. The judgement of the United States Court of Appeals for the Eleventh Circuit states that its judgement are "Appeals from the United States District Court for the Northern District of Florida".

At this point I reached a dead end. I cannot find out when and where the National Federation of Independent Businesses allegedly sued Kathleen Sebelius in the United States District Court for the Northern District of Florida. I say allegedly because the NFIB issued a PDF file in which it stated "On May 14, 2010, Dan Danner, president and CEO of the National Federation of Independent Business, America’s leading small‐business association, announced NFIB would join the then 20 states (now 26) in a lawsuit challenging the constitutionality of PPACA." This quote and the prior research, esspecially my first source, leads to two questions:

1.) Did the National Federation of Independent Businesses really sue Kathleen Sebelius? I just ask myself: Did the NFIB sue Kathleen Sebelius in one lawsuit and joined the states in another lawsuit or did the NFIB not sue Kathleen Sebelius and joined instead the states in their lawsuit?

2.) Any suggestions how to find out when and where the National Federation of Independent Businesses allegedly sued Kathleen Sebelius in the United States District Court for the Northern District of Florida?

Thanks in advance. --P3Y229 00:00, 4 July 2012 (UTC)

References

"PPACA" vs "the PPACA"

I'd just like to flag that we have an internal inconsistency, with the act being called "PPACA" in some places and "the PPACA" in others. The PPACA page has the same inconsistency. I did a quick Google News search and noticed that most (but not all) newspapers are calling it PPACA, not "the" PPACA. --Nstrauss (talk) 19:25, 17 July 2012 (UTC)

Here's the decision. "PPACA", in any form, appears only two times. ACA appears about 60 times. I think, using the literature as our basis, we should use "ACA". -- Lord Roem (talk) 20:55, 17 July 2012 (UTC)

This might sound like a minor quibble, but since we're talking articles, I'd point out that the Supreme Court called it "the ACA," not "ACA." --Nstrauss (talk) 21:25, 17 July 2012 (UTC)

Yeah, that's what I meant. No problem with "the ACA". -- Lord Roem (talk) 21:27, 17 July 2012 (UTC)

Also, I'm open to calling it the ACA, but we should try to be consistent with the PPACA page, which consistently calls it "PPACA" (or "the PPACA"). --Nstrauss (talk) 21:30, 17 July 2012 (UTC)

Medicaid holding

I removed the holding in the infobox about Medicaid, with the comment: "change infobox holding. Only the Court can hold something. Medicaid opinion was not opinion of the Court." Lord Roem reverted with the comment: "Medicaid 'judgment' at least *was* determined". Lord Roem, I don't understand this statement. There was no "judgment" on Medicaid. Please explain. --Nstrauss (talk) 21:32, 17 July 2012 (UTC)

Roberts (+2) and the 4 Joint Dissenters all agreed that the Medicaid expansion enforcement mechanism (the rescinding of previously granted funds) was unconstitutionally coercive. Roberts + 3 and the Ginsburg concurrence both agreed that the Medicaid provision should be severed, as opposed to the Dissent's view of invalidating the entire law. So, there was a holding on the Medicaid question, even though it wasn't in a single opinion. Lord Roem (talk) 21:38, 17 July 2012 (UTC)

No, just because a majority of the justices agreed on something doesn't automatically make it a holding. Judges don't hold anything, courts do. If the conservative dissenters had joined Roberts then Roberts' opinion on Medicaid would have been the Opinion of the Court and it would have contained holdings. But they didn't, so it wasn't, and therefore it didn't. I thought this was all hashed out in the thread titled "Opinion of the Court"... --Nstrauss (talk) 21:50, 17 July 2012 (UTC)

If seven justices agree to the same argument, that is a binding holding. If you want, I'll pull up some legal commentary, all of which are in consensus on this point. Lord Roem (talk) 22:43, 17 July 2012 (UTC)

