Beginning this Constitution Day, and continuing through the 150th anniversary of the Fifteenth Amendment in 2020, we should work together to build a celebration that's worthy of the Second Founding's remarkable constitutional achievements — one that restores the Second Founding Amendments to their rightful place at the center of the American constitutional story.
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Articles & Commentary
The full D.C. Circuit's decision to rehear Halbig wasn't political; it was a straightforward application of Federal Appellate Rule 35, which governs when federal appeals courts should rehear cases en banc. According to your editorial, a case is of "exceptional importance" when it involves some "constitutional principle." But that's not what Rule 35 says. The rule provides that a case is of exceptional importance when "the panel decision conflicts with . . . decisions of other . . . Courts of Appeal." That standard was met here because the Fourth Circuit upheld the IRS rule.
John Roberts, the Chief Justice of the United States, grew up in Indiana. He could learn a very good lesson from the practices of his home state’s Supreme Court, which is that government functions best when those it serves can see and understand what it is doing. Clearly, the Indiana Supreme Court appreciates the value of openness in government. If Hoosiers can broadcast their oral arguments live, why can’t the U.S. Supreme Court?
But thus broadening the stakes in these lawsuits is a mistake. The better—and accurate—tack is that opponents’ route to interpreting federal exchanges into self-immolation is so hyper-blinkered that it flouts bedrock axioms common to all legitimate interpretational theologies.
Last week, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit — Judges Jeffrey Sutton, Deborah Cook, and Martha Craig Daughtrey — heard oral arguments in cases from four states (Kentucky, Michigan, Ohio, and Tennessee) in which lower court judges have struck down state bans on same-sex marriage and bans on the recognition of same-sex marriages legally entered into elsewhere.
Fortunately, Virginia's "traditional" view of marriage has been consigned to the dustbin of history. I'm confident that when all is said and done on the issue of marriage equality for gay men and lesbians, that's where we'll find Virginia's current laws as well. As the majority recognized in Bostic, the Fourteenth Amendment requires no less.
The D.C. Circuit's decision got basically everything wrong. It misunderstood the text, structure and purpose of the Affordable Care Act. The Justice Department has already indicated that it will ask the entire D.C. Circuit to review the Halbig v. Burwell decision, and when it does, it will no doubt reverse it.
On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business.
In the Roberts Court, the First Amendment is a powerful weapon, not for the street corner speaker, but for corporations and wealthy seeking to squelch regulation.