"We made an industry out of cigarettes, we made an industry out of alcohol and now we're creating an industry out of marijuana – frankly, it's surreal sometimes."

Says Mary Beth Susman, a member of Colorado's Amendment 64 Implementation Task Force, which is about to report on a plan to regulate marijuana in Colorado (which is part of the United States, which criminalizes the production, sale, and possession of marijuana).

On one hand, the task force has considered new rules for what Colorado should do when it inevitably becomes a center of "pot tourism," it has debated whether smokers can use their backyard patios to light up, and it has considered how to deal with "marijuana clubs" that will appear....

How it converts a massive black market into what experts call "problematic adult commerce" on the fringes of society – akin to gambling, drinking, and go-go clubs – all amid lingering legal concerns, could provide a framework for other states to follow....

"So far, few traditional farmers lining up to grow marijuana in Washington state, Colorado."

WaPo reports:

Marijuana remains illegal under federal law....

The Justice Department has not said whether it will try to block the two states from implementing their new laws, passed late last year.....

In addition, marijuana is a crop that can’t be insured, and federal drug law bars banks from knowingly serving the industry....

Both states are in the process of developing rules for a legal marijuana industry....

How can state rules possibly make the industry legal? They can only make chaos that might conceivably move Congress to change the federal law. I don't see that coming any time soon. The Justice Department might say something encouraging, but will the next President's Justice Department stick with whatever position Eric Holder embraces?

Even if you felt sure you wouldn't be prosecuted, would you want to sign up on an official list as someone who is conspicuously committing an ongoing felony? Would you switch from a legal crop and expose yourself like that? And even if some farmers would go ahead and violate the criminal law — presumably because the upside profits are high — does the inability to buy crop insurance and use banks wreck the whole idea?

Dozens of marijuana experts, who have been growing plants for medical use or in secret for illegal use, are educating state officials about the potential for the crop. Probably 95 percent of those people choose to grow their plants indoors, despite higher costs, to control light and temperature, improve quality and increase yields....

Indoor crops generally allow for up to three harvests per season, compared to just one harvest for an outdoor crop, and allow for easier security measures. 

So "traditional farmers" have an entirely separate reason for not responding to the new program. You can't be growing marijuana amber-waves-of-grain-on-the-fruited-plain style. This stuff will be grown in big warehouses, pulling in loads of electricity for intense lighting and heavily guarded with guns! guns! guns!

Oh, but here's a little old lady, "Gail Besemer, who grows flowers and vegetables near Deming, Wash., [who] has expressed interest in a producers’ license."

Besemer already has three hoop houses, which are essentially temporary greenhouses, but could see expanding her business slightly to grow marijuana for a local clientele in northwest Washington.

Slightly! Flowers! Grandma!

However, “I’m concerned about druggies invading my property — ne’er-do-wells invading my property to steal, to get free dope,” she said. “Security would be an issue.”

Where do you get off with that contempt for the consumers of the product you want to grow? Seems to me, these are your people. Don't insult them.

“My family is not particularly excited about me being interested in this. But if someone has an integrated farm, growing a number of different crops, I would think it would be a high profit plant,” she said. “Taxation and security might get in the way of profits, and it might end not being so profitable.”

Yeah, you'd better think about it, lady. There's a reason it's a high profit plant. If it weren't for all these problems, any idiot could grow his own in his house. Take away the obstacles, and it's not a business at all. Which removes half of the attraction for the government, since there won't be anything to tax if there isn't a big rules-heavy structure burdening business. This isn't a game for the little old lady with her flowers and hoop houses. But that's the screwy, sentimental anecdote The Washington Post ties to plant in our brain.

Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

Obama's useless response to the Colorado/Washington marijuana issue.

"We've got bigger fish to fry... It would not make sense for us to see a top priority as going after recreational users in states that have determined that it's legal."

This is no help at all. It states the obvious, and it says what's true about federal policy toward all the states. The feds are not prosecuting the small-time user. The question in Colorado and Washington state is about how the state is supposed to manage the situation, given the conflict with federal law. They've asked for a federal response, and this gives them absolutely no new information.

He does say a  bit more...

"This is a tough problem, because Congress has not yet changed the law.... I head up the executive branch; we're supposed to be carrying out laws. And so what we're going to need to have is a conversation about, How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal?"

... but that's restating the question, not answering it.

