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Jameson Jones is now batting 1.000 at One First Street. Justice Scalia (his former boss) wrote an opinion for the unanimous Court in Lexmark Int’l, Inc. v. Static Control Components, Inc. Congratulations!

Well, the Chief Justice of the United States didn’t say that, but I’m sure he thinks it. This was from the Chief Justice of the Vatican (I didn’t even know such an office existed!), and he has a lot to say about Hobby Lobby:

The Vatican’s chief justice feels that President Barack Obama’s policies have been hostile toward Christians.

In an interview with Polonia Christiana magazine –and transcribed by Life Site News — Cardinal Raymond Burke said that Obama “promotes anti-life and anti-family policies.”

“It is true that the policies of the president of the United States have become progressively more hostile toward Christian civilization. He appears to be a totally secularized man who aggressively promotes anti-life and anti-family policies,” Burke told the magazine.

The former archbishop of St. Louis stated that Obama is trying to “restrict” religion.

“Now he wants to restrict the exercise of the freedom of religion to freedom of worship, that is, he holds that one is free to act according to his conscience within the confines of his place of worship but that, once the person leaves the place of worship, the government can constrain him to act against his rightly-formed conscience, even in the most serious of moral questions,” Burke said.

Burke took a swipe against Obama’s Affordable Care Act over the law’s birth control mandate, saying “such policies would have been unimaginable in the United States even 40 years ago.”

“In a democracy, such a lack of awareness is deadly,” Burke told the magazine. “It leads to the loss of the freedom which a democratic government exists to protect. It is my hope that more and more of my fellow citizens, as they realize what is happening, will insist on electing leaders who respect the truth of the moral law as it is respected in the founding principles of our nation.”

As I noted in a comment to my post about Judge Posner’s fashion show, I was interested in potentially filing an amicus brief in support of rehearing en banc. Though, 2 minutes of research quickly disabused me of that idea. In the 7th Circuit, as construed by then-Chief Judge Easterbrook (in chambers), there is no such thing as an amicus in support of rehearing en banc.

Rule 29(e) of the Federal Rules of Appellate Procedure governs the time for filing of Amicus Curiae.

(e) Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.

In case you thought that gave you 7 days from the filing of the petition for rehearing en banc, you were wrong. Chief Judge Easterbrook (in chambers) reads the rule differently. It’s 7 days from the merits brief!

The problem with relying on Rule 29(e) is that the brief must be filed within 7 days of “the principal brief of the party being supported”. The “principal brief” of Thomas Fry, the party being supported, was filed on April 10, 2008, more than a year before the potential amici tendered their brief. A “principal brief” is the opening brief on the merits, as opposed to a reply brief or another variety of brief. A petition for rehearing en banc is not a “brief” of any kind; further briefing may follow a grant of rehearing, but the petition for rehearing is a request for discretionary relief rather than a brief. Rule 29, which covers amicus briefs, appears in a sequence of rules (28 through 32.1) that deals with the contents, form, and timing of merits briefs; Rule 34 deals with oral argument; and Rules 35 through 41 with post-decision matters. It would be unsound to treat the phrase “principal brief” in Rule 29(e) to refer to a document other than the opening brief on the merits.

In other words, Chief Judge Easterbrook reads the rule to eliminate the ability to submit an amicus in support of rehearing anytime, even if both parties consent to its filing. Per se, it will *always* be untimely. That is a very narrow interpretation of the rule.

In general, I’ve heard that the 7th Circuit is quite hostile to amici. The leading 7th Circuit decision on point is from Judge Posner (in chambers).

No matter who a would-be amicus curiae is, therefore, the criterion for deciding whether to permit the filing of an amicus brief should be the same: whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs. The criterion is more likely to be satisfied in a case in which a party is inadequately represented; or in which the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or in which the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide.National Organization for Women, Inc. v. Scheidler, supra, 223 F.3d at 616-17; Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir.1997) (chambers opinion); Georgia v. Ashcroft, 195 F.Supp.2d 25, 32 (D.D.C.2002)

The other cases cited are also (no surprise) Posner opinions.

