In the most widely anticipated Supreme Court Decision since Bush v. Gore in 2000, the Patient Protection and Affordable Care Act, President Obama's signature legislative achievement, was upheld in a narrow 5 to 4 decision. Many believed that the law would be found to be unconstitutional because of a provision known as the individual mandate, which requires people to purchase health insurance or pay a penalty. In a ruling that surprised many, the Court found that the mandate was Constitutional under Congress’ authority to levy a tax.
As we explain below, the Court did eliminate a provision requiring states to comply with new eligibility requirements for Medicaid or risk losing their funding, but the fundamental core of the law remains intact. Beyond the ruling, the Court made two other significant rulings before adjourning for the summer and Congress moved forward with several key pieces of legislation.
All of these stories are detailed below.
Patient Protection and Affordable Care Act Survives Supreme Court Challenge
Court Rules on Arizona’s Controversial Immigration Law
On Monday, the Supreme Court repealed several provisions of Arizona’s controversial immigration law, though it did leave it’s most contentious provision, which grants law enforcement officers the right to request the immigration documents of person it suspects of being in the country illegally, unresolved.
While declining to overturn the controversial clause, the Court said that it could “raise constitutional concerns,” but ultimately decided that the requests for documentation could continue if “the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released.”
Although the Obama Administration had been seeking to have the entire law overturned, they hailed the decision as it invalidated three other provisions the President found objectionable. They were the following:
- A provision of the law made it a misdemeanor to be in the country illegally.
- Another makes it a misdemeanor for illegal immigrants to work in the state of Arizona.
- The third allows officers to make a warrantless arrest of suspects whom they believe have committed a crime that would make them deportation targets.
The Court Expands Upon It’s Earlier Ruling in Citizens United
In it’s third significant ruling this week, the Supreme Court announced on Monday that it was overturning a one hundred year-old Montana law that prohibited corporate spending in state elections, ruling 5-4 that the measure violates the First Amendment rights of companies to spend funds on elections.
In reaching the decision, the court relied upon the precedent established in it’s 2010 Citizens United v. Federal Election Commission decision, which found that corporations and unions have a free speech right to spend unlimited amounts of money for and against candidates.
The Montana case went to the Supreme Court after the state Supreme Court last year chose to uphold the state law banning corporate spending on elections. At the time, the state’s high court said that even after the Citizens United ruling, the state history of corporate control and corruption in elections justified a ban on spending by corporations regulated by the state.
House Votes to Hold Attorney General Eric Holder in Contempt
Late Thursday afternoon, the House of Representatives voted to hold U.S. Attorney General Eric Holder Jr. in contempt of Congress, making him the first sitting Attorney General held in contempt of Congress in U.S. history.
The vote came after weeks of often tense negotiations between the Justice Department and House Republicans, led by Oversight Committee Chairman Darrell Issa (R-CA) over demands that Holder turn over files relating to the Administrations “Fast and Furious” Operation. Even the vote itself was controversial, as over 100 Democrats walked off the floor in protest. The measure ultimately passed 255 to 67.
“Fast and Furious” was an operation run by the Bureau of Alcohol, Tobacco, Firearms and Explosives, where agents allowed more than 2,000 guns to be released into the public with the intention of tracking those weapons to significant figures in the Mexican drug cartels. Tragically, two guns tied to the operation were found at the scene of the death of a U.S. Border Patrol agent.
In the resulting House investigation of the incident, Republicans expressed frustration with Holder and the Justice Department, claiming that Holder was actively thwarting their work by denying their requests for documents. Justice officials say they have cooperated with the investigation, releasing over 7,600 documents relating to the gun operation and making several senior officials available to testify. Holder testified on the matter nine times on Capitol Hill over the past 14 months.
Despite the vote on Thursday, it is unclear whether House Republicans will get the documents they seek. With the vote of contempt, the decision to file criminal charges against the Attorney General will be made by the U.S. Attorney for the District, Ronald C. Machen Jr, who it is worth noting reports to Holder.
Long Awaited Deal on Transportation Believed Near
Congressional aides with knowledge of the negotiations, confirmed that House and Senate leaders are nearing a compromise that will allow the chambers to proceed with a two-year bill to fund federal transportation programs.
Part of the agreement is the elimination of two controversial provisions considered by Democrats to be unacceptable and that had garnered a veto threat from the President. The first provision was language included in the House bill requiring the Obama Administration to approve the Keystone XL pipeline upon the law’s passage. The second would have prevented the Environmental Protection Agency from regulating ash generated by coal-burning power plants. Removal of both provisions indicates a significant victory for Democrats who had long fought for their removal.
House Republicans won a significant concession as well, when they were able to reduce the amount of time the Department of Transportation is allowed to review transportation projects for environmental purposes.
Should this compromise hold, passage of the bill by both chambers is almost certain to occur when Congress returns from it’s July 4th recess.
GOP Senators Introduce New Cybersecurity Measure
In the hopes of jumpstarting stalled-negotiations, several senior Republican Senators this week introduced a revised version of their cybersecurity bill, the Secure IT Act.
The bill, introduced by Senators John McCain (R-AZ), Kay Bailey Hutchison (R-TX), and Saxby Chambliss (R-GA) now resembles very closely, the Cyber Intelligence Sharing and Protection Act (CISPA), which passed in the House in April with strong bipartisan support. CISPA creates a framework for industry, on a volunteer basis, to share cyber threat information amongst themselves and with the federal government.
Despite CISPA’s bipartisan support in the House, it remains unclear what the McCain bill’s chances are for passage in the Senate where Democratic leadership and the President continue to prefer the Cybersecurity Act of 2012, which was introduced by Senators Lieberman and Collins and would grant the Department of Homeland Security new wide-ranging authority to pursue cyber threats.
To date, Senator McCain has effectively blocked consideration of the Cybersecurity Act by placing a hold, which requires a 60-vote majority to overcome, arguing the standards the bill would impose would create unnecessary burdens on businesses.
As a result, a third option is being pursued by Senators Sheldon Whitehouse (D-RI) and Jon Kyl (R-AZ), who are working on a compromise that would seek to encourage, though not require, the cooperation of industry with the government on addressing emerging threats.
Looking forward, we expect Senator Majority Leader Reid to schedule time for debate after Congress returns from the July 4th recess but before adjourning for the summer in August.
House Communications Subcommittee Holds Hearing on the “Future of Video”
The Communications and Technology Subcommittee of the House Energy and Commerce Committee held a hearing on June 27, 2011 on the “Future of Video.” The hearing, which featured witnesses from the cable, broadcast, satellite, and motion picture industries, as well as representatives from Public Knowledge (a consumer group) and “new” media companies Netflix, Roku, and Sky Angel, focused on changes that have occurred in the video marketplace in recent years and whether and to what extent existing laws (such as the 1976 cable compulsory license and the 1992 Cable Act) are outdated and should be revised. The general consensus of the members participating in the hearing and most of the witnesses was that the time has come to take a new look at rules governing the retransmission of broadcast signals (e.g., retransmission consent, must carry, and non-duplication requirements) and at rules governing “access” to non-broadcast programming. In related developments, Rep. Walden (R-OR), chairman of the Subcommittee, announced that there would be a further hearing on the “Future of Data” and Sen. Rockefeller (D-WV), chairman of the Senate Commerce Committee reportedly has indicated that there will be a Senate hearing on the Future of Video sometime in July.