What we're going to need to have is a conversation about... that's so annoying. Give an answer!

Jimmy Carter thinks "it's okay" to legalize marijuana.

Well, then!

He took the federalism angle: "That’s the way our country has developed over the last 200 years. It’s about a few states being kind of experiment states. So on that basis I am in favor of it.”

... I think we can watch and see what happens in the state of Washington, for instance around Seattle, and let the American government and let the American people see does it cause a serious problem or not.

"How Much of Each State's Budget Comes From the Feds?"

"From 24% (Alaska) to 49% (Mississippi)."

"Why did America change its mind about legal marijuana?"

Asks the Christian Science Monitor, reacting to the Quinnipiac Poll — which we were talking about yesterday. Our discussion focused on the gender difference, which the CSM doesn't mention. It just says 51% of Americans support legalization, when in fact, as I highlighted "Men support legalization by a much wider margin, 59-36%, and women oppose it, 52-44%." You can get some different insights into why "America change[d] its mind" if you know the gender profile of that "mind."

But the CSM, gender-blind, speculates thusly:

The dramatic change in public opinion, experts say, has been driven by pop culture and generational shifts, and also a simple reality. While pot is illegal, it is common at parties and concerts....

"With the use of marijuana for medicinal purposes legal in about 20 states, and Washington and Colorado voting this November to legalize the drug for recreational use, American voters seem to have a more favorable opinion about this once-dreaded drug," Peter Brown, assistant director of the Quinnipiac University Polling Institute, told CBS News. "There are large differences on this question among the American people."

Though boosted by successes in Colorado and Washington, pro-marijuana advocates say their toughest challenge is convincing Congress and President Obama to declassify pot as a Schedule 1 drug – or at least to ensure that Congress doesn't interfere with state experimentation on marijuana taxation. After all, Mr. Obama allowed his Justice Department to begin a crackdown on medical marijuana dispensaries despite a campaign promise to not do so....

There's one more step needed in this analysis, and it's why I changed my mind. There's too much legal disorder, and it can only be decently cured by changing the federal law. Years ago, the states all agreed with the federal government's ban and helped out with the enforcement. But the states had the power to go their own way, and now that some have, there's a huge enforcement gap, which makes at least some people in those states feel that marijuana is legal. This is confusing to the point of unfairness.

I don't like the federal government lurking in the background and sending mixed signals about whether it will or will not enforce. Those who aren't too risk averse or who are not big rule-followers get to use a product that more timorous or punctilious individuals feel they're not allowed to use. And the medical marijuana approach makes it even worse, creating absurd temptations to lie and dissemble and even fantasize about ailments and the curative effect of the drug.

It's a mess that can only cleaned up by legalizing the drug at the federal level and letting the states take over the lawmaking and law enforcement.

"Marijuana... is still illegal under federal law. State officials say the Justice Department is creating confusion..."

"... by remaining silent about what steps it may take in Washington and Colorado, which passed initiatives in November legalizing the manufacturing, distribution and possession of up to an ounce of marijuana."

After his state approved the initiative, Colorado Gov. John Hickenlooper (D) called Attorney General Eric H. Holder Jr. and wrote him a letter asking for guidance about how the federal government will react to the state’s new law.

“We need to know whether the federal government will take legal action to block the implementation of Amendment 64, or whether it will seek to prosecute grow and retail operations,” Hickenlooper wrote. He also asked Holder if Justice will prosecute Colorado state employees who regulate and oversee the growing and distribution of marijuana.

What a mess!

"Why should the President direct the people to do what, perhaps, they have no mind to do?"

"If a day of thanksgiving must take place... let it be done by the authority of the several States."

Gov. Scott Walker rejects state participation in Obamacare.

"Unfortunately, operating a state exchange would not provide the flexibility to meet our state's unique needs or to protect our state's taxpayers."

And here's a story from 3 days ago: "9 lawmakers want to arrest U.S. officials who implement Obamacare." Arrest?! This is how tea partiers get the reputation nutty.

Supreme Court takes Voting Rights Act case.

WaPo reports:

The justices three years ago expressed skepticism about the continued need for Section 5 of the historic act, which requires states and localities with a history of discrimination, most of them in the South, to get federal approval of any changes in their voting laws....

That is, the law applies differently to different states, based on their record with voting and race decades ago.