I'm sure you can find commentary that supports your position but there's certainly no consensus. I did a quick (far from exhaustive) search and the first opinion I could find on the subject was this one from renowned Stanford Law prof Hank Greely. He wrote:

On the other hand, the precedents are not very important. Some of them, in a technical sense, are not even precedents. The Chief Justice’s positions on the Commerce Clause, the Necessary and Proper Clause, and even the Medicaid Expansion are not part of “the Opinion of the Court” because none of them got five votes. Future Courts are not bound by them. Now, if the issues arise again soon, that won’t matter, because a majority of the justices did accept the Chief’s positions on those points. But that won’t be true fifty years from now, or even, necessarily, five or ten. I don’t understand why the joint dissenters did not join the Chief’s opinion on Sections III(A) and IV(A) to give him a majority.

--Nstrauss (talk) 05:22, 18 July 2012 (UTC)

Here's the most thorough analysis of the issue I've read. The upshot is that whether the portions of Roberts' opinion on the Commerce Clause and Medicaid contain holdings is an open question. I found the post a couple of weeks ago; there may have been further analysis on Volokh Conspiracy since then. --Nstrauss (talk) 05:31, 18 July 2012 (UTC)

This discussion seems to have gone stale, so I'm removing the Medicaid holding. If anyone wants to revert and restart the debate then I'm fine with that. --Nstrauss (talk) 03:56, 15 August 2012 (UTC)

I concur, Nstrauss. The Medicaid was not the opinion of the Supreme Court. Myownworst (talk) 15:39, 15 August 2012 (UTC)

I would suggest adding a sentence or two to the section Opinions on Medicaid expansion that briefly explains the controversy, with a ref to [1]. I'd also add a footnote to the infobox #3 with a link to that section, but leave it in. As a practical matter, with seven justices essentially agreeing, this is part of the Court's ruling; neither the administration nor the lower courts are likely to read it any other way. --agr (talk)

I've done this.--agr (talk) 23:47, 16 August 2012 (UTC)

I don't agree with your statement that "as a practical matter ... this is part of the Court's ruling," and it's not ideal to me, but I suppose I can live with it. Grumble grumble. --Nstrauss (talk) 03:20, 17 August 2012 (UTC)

Lord Roem, if you are reverting without any adding any discussion at this point then you're just engaging in an edit war. Please have a seat at the table and let's keep the ball rolling. --Nstrauss (talk) 22:17, 15 August 2012 (UTC)

External link section

We need some idea on what links to include. Commentary and analysis is very broad on this case, but we don't want to have all articles on the case linked. That would be unworkable. Per policy, we probably should include the most comprehensive sources. By 'comprehensive', I mean sources that give a good overview of all the arguments on all sides.

Thoughts? -- Lord Roem (talk) 23:05, 17 July 2012 (UTC)

I propose the following sources:

1. Friday round-up— Links to various aspects of Supreme Court ruling on the Patatient Protection and Affordable which offers a broad picture of ruling reactions and analysis to the ruling which is a good foundation for further reading and research by wikiusers
2. Friday round-up— Links to various aspects of Supreme Court ruling on the Patatient Protection and Affordable which offers an additional picture of ruling reactions and analysis to the ruling which is a good foundation for further reading and research by wikiusers
3. Menu of today's coverage— Detail Legal analyses regarding Supreme Court rulings on 28 June 2012 including Anti-Injunction Act, individual mandate and Medicaid expansion rulings of the Affordable Care Act by the Supreme Court
4. Special Feature: Post-decision Health Care Symposium — Guest commentary on various aspects of the Supreme Court ruling on the Patient Protection and Affordable Care Act by law professor and lawyers which is a good foundation for further reading and research by wikiusers
5. "The Healthcare Case" — National Federation of Independent Business v. Sebelius— A breakdown of National Federation of Independent Business v. Sebelius as provided by Law Professor Byron L. Warnken from University of Baltimore School of Law, 28 June 2012 --> Comprehensive legal analysis of the case covering all aspects of the ruling
6. Analysis: U.S. Supreme Court Upholds the Affordable Care Act: Roberts Rules? by Meghan C. O'Connor and William O. Jackson from von Briesen & Roper, S.C.; as provided by National Law Review, 29 June 2012 --> Comprehensive legal analysis of the case covering all aspects of the ruling