You’ve been warned.

In NFIB v. Sebelius, the Chief Justice applied a saving construction to the Affordable Care Act’s penalty, and treated it as a tax, to uphold its constitutionality. (Thom Lambert has a great piece in Regulation Magazine on this topic). But, the Chief Justice placed limitations on the application of the saving construction. The first such limitation stated that because the cost of the “tax” is less than the cost of insurance, a person has a legitimate choice, and there is no coercion:

The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. FN 8 It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture. 259 U. S., at 37.

FN 8 In 2016, for example, individuals making $35,000 a year are expected to owe the IRS about $60 for any month in which they do not have health insurance. Someone with an annual income of $100,000 a year would likely owe about $200. The price of a qualifying insurance policy is projected to be around $400 per month. See D. Newman, CRS Report for Congress, Individual Mandate and Related Information Re-quirements Under PPACA 7, and n. 25 (2011).

Though it is not entirely correct that the “tax” can never be more than the cost of insurance.

The relevant statute is (our favorite) 26 U.S. Code § 5000A. The penalty starts at $95 a month, and will increase to $325 in 2015,  $695 in 2016, and will grow with inflation after that. It’s expected to hit $800 a month by 2023.   For wealthier Americans, the penalty (when fully phased in) will be even greater, between 1% and 2.5% of income.

(B) Percentage of income

An amount equal to the following percentage of the excess of the taxpayer’s household income for the taxable year over the amount of gross income specified in section 6012 (a)(1) with respect to the taxpayer for the taxable year:

(i) 1.0 percent for taxable years beginning in 2014.

(ii) 2.0 percent for taxable years beginning in 2015.

(iii) 2.5 percent for taxable years beginning after 2015.

Though, this penalty is capped by statute.

The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to failures described in subsection (b)(1) shall be . . .  amount equal to the national average premium for qualified health plans which have a bronze level of coverage, provide coverage for the applicable family size involved, and are offered through Exchanges for plan years beginning in the calendar year with or within which the taxable year ends.

In plain English, this says that the amount of the penalty (not “tax” in case anyone bothered to read the law Congress passed) will not exceed the “national average premium for qualified health plans which have a bronze level of coverage.” So the Chief is wrong to say that the amount will always be less. Why? Because the cost of bronze plans varies by states. In some states it may be more expensive than other. Due to the very nature of an average, in some states it will be above the average, and in some states it will be below the average. In no way can the prices be the same nationwide.

Now it may be true for “most Americans” (those above the average) but not for all Americans (below the average). In fact, the wealthiest Americans, who live in states with the lowest bronze-priced plans, will almost certainly be faced with a false choice–the “tax” will be more expensive than the cost of insurance. 2% of their income will almost certainly be more than the cost of the cheapest bronze plan.

Let’s do some math.  CBO projects that the average national bronze plan will be $5,000 a year in 2016. Therefore, if the penalty would be capped at $5,000 a year, who would pay a $5,000 penalty? An individual earning $200,000 a year (200,000 * .025 = 5,000). But what if the cheapest available plan that qualifies under the Affordable Care Act in that person’s state is less than $5,000 a year? Say the cheapest bronze plan is $4,000 a year.  Because the statute pegs the penalty to the national average, rather than a local average–and it is impossible to buy across state lines–for some wealthier individuals, there is no meaningful choice.

By it’s very terms, this would seem to run headlong into the Chief Justice’s saving construction, which misstated the nature of the statutory cap. At this point, it would no longer be a “constitutional tax” but an “unconstitutional penalty.”

Certainly, somewhere, there is some wealthy person who stands to pay more under the Obamacare “tax” than insurance would cost. Such a challenge could assert that there are limits on the scope of the penalty. 

Cross-Posted at Law & Liberty.

This is Virginia Louise Minor, who attempted to vote in an election. Her case wound its way all the way to the Supreme Court, which held in Minor v. Happersett that voting was not a privilege or immunity of citizenship.

This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:

• He has made her, if married, in the eye of the law, civilly dead.
• He has taken from her all right in property, even to the wages she earns.
• He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.

The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.