NY Mayor Bloomberg endorses Massachusetts Senator Brown — over his Democratic challenger, Elizabeth Warren.

Questions:

1. Wait. I forget... Is Bloomberg a Democrat or a Republican? He's an "independent" now. He was a lifelong Democrat, until he ran for mayor (in 2001) as a Republican. He came out as an independent in 2007.

2. What does the mayor of New York have to do with Massachusetts? He was born in Massachusetts, grew up there, and went business school there.

3. Why did he pick Brown over Warren?

[T]he mayor had chosen to support Mr. Brown... for opposing a “national concealed-carry reciprocity amendment,” which would have required states to honor concealed-weapons permits issued by other states.

Concealed-carry reciprocity "would let people with gun permits from rural states like Arkansas and Kentucky carry hidden handguns in New York City," according to the mayor's spokesman.

It's not as though Warren opposes gun control, but when you "take a tough stand and buck party orthodoxy that helps the city of New York, the mayor would like to support you."

Interesting. By the way, why specify "rural states like Arkansas and Kentucky"? That has a bigot-y feeling to it. I suppose they might mean that in a system of decentralized gun regulation, what's right for a rural state is different from what a place like NYC needs/prefers. Federally imposed reciprocity undercuts the federalism values inherent in letting the states decide for themselves. But "rural states like Arkansas and Kentucky" — to my ear — sounds more like disgust for hillbillies.

What happens if states turn down the Medicaid expansion money and decline to set up the health-insurance exchanges.

Michael D. Tanner explains the surprisingly extreme consequences.

[I]f a state doesn't expand its Medicaid program, most of those who would've been eligible for Medicaid will now become eligible for subsidies through ObamaCare's health-insurance exchanges. And those subsidies are paid in full by the feds.

Thus, New York, for example, would shift most of that $52 billion in new costs back to the federal government.

Of course, if states do shift those costs back to the feds, that will cause the federal cost of ObamaCare to skyrocket. If every state were to refuse to expand its Medicaid program, the feds would save roughly $130 billion in their share of Medicaid costs in 2014, but would have to pay $230 billion more in new exchange-based subsidies — for a net added cost of $100 billion. And that's just for the first year...

ObamaCare gives the feds the authority to step in, setting up and operating an exchange in any state that doesn't set up its own... [But f]ederal subsidies are available only through exchanges that the states set up. The feds can't offer subsidies through a federally run exchange.

Thus, if states neither expanded Medicaid nor set up exchanges, that would effectively block most of ObamaCare's new entitlement spending.

Given the potential for chaos in the Obamacare scheme if the states decline to participate, it's surprising that Justices Breyer and Kagan went along with the Chief Justice's opinion on the spending power.  The original legislation had the states locked in, because they'd lose all their Medicaid funding if they didn't participate. That was held to be coercive, and thus not supportable by the spending power, which requires that states be given a choice whether to run federal programs and accept various related conditions. Under the Court's ruling, the states only lose the funding for the expansion of Medicaid, which makes it possible for them to say no, as many seem to be doing.

There's an elaborate set of moves in the future, and I wonder how far ahead the Chief Justice looked when he chose his position. Perhaps Obamacare is doomed by the seemingly modest, miminalist hit it took on the spending power issue. But wouldn't Breyer and Kagan have seen ahead too? Why did they join him? I'm not ready to give him genius points for skillful playing of the long game.

Mitt Romney says "The Supreme Court has the final word. And their final word is that Obamacare is a tax."

Interviewed by Jan Crawford, Romney takes the clear, straightforward separation-of-powers position. The judiciary has the work of saying what the law is:

So it is a tax and it's constitutional. That's -- that's the final word. That's what it is. Now, I agreed with the dissent. I would have taken a different course. But the dissent wasn't the majority. The majority has ruled. And their rule is final.

Crawford moves in with the challenge Romney will always have to deal with: You did the same thing in Massachusetts. It this was a tax, then that was a tax. And we expect him always to answer in about the same way: There's a difference between doing something at the federal level and doing it at the state level.

As a lawprof, I see the consistent separation-of-powers theme.
The Constitution gives the judiciary the power to interpret the law, and it gives Congress the power to make the law, but under our system of federalism, Congress's power to make law is limited to a set of enumerated powers. The Supreme Court case was about whether Congress could regulate and require people to buy health insurance, and the answer on that question was that Congress does not have that power. The only reason the Supreme Court appeared to uphold the mandate was that on closer inspection, the Chief Justice decided that there wasn't a requirement to buy insurance at all, despite what the people believed was happening when the law was passed — when the law squeaked by in Congress.