--P3Y229 10:10, 18 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

I think #4 is sufficient. It provides links to many of these other sources, and is the broadest in scope for anyone wanting to research the case. Lord Roem (talk) 13:14, 18 July 2012 (UTC)

I think the Friday roundups are better because they're not restricted to opinions posted in Scotusblog. But I agree that these are all sufficient. --Nstrauss (talk) 16:24, 18 July 2012 (UTC)

Other opinions? Otherwise I'm gonna to post all six sources because they are, as noted by Nstrauss, sufficient. --P3Y229 20:37, 18 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

Sufficient, but not necessary. None of these sources provides any real 'new' or, really, 'external' information. -- Lord Roem (talk) 12:29, 19 July 2012 (UTC)

@ [User:Lord Roem|Lord Roem]]: I try to make a deal. Can you live with the addition of #1, #2 & #4 and the dropping of the other links? --P3Y229 21:26, 19 July 2012 (UTC)

I really don't care that much about which links stay in or out. I just don't want a bunch of legal spam on this (or really any) article. Usually, a link to the decision and the oral argument is the good bar to set. -- Lord Roem (talk) 16:52, 20 July 2012 (UTC)

Ok. I understand your point of view and therefore I withdraw my proposals. --P3Y229 20:57, 20 July 2012 (UTC) — Preceding unsigned comment added by P3Y229 (talk • contribs)

Singular possessives

In light of the recent edits by 71.161.210.246, I was wondering if Wikipedia has a grammatical standard for the use of apostrophes for the possessive form of singular nouns that end in -s? I had always been taught to add an 's regardless of the noun's ending, with an exception being made for certain "ancient" persons like Jesus & Socrates. So the Roberts opinion would be referred to as Roberts's opinion, rather than Roberts' opinion. After a bit of research, it would seem that this rule is not as firm as I had thought.

Here are a few opinions for anyone undecided on the matter to consider:

• http://grammar.ccc.commnet.edu/grammar/possessives.htm
• http://www.grammarmudge.cityslide.com/articles/article/1026513/8914.htm
• http://www.englishrules.com/writing/2005/possessive-form-of-singular-nouns-ending-with-s/
• http://www.meredith.edu/grammar/plural.htm#Singular%20p
• http://www.grammaruntied.com/blog/?p=816 (note that none of the Chicago style's 3 exceptions would apply)

Personally, it seems this is an example of the English language becoming more "simplified", with a rule being modified for the sake of convenience. An apostrophe was designed to replace just one letter, not two. The Germanic tradition was to make all words plural by adding an -es, with the apostrophe later replacing the 'e'.

Ironically, as Wiki notes, this very Court has informally "ruled" on the matter (of course falling upon a 5-4 divide), with the majority favoring the extra s. So perhaps we should go with their opinion in an article about another decision of theirs?

Of course, whatever is decided, it is most important to stick to it so there is consistency throughout the article. 68.58.63.22 (talk) 20:13, 27 July 2012 (UTC)

The standard is articulated in MOS:POSS. --Nstrauss (talk) 21:41, 30 July 2012 (UTC)

Thanks for the link, but unfortunately that doesn't resolve the matter. It just confirms that the editors of each article have a choice. 3 choices, specifically: 1.) Always just add 's; 2.) Always just add ' (with no s); or 3.) Vary between the two based on how the possessive is pronounced. The only rule really is that whatever practice is chosen, editors should be consistent about applying it within that article. From skimming through, I see 3 applicable nouns so far (for anyone considering option 3): Congress, Roberts, and Thomas. I am partial to option #1, but will wait to see anyone agrees before making the relevant edits.

