SCOTUSBlog reports that Chief Justice Roberts, in his capacity as Circuit Justice for the Fourth Circuit, stayed a Maryland Court of Appeals opinion which had held that the collection of DNA of a person charged with–but not convicted of–a crime violated the Fourth Amendment. Most important to the Chief’s opinion was the fact that many states already have this practice in place, and the federal FBI database relies on these states participating. From the order:
Here there is, in addition, an ongoing and concrete harm to Maryland’s law enforcement and public safety interests. According to Maryland, from 2009—the year Maryland began collecting samples from arrestees—to 2011, “matches from arrestee swabs [from Maryland] have resulted in 58 criminal prosecutions.” Application 16. Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population. Crimes for which DNA evidence is implicated tend to be serious, and serious crimes cause serious injuries. That Maryland may not employ a dulyenacted statute to help prevent these injuries constitutes irreparable harm.
So much for just chilling out on the impregnable island fortress of Malta, or as I called it, the Island of Misfit Conservatives.
One of the lost teaching moments of the entire “You didn’t build that” meme is how that statement, by itself, is true. As explained in wonderful detail in Leonard Reed’s classic parable, “I, Pencil,” no one person can build anything in our modern economy. Imagine something as simple as a pencil. The graphite to write with, the wood casing, the latex for the eraser, the metal for the eraser-holder, the ink that is printed on the side of the pencil, etc. All of these are products drawn from across the globe, developed by countless people, all driven by invisible forces. Yet, miraculously, they all come together to form a simple pencil.
So it is true. No one person can say, “I built a pencil.” Simply put, you didn’t build that. We all did. Though, I think we may differ on who “we” are. The forces that permit the assembly of the pencil extend far beyond the public goods that governments provide (roads, schools, etc.). The forces that build a pencil are far greater than any one person can comprehend.
Here is a nice, modern take on “I, Pencil,” focusing on how a smart phone is built–“I, Smartphone.”
Steve Jobs, you may have led a courageous effort to develop the iPhone, but you didn’t built it.
Yet what journalist Elmer Davis once said of Roosevelt could be said as well of Obama: “You could not quarrel with a single one of his generalities.” Nobody denies that man is a social being who relies on others from the moment he is born. Indeed, when Obama said in Roanoke that “somebody helped to create this unbelievable American system that we have that allowed you to thrive,” he could have cited Milton Friedman or any one of a dozen other free-market economists as evidence.
Example: In Leonard Read’s famous essay “I, Pencil” – later popularized by Friedman – Read demonstrates the miracle of the free market’s invisible hand. Nobody, he explains, can make a pencil by himself. A pencil’s wood comes from cedar trees in California; can you make a saw or fell a tree? It is shipped by rail; can you run a railroad? It is dried in kilns; can you build a kiln? The graphite comes from mines in Ceylon; can you mine graphite? Each pencil is coated in lacquer; can you make lacquer? The brass ferrule – well, you get the point.
Then there was the president’s statement in April after the oral arguments in the ObamaCare case did not go well before the Supreme Court when he seemed to be jawboning the court. Take a look at this.
(BEGIN VIDEO CLIP)
OBAMA: I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
(END VIDEO CLIP)
WALLACE: Justice, what did you think of that?
SCALIA: It’s unusual. But as I say, I don’t criticize the president publicly and he normally doesn’t criticize me.
WALLACE: Did you feel any pressure as a result of that to vote a certain way?
SCALIA: Yes. What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.
WALLACE: Did you view that as a threat?
SCALIA: I didn’t view it as a threat. I’m not even sure I heard it.
WALLACE: Well, you heard it now.
SCALIA: You brought it to my attention.
WALLACE: And now, you — come on, you heard it.
As a matter of just fact, as a legal scholar, was the former constitutional law lecturer correct how unprecedented is it for a court or as the president put it there an unelected group of people to overturn an act of Congress.
SCALIA: Oh, I’m not going to engage in that debate with —
Just for fun, I decided to look back at my instant analysis of oral arguments in NFIB v. Sebelius. This discussion on the taxing power seems interesting, namely because Chief Justice Roberts seems quite incredulous, and doubts the exact taxing argument he ultimately accepted.
You can listen to it here at The Affordable Care Act Cases 52:54 – 53:25 The Oyez Project at Chicago-Kent. Just hit the play button below.
Scalia firsts asks about the taxing power.
JUSTICE SCALIA: The President said it wasn’t a tax, didn’t he?
GENERAL VERRILLI: Well, Justice Scalia, what the — two things about that, first, as it seems to me, what matters is what power Congress was exercising. And they were — and I think it’s clear that — that the — the — they were exercising the tax power as well as -JUSTICE
SCALIA: You’re making two arguments. Number one, it’s a tax; and number two, even if it isn’t a tax, it’s within the taxing power. I’m just addressing the first.
GENERAL VERRILLI: If the President said -JUSTICE
SCALIA: Is it a tax or not a tax? The President didn’t think it was.
GENERAL VERRILLI: The President said it
wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance.
I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.
Kagan, repeating a point she made yesterday, noted that Congress determined to not call it a tax:
JUSTICE
KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you’re suggesting we should just look to the practical operation. We shouldn’t look at labels. And that seems right, except that here we have a case in which Congress determinedly said this is not a tax, and the question is why should that be irrelevant?
GENERAL VERRILLI: I don’t think that that’s a fair characterization of the actions of Congress here, Justice Kagan. On the — December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to39 on that proposition.
The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don’t think this is a situation where you can say that
Congress was avoiding any mention of the tax power.
It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn’t done so, it seems to me that it’s — not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.
What obligation? CJ calls BS on SG:
CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
GENERAL VERRILLI: Well -CHIEF
JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is — in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say -CHIEF
JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.
GENERAL VERRILLI: Well, I — you know, I don’t — there is nothing that I know of that illuminates that, but certainly
The Solicitor General said the Court has an “obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.”
To that, the Chief responds quite critically, and interrupts the Solicitor General, and asks if it is a tax, why didn’t Congress call it a tax. The Chief does not seem particularly convinced on this issue, with the SG having a nonsensical answer of “there is nothing I know of that illuminates that.”
Yet, that is the *exact* issue he later accepted.
That is the entirety of the questions the Chief asked SG about the taxing power.
Interestingly, here is Verrilli’s closing argument:
But if there is any doubt about that under the Commerce Clause, then I urge this Court to uphold the minimum coverage provision as an exercise of the taxing power.
Under New York v. United States, this is precisely a parallel situation. If the Court thinks there is any doubt about the ability of Congress to impose the requirement in 5000A(a), it can be treated as simply the predicate to which the tax incentive of 5000A(b) seeks accomplishment. And the Court, as the Court said in New York, has a solemn obligation to respect the judgments of the democratically accountable branches of government, and because this statute can be construed in a manner that allows it to be upheld in that way, I respectfully submit that it is this Court’s duty to do so.