The Chief Justice, the deciding vote, looked and decided that there was no mandate at all, just an option that people were given: Either buy insurance, from a private insurance company, or pay an amount of money to the federal government, and the Chief Justice said that second option, if seen as a tax, could be upheld under the enumerated power that is the taxing power. That may seem awfully strange to people, but in Massachusetts, there was no need to think about it in a strange way like that, because the state's powers are different. The state legislature is not restricted to the Constitution's enumerated powers. The state legislature has the powers of government that are left after the Congress has gotten its set of enumerated powers. That is our system of federalism, and the more expansively the Supreme Court reads those enumerated powers, the less is left for the states, and that is an important rearrangement of constitutional powers.

But that's lawprof talk. Too long. Romney needs to make the federalism point in a convincing, snappy way, and he's got to do it with the interviewer coming at him with the you-raised-taxes challenge — as if the main thing people want to hear about is whether taxes will be raised. And in legal terms, that's just weird, because a penalty — the term used by Congress — is a harsher matter than a tax. The Chief Justice said the "penalty" could be seen as a tax because it was so little that it didn't amount to compulsion. In this view, Congress refrained from forcing people to buy insurance, and because of that, the law survived. But the word "tax" is a hot word in presidential politics, so what was milder ends up seeming more severe.

That's a lot to process in a media interview. You can't say all that. I think I put that in a clear and conversational way, but I know that in political discourse it would sound ridiculously blabby and didactic. And it is Romney's greatest point of vulnerability — his work on health care in Massachusetts. It's especially important that he avoid giving us the feeling that he's dancing around the truth and over-explaining. He says:

Actually, the -- chief justice, in his opinion, made it very clear that, at the state level -- states have the power to put in place mandates. They don't need to require them to be called taxes in order for them to be constitutional. And -- and as a result, Massachusetts' mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was.

Pretty good! He's denying that he raised taxes. The same thing, at the state level, isn't a tax, because not only was it not called a tax, but it didn't need to be relabeled a tax — "it stays as it was" — in order to make it constitutional. Relabeling was a special trick needed to conjure up federal power. We didn't need that trick to make it constitutional in Massachusetts.

That's enough to move Crawford on. She says: "Whatever it's called... it means that Americans, if they don't have insurance, are going to pay something, whatever they call it." What I'd jump on there is her use of the word "Americans." Romney was never involved in telling Americans what to do, only Massachusetters. Romney says:

You know, I made it very clear throughout my campaign and actually, while I was governor of Massachusetts, that the issue of the uninsured should be dealt with at the state level. And each state can create their own solutions to meet the needs of their people.

Think of the restraint it takes to stop there. Implied in that is: Hello? It was Massachusetts, the most liberal state in the country. What was I supposed to do? I worked with these people to give them something that suited their preferences, as liberals. This is the genius of federalism, that policies are designed at the state level. Massachusetts got a Massachusetts-style policy, and that's not going to be what other states get. It's not one-size-fits-all when you take the federalism — leave-it-to-the-states — approach, which is what I'm talking about. The federal law that the Supreme Court upheld foisted the most liberal state's preference on all of the states. That's what I object to.

Now, that's what I'd be tempted to say, but you can't say all that. It's blabby and defensive, and it's technical and weird. But he essentially said that, didn't he? He can leave it to others to expand into the Massachusetts-specific material.

Crawford goes on to challenge him about he statement — which appears on his website — that he would choose Supreme Court Justices who are like John Roberts. Does he maybe want to change that? Romney says:

Well, I certainly wouldn't nominate someone who -- I knew -- was gonna come out with a decision I violently disagreed with or vehemently, rather, disagreed with. 

(He disapproved of his use of the word "violently.")

And he reached a conclusion I think that was -- not accurate and not -- an appropriate conclusion. But -- that being said, he's a very bright person. And I -- I'd look for -- individuals that have intelligence and believe in following the constitution.

A very bland answer. (Except for the violence.)

