The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.
Only eight of them predicted the court would do so.
“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”
A ruling on the constitutionality of the individual mandate is among the last pieces of business heading into the final week of the Supreme Court’s term. Bloomberg News last week e-mailed questionnaires to constitutional law experts at the top 12 U.S. law schools in U.S. News & World Report magazine’s 2012 college rankings.
Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up.
During arguments in March, four justices appointed by Republican presidents questioned Congress’s constitutional power to enact the mandate, including Chief Justice John Roberts and Justice Anthony Kennedy, who had been viewed as potential swing votes. A fifth, Justice Clarence Thomas, rarely speaks during courtroom sessions. Questioning by four Democratic appointees was more sympathetic to the provision, a centerpiece of President Barack Obama’s health-care law.
‘Hostile Questioning’
“There was certainly a lot of hostile questioning by the more conservative members of the court,” said Jesse Choper, a law professor at the University of California at Berkeley who described the court as likely to support the mandate. “It’s relatively straightforward -- if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”
There was broad agreement that the ruling, barely four months before November’s presidential election, has the potential to hurt the Supreme Court’s reputation as an impartial institution.
Eighteen of the 21 professors said the court’s credibility will be damaged if the insurance requirement -- which passed Congress without a single Republican vote -- is ruled unconstitutional by a 5-4 majority of justices appointed by Republican presidents.
‘Narrowest Majority’
“When you take the fact of a high-profile, enormously controversial and politically salient case -- to have it decided by the narrowest majority with a party-line split looks very bad, it looks like the court is simply an arm of one political party,” University of Chicago Law Professor Dennis Hutchinson said in an interview.
Nine of the law professors said if the coverage mandate is invalidated the justices are likely or very likely to throw out several related provisions, such as requiring insurance companies to offer policies without regard to pre-existing medical conditions. Five respondents said the justices will leave those provisions in place; seven called it a toss-up.
By a large margin, 15 of the 21 professors predicted the Supreme Court won’t kill the entire Affordable Care Act even if justices throw out the insurance mandate and related provisions. Only three said the rest of the statute is likely to be voided and three called it a toss-up.
Political Freight
A decision on Obama’s most prominent legislative accomplishment will be the Supreme Court’s most politically freighted ruling since 2000’s Bush v. Gore, which halted a ballot recount in Florida and gave Republican George W. Bush -- who lost the nationwide popular vote -- enough electoral votes to win the White House.
The law professors split over whether they expect Republican and Democratic court appointees to line up on opposing sides: Eight said a partisan divide is likely, eight said it isn’t likely, and five called it a toss-up.
“I continue to find it extremely unlikely that Justices Roberts and Kennedy will support a 5-4 decision that has such an insubstantial basis in 75 years of Supreme Court case law,” said Yale University Professor Bruce Ackerman, the only respondent who said the court is very likely to uphold the insurance-coverage requirement.
Choper, who was a clerk for Chief Justice Earl Warren in the 1960s, said in a telephone interview that questioning by justices doesn’t always predict how they’ll vote.
“You can be misled by oral arguments,” he said. “You can’t rely on their tone.”
‘Wing Nuts’
A party-line vote would prompt questions about political motives because most constitutional scholars thought courts would uphold a mandate before small-government Tea Party activists rallied Republicans around complaints that Congress exceeded its authority to regulate interstate commerce, said Harvard University Law Professor Charles Fried.
“It’s become just a very partisan battle cry on behalf of an argument which a few years ago was thought to be completely bogus,” Fried, who represented Republican President Ronald Reagan’s administration at the Supreme Court as U.S. solicitor general from 1985 to 1989, said in a telephone interview. “For objective observers on all sides, this was thought to be a lousy argument