By the way, I'm not usually this much of a grammar nazi, but I've seen a few editors that keep changing the apostrophes around every time they rewrite a section, which has led to inconsistencies. I thought it would be good to set a standard once and for all, at least here if not for all law related articles. 68.58.63.22 (talk) 05:24, 31 July 2012 (UTC)

Just choose one of the three and go with it -- be bold! --Nstrauss (talk) 19:20, 31 July 2012 (UTC)

On "Speculation over Roberts' vote"

There are multiple articles that state that justice Roberts wrote both the opinion of the court and a large portion of the joint dissent, but there is no mention of this in the wiki article here. Some examples:

• http://www.salon.com/2012/07/03/roberts_wrote_both_obamacare_opinions/
• http://www.rawstory.com/rs/2012/07/03/roberts-wrote-both-sides-of-health-care-ruling/
• http://video.msnbc.msn.com/the-last-word/48067335

There might be too much emphasis on the Crawford article. That article suggests that the four dissenters (Kennedy, Scalia, Thomas, Alito) did not join Robert's opinion because they had "parted ways". But these sources say that Roberts actually wrote much of the joint dissent before switching sides, and the dissenters just picked that up and finished it. The salon.com article directly responds to the Crawford's article, with an update from "a source within the court with direct knowledge of the drafting process" stating that Roberts actually wrote both opinions. Given the plausibility of this view, it should be included in the Speculation section and perhaps be given as much length as Crawford's source. --Abstractematics (talk) 21:29, 17 August 2012 (UTC)

I agree, with qualifications. The three sources you cite all come back to Paul Campos. Campos should be entitled to his own header, although his section should be shorter because he had less to say. Crawford's article was largely about Roberts' story and the rift with the other conservatives was only a relatively small part of it. I'd also note that the Crawford and Campos theories are largely consistent. --Nstrauss (talk) 07:26, 18 August 2012 (UTC)

Sissel v. DHHS

Added a blurb at the end about ongoing litigation related to NFIB v. Sebelius. -- Foofighter20x (talk) 03:22, 2 October 2012 (UTC)

Supreme Court audio files

The audio from the three days of arguments and the opinions have recently been released by the National Archives and I have uploaded them to Wikimedia Commons. There are 5 separate files, all available in commons:Category:US National Archives series: Audio Recordings of Oral Arguments, compiled 1955 - 2012. These, or clips, might be useful to this article, so I wanted to let the contributors here know. The files could also use categorizing on Commons, if anyone is interested. Dominic·t 19:25, 5 October 2012 (UTC)

Who is Sebelius?

The article doesn't explain who Kathleen Sebelius is, there should be some information/explanation.--occono (talk) 01:16, 1 May 2013 (UTC)

It's in the SCOTUS infobox to the right... --Foofighter20x (talk) 18:23, 17 May 2013 (UTC)

PublicMind

On June 10 Mfuzia added the following paragraph under Academic Commentary:

Fairleigh Dickinson University's PublicMind™ conducted research on the public's constitutional perspective by asking registered voters about key legal issues brought up by PPACA litigation through two surveys based upon a random sampling of the United States population. The authors, Bruce G. Peabody and Peter J. Woolley contend that, through public response on this case, that despite claims of an ignorant and uninformed public, the masses can be confident, properly conflicted, and principled when considering major controversies and dilemmas.[80] Rather than polling the public on raw personal opinion, the study conducted inquired into the random voters legal judgement on PPACA constitutionality. For example, 56% of Americans (as of February 2012) deemed that Congress does not have the legal right to require everyone to have health insurance, while 34% believed that such a mandate was legally permissable.

I removed it with the comment: "removed PublicMind research as not about the subject. It's about the public's perception of the constitution, or perhaps PPACA, but not about NFIB v. Sebelius".