Crawford brings up her own journalistic scoop — that Roberts supposedly "switched his vote." "He was initially with the conservatives to strike down the heart of the law, the individual mandate, and then changed his mind to join the liberals to uphold it?" Romney says:

Well, it -- it gives the impression that the decision was made not based upon constitutional -- foundation but instead -- political consideration about the -- relationship between the branches of government. But we won't really know the answers to those things until the justice himself speaks out -- maybe some time in history.

See what he did? He got in there and took his shot: Roberts yielded to political pressure. But the punch is pulled. We get an "impression," but we don't "really know," and blah blah blah... maybe someday... history....

He made the harsh criticism and left us feeling that he wasn't harsh, that he was moderate and thoughtful and disinclined to get ugly. And yet, he was ugly enough to hurt.

Sources tell Jan Crawford that Chief Justice Roberts really did switch sides.

The CBS reporter heard from "two sources with specific knowledge of the deliberations."

Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law...

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold....
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

Amazing to learn all this so quickly. Who are the sources? The phrase "specific knowledge of the deliberations" seems to imply that Crawford heard from 2 of the Justices (presumably 2 of the 4 conservatives).

Crawford tells us that Roberts initially agreed that the mandate was unconstitutional but she's a little cagey on the question of severability — that is, whether the whole legislation should fall along with that one provision, which is what the rest of the conservatives wanted. But Roberts assigned the opinion to himself and in the process of working on the opinion would have been aware of the pressure on the Court. As Crawford puts it "Roberts pays attention to media coverage" and he's "sensitive to how the Court is perceived by the public."

[By May] it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

I'm guessing this source is Kennedy. I'm also guessing that what gnawed at Roberts in the process of writing was the momentousness of striking down the entire statute, especially along what would be perceived a conservative-liberal 5-4 split.

Roberts developed his taxing power argument and tried to get "at least Justice Kennedy" to join the opinion to give it a greater solidity.

There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."

Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.

Crawford includes a lot of material here about Kennedy's approach to judging and how he's misunderstood:

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.

Why is this analysis in the article? I'm guessing it's because Kennedy expressed himself. They openly mock me.... Openly!

That's not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O'Connor....

At this point the article reads like PR for Kennedy. Why?

Kennedy...  is strong on issues of federalism - and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court's finest in that area. 

Oh, come on! Now she's just fawning. Considered one of the finest... by whom? There are things you can say about Alden — a case that certainly does outrage liberals — but "finest"? It is true though — and I would agree — that Kennedy has stamped his mark on the federalism cases. 

Crawford's piece ends this way:

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia —  and then, there is Justice Kennedy.

"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."

Strong admiration for Kennedy — who really has distinguished himself over the years by connecting the structure of federalism to the protection of the liberty of the individual.

ADDED: Back on March 30, right after the oral argument, we were talking about "the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty," was intended to appeal to Anthony Kennedy, with his longstanding interest in federalism as a mechanism for protecting individual liberty. But it was a very lame appeal, the notion being only that if people get the health care they need, then they'll be able to "enjoy the blessings of liberty."

ALSO: 5 years ago, when O'Connor was leaving the Court, Jan Crawford wrote — with admiration, I think — about Justice Kennedy, and we discussed it here.

AND: Math fix on the "also."

UPDATE: I take a closer look at the Crawford article and speculate about possible Kennedy motivations.

"I can't imagine [a state that] would say we aren't going to do this new Medicaid program."

The Supreme Court's decision removes the coercion of the Medicaid expansion. The states no longer face losing all their Medicaid funding. But will they opt out? They are still tempted by federal money, just not as much money. Here are the states that joined the argument against the law:



They failed to get the entire new program stricken down, so there's still a decision whether to opt in. Since the most coercive aspect of the program is gone, it's now a harder decision to make.

The federal government will pick up the entire cost of the expansion for the first three years. After that, it will pick up 90% of the cost and leave the remaining 10% to states. While that leaves only a small share for states, many have argued even that's too much given their tight budgets.

Several states said Thursday that, despite the ruling, they have no plans to opt out of the expansion. Washington state, which was a plaintiff in the Supreme Court lawsuit, said it will likely take the new federal money and expand its Medicaid program to about 500,000 residents in 2014. "That is the best bargain one can buy," said Democrat Gov. Christine Gregoire, who objected to the state Republican attorney general's decision to join the lawsuit. "I can't imagine who would say we aren't going to do this new Medicaid program."

So the truly heavy-handed coercion is gone, but the enticement that is left is still highly persuasive.

What the Supreme Court said about the spending power and Medicaid Expansion under the ACA.

Let's look at what Chief Justice Roberts writes about the spending power. (This is Part IV of his opinion, which is joined only by Breyer and Kagan. The rest of the votes for limiting the spending power come from Scalia, Kennedy, Thomas, and Alito.)

The issue here is raised by states that said that the Medicaid expansion wasn't merely a condition on spending, but "coercion." It's well established that Congress can't "compel the States to enact or administer a federal regulatory program," Roberts said, but Congress can offer money on the condition that they do what Congress could not compel. The states have a choice. But when is a choice not a choice? When it's compulsion.

Roberts highlights the federalism theory:

Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system. “[W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” [New York v. United States], at 169. Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer. But when the State has no choice, the Federal Government can achieve its objectives without accountability, just as in New York and Printz. Indeed, this danger is heightened when Congress acts under the Spending Clause, because Congress can use that power to implement federal policy it could not impose directly under its enumerated powers....

In rejecting the argument that the federal law was a “weapon[ ] of coercion, destroying or impairing the autonomy of the states,” the Court [in Steward Machine Co. v. Davis] noted that there was no reason to suppose that the State in that case acted other than through “her unfettered will.”  Id. at 586, 590....

But in this case, Congress isn't simply offering new money with a condition attached. It "has also threatened to withhold those States’ existing Medicaid funds."  That additional threat is there for no purpose other than to force the state to accept a dramatic expansion of Medicaid responsibilities:

In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.

A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. 

The internal quote is from South Dakota v. Dole, where the Court accepted Congress's withholding of 5% of federal highway funds if the state failed to raise the drinking age to 21.

Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs.... The threatened loss of over 10 percent of a State’s overall budget...  is economic dragooning....

It's compulsion.

Roberts rejects the argument made by Justice Ginsburg that it's acceptable because the threatened funds are all within the Medicaid program and Congress is only setting the conditions of that program:

We cannot agree that existing Medicaid and the expansion dictated by the Affordable Care Act are all one program simply because “Congress styled” them as such. Post, at 49. If the expansion is not properly viewed as a modification of the existing Medicaid program, Congress’s decision to so title it is irrelevant. 

So today is a day for rejecting congressional labels. The individual mandate was upheld under the taxing power even though Congress avoided calling it a tax, and the Medicaid provisions don't get to be considered part of one big pre-existing program even though Congress portrayed them that way. 

The Medicaid expansion... accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. See 42 U. S. C. §1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage. 

So the truly needy category got enlarged to include the relatively needy... and that made it a new program? To accept that argument, you're supposed to think of the overall purpose of the program and see that it's qualitatively different for Congress to go from dealing with the problem of poverty — which states have had to attend to all along — to taking on the ambitious governmental project of universal health care coverage. States might say yes, please help us with our basic welfare program, but still want to think separately about whether they accept the new project — which is highly controversial as a political matter — universal health care. To link the two is to wreck the scheme of accountability, the federalism theory at the heart of the conditional spending power doctrine.

Now, let's look at what Justices Scalia, Kennedy, Thomas, and Alito wrote, which represents 4 more votes on the spending power issue.

This practice of attaching conditions to federal funds greatly increases federal power.... [which] if not checked in any way, would present a grave threat to the system of federalism created by our Constitution....

Recognizing this potential for abuse, our cases have long held that the power to attach conditions to grants to the States has limits....

Where all Congress has done is to “encourag[e] state regulation rather than compe[l] it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people. [But] where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.” New York, supra, at 168.

Here's the federalism accountability theory again.

When Congress compels the States to do its bidding, it blurs the lines of political accountability. If the Federal Government makes a controversial decision while acting on its own, “it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.” New York, 505 U. S., at 168. But when the Federal Government compels the States to take unpopular actions, “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” Id., at 169; see Printz, supra, at 930. For this reason, federal officeholders may view this “departur[e] from the federal structure to be in their personal interests . . . as a means of shifting responsibility for the eventual decision.” New York, 505 U. S., at 182–183. And even state officials may favor such a “departure from the constitutional plan,” since uncertainty concerning responsibility may also permit them to escape accountability. Id., at 182. If a program is popular, state officials may claim credit; if it is unpopular, they may protest that they were merely responding to a federal directive.

So is this coercion? Scalia-Kennedy-Thomas-Alito pose a hypothetical:

Suppose, for example, that Congress enacted legislation offering each State a grant equal to the State’s entire annual expenditures for primary and secondary education. Suppose also that this funding came with conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of school districts, the length and hours of the school day, the school calendar, a dress code for students, and rules for student discipline. As a matter of law, a State could turn down that offer, but if it did so, its residents would not only be required to pay the federal taxes needed to support this expensive new program, but they would also be forced to pay an equivalent amount in state taxes. 

If if a state declines the funds, the people in that state get to maintain local autonomy about something that has traditionally been the province of the states, but they have to pay their own full cost and their share of the federal money that goes to all the other states. That always happens with conditional federal spending: Instead of each state paying its own way and making its own decisions, the states as a whole make the decisions and the money comes from the states as a whole. This means the states that like the decisions (and might have been happy spending their own money to do something) now get to cover their expenses with money taken from all the states, including the ones who hate the decisions enough to reject the money altogether.

But conditional spending is already part of the doctrine, so Scalia-Kennedy-Thomas-Alito are only talking about putting a limit on it. The limit is, as Roberts also wrote, when the offer becomes compulsion, because there is no real choice — when "federal spending legislation crosses the line from enticement to coercion." Scalia-Kennedy-Thomas-Alito say courts should be careful, but it's "unmistakably clear" in this case that Congress had crossed the line. He covers the same numbers that formed the core of Roberts' discussion — the immense size of the Medicaid program in the states' budget.

What the statistics suggest is confirmed by the goal and structure of the ACA. In crafting the ACA, Congress clearly expressed its informed view that no State could possibly refuse the offer that the ACA extends....

If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold... If Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for low-income aliens. 

These features of the ACA convey an unmistakable message: Congress never dreamed that any State would refuse to go along with the expansion of Medicaid. Congress well understood that refusal was not a practical option.

Thus far, the Scalia-Kennedy-Thomas-Alito opinion is really no different from Roberts'. The divergence comes at the point of deciding what to do about the Congress's transgression. Scalia-Kennedy-Thomas-Alito would invalidate the Medicaid Expansion (and the entire Act). The more moderate Roberts solution is only to invalidate the withholding funds that are part of the pre-existing Medicaid program. As Scalia-Kennedy-Thomas-Alito see it, the Medicaid Expansion was completely interwoven with a scheme of universal health-care coverage, which included exerting this compulsion upon the states with respect to the new Medicaid coverage.

ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.

The individual mandate survives as a tax.

Says SCOTUSblog.

CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."

CNN is running on the Commerce Clause ground, apparently, and not seeing the tax power part.

At SCOTUSblog: "So the mandate is constitutional. Chief Justice Roberts joins the left of the Court."

UPDATE: John King on CNN is starting to walk back. Wolf Blitzer notes "conflicting reports from in there."

UPDATE 2: From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

UPDATE 3: CNN reporter showing what a big, long opinion it is — holding it up, flipping through the pages. Finally, at 9:15, she says the entire law has been upheld.

UPDATE 4: Note the important political effect of saying it's a tax (and not an exercise of the power to regulate under the Commerce Clause): People don't like taxes. Obama and the Democrats imposed a huge new tax, affecting middle class people. Wolf Blitzer calls this "a huge huge victory for President Obama," but it will be used against him, and the tax ground means a lot.

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

UPDATE 5: Based on CNN, which I don't trust, it's a 5 to 4 decision, and Chief Justice Roberts, not Justice Kennedy, was the deciding vote.

UPDATE 6: From SCOTUSblog: "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." Hmmm. I think that might be misstated. I'm guessing SCOTUSblog meant to say that individuals can simply refuse to comply with the mandate — i.e., buy insurance — and pay the penalty — which is accepted as a "tax" within the meaning of the taxing power. [ADDED: My guess there is correct, as SCOTUSblog has now noted.]

UPDATE 7: I still don't have the opinion, but the Commerce Clause discussion comes out on the conservative side, and that will be important doctrine. Now, possibly they simply talk about the difficulty of the Commerce Clause question and then refuse to resolve it, switching to the taxing power issue.