Mfuzia restored it (re-reverted) without comment.

Mfuzia, most of this material isn't notable, and what might be notable belongs in the PPACA article. Please respond and please do your best to refrain from edit warring. --Nstrauss (talk) 17:18, 11 June 2013 (UTC)

NFIB/Most Provisions

NFIB v. Sebelius did not uphold "most provisions" of Obamacare as stated in the beginning of the article, merely the individual mandate. The court did not pass judgment on any of the other provisions, except the state medicare expansion (which it held unconstitutionally coercive). The rest of the law was not overturned, but no decision on its constitutionality was determined. Indeed, several cases are currently working their way through the courts on various other parts, like religious contraceptive mandates, etc. Jaykest1 (talk) 13:28, 23 October 2013 (UTC)

Technically speaking the Court didn't even pass judgment on the Medicaid (not Medicare) expansion, as even though a majority of the justices agreed it was unconstitutional, the conservative dissenters didn't join with the plurality so there was no Opinion of the Court on that particular subject. --Dr. Fleischman (talk) 16:45, 23 October 2013 (UTC)

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Why characterize "unconstitutional" as "not a proper use" and "not a valid exercise"?

The actual text of the SCOTUS decision uses the word "unconstitutional" to describe the individual mandate and the Medicaid penalty. SCOTUS does not merely say, "improper" or "invalid". The majority opinion explicitly states an individual mandate penalty is unconstitutional (while an individual tax is not) and explicitly states "the Act’s 'Medicaid expansion' is unconstitutional in threatening states with loss of existing Medicaid funding". There's no reason for this article to obscure the ruling behind weaker language. I propose using the terminology which literally appears in the ruling by modifying following passage to read...

A majority of the justices, including Chief Justice Roberts, agreed that the individual mandate was an unconstitutional use of Congress's Commerce Clause or Necessary and Proper Clause powers, though they did not join in a single opinion. A majority of the justices also agreed that another challenged provision of the Act, a significant expansion of Medicaid, was an unconstitutional exercise of Congress's spending power as it would coerce states to either accept the expansion or risk losing existing Medicaid funding. William Frantz (talk) 20:49, 27 February 2020 (UTC)

Because Marks v. United States (1977) is controlling over how to determine what is the court's holding when you have a divided mess as in this case. The controlling opinion of the court that commanded five votes are in Roberts's opinion as follows: (1) Part I, which lays out the facts of the case; (2) Part II, which rules that the Anti-Injunction Act does not apply to the individual mandate—that is, it can be challenged without first having to pay the penalty; (3) Part III-C, that the individual mandate is a valid exercise of the taxing power. Five justices say it's constitutional, so that's controlling.

As relates to the Medicaid expansion, seven justices concurred in the result, that the Medicaid expansion was unconstitutional, but no one opinion among those seven commanded a majority. Therefore, per Marks, the narrowest opinion controls. Four of the seven (Scalia, Kennedy, Thomas, and Alito) said the expansion was an unconstitutional use of the spending power and the remedy was to strike down the whole expansion. The other three said that the Medicaid expansion was a unconstitutionally coercive use of the spending power, but that the remedy was to leave the law in effect and strike only that part that gave SecHHS the power to cut off funds to non-cooperating states. -- Foofighter20x (talk) 01:58, 9 March 2020 (UTC)

Necessary and Proper Clause

The Necessary and Proper Clause article in Wikipedia holds that National Federation of Independent Business v. Sebelius found the individual mandate to be unconstitutional. This article (National Federation of Independent Business v. Sebelius)is inconsistent and self contradictory, and comes to the opposite conclusion, that the individual mandate was upheld. This is, of course, not the case. The Necessary and Proper Clause article’s holding that National Federation of Independent Business v. Sebelius killed the individual mandate is correct. Smanion (talk) 18:09, 27 June 2024 (UTC)