UPDATE 8: The spending power material about the states and Medicare is also important. Per SCOTUSblog: "The Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program." This probably is an important new contribution to the doctrine about conditional spending, that Congress can't attach a new condition to old spending as it entices the states to agree to something they can't otherwise be required to do. That makes it much harder to lure the states into accepting conditions.

UPDATE 8: In Update 7, I said I couldn't assume that there was a resolution of the Commerce Clause issue, but I see now that there are 5 votes saying the Commerce Clause does not support the individual mandate, and: "The power to regulate commerce presupposes the existence of commercial activity to be regulated."

1st Circuit says Defense of Marriage Act is unconstitutional.

"The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns."

The court didn't rule on [whether] states without same-sex marriage cannot be forced to recognize gay unions performed in states where it's legal. It also wasn't asked to address whether gay couples have a constitutional right to marry.

ADDED: Here is the opinion. After concluding that the equal protection doctrine requires minimum scrutiny (but not "the extreme deference accorded to ordinary economic legislation"), the court switches to discussing federalism. Congress uses the concept of marriage in many federal programs involving taxing and spending, and it normally relies on the states' determinations of who is married, but — the court says — that doesn't mean Congress is required to do so.

The court looks at the 10th Amendment but distinguishes this case from Printz and New York v. United States, which involved Congress commandeering the internal operations of state or local government. And the court looks at the Spending Clause doctrine and finds no limitation, because Congress is merely defining the terms of various spending programs.

However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans' cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed.

That's quite a sentence! There's no violation of the 10th Amendment or the Spending Clause, but because federal choices affect how states may decide to exercise their powers, the court will give congressional decisions less deference.

In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.

The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009); cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a "considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens").

True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.

This is a remarkable move! The enumerated powers cases involve judicial line-drawing about what matters may be governed by federal law and what are left exclusively to the states. The cases about rights concern what is left to individual citizens. It's one thing to say that federalism concerns affect what is governed by federal law and what is left exclusively to the states, quite another to say that the realm that belongs to the individual increases or decreases based on federalism concerns. Our rights are bigger when states have interests and smaller when they don't? The court seems to be creating a hybrid of rights and state interests.

Or we might understand this as an idea about deference to Congress: The question isn't so much whether Congress has power or not, but whether the court will see the lack of power. What the court is doing is looking at all the factors that affect how closely it ought to look at what Congress has done. Although as a matter of doctrine, the official level of scrutiny is minimum — Congress need only have a legitimate interest that's rationally related to the policy it has adopted — the fact that this isn't just economic legislation makes the court look a little more closely and, separately, so does the fact that the states are burdened in an area they have traditionally controlled.

With the degree of scrutiny established, the court goes on to the interests that supposedly support DOMA. One is "preserving scarce government resources."

But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

Another purported interest is "to support child-rearing in the context of stable marriage," but the court finds "a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage."

A third interest is "moral disapproval of homosexuality":

But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

Lastly, it was argued that Congress, facing a period of changing state laws, had an interest in "freezing" the law in place, taking "a temporary time-out." But, the court says, DOMA isn't framed as a temporary measure.

If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect.... 

But what about deference to tradition — the tradition of marriage as the union of one man and one woman? Why can't Congress base its law on that?

Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

"If we consider this to be a civil right, and I do, I don’t think civil rights ought to be left up to a state-by-state approach."

"I think we should have a national policy on this."

Here comes the pull from the left on same-sex marriage. That's James Clyburn, who ranks 3rd among Democrats in the House.

Marriage is actually unusually hard to handle at the state level — which was why Congress passed the Defense of Marriage Act. If any state permits same-sex marriage, couples who want to marry can travel to that state. Are you going to allow individual states to decide whether to recognize that marriage? DOMA was a decision to say yes, but Obama has said he believes DOMA to be unconstitutional, and he withdrew from defending it in court. Presumably, in appointing federal judges, he hopes to find individuals who share that legal opinion. And the federal government uses marriage status for many purposes. It must either accept the same-sex marriages from the states or not.

So the federalism solution really doesn't work. I know I said — just this morning — that "Leave it to the states is a fine — truly excellent — way to package the issue and set it to the side." It's not as though I'm not aware of the legal problem. I teach the topic in law school classes frequently. It's only that I think the issue can be politically packaged that way. But I must acknowledge that a truly probing questioner would succeed in opening that package back up, and Clyburn is encouraging that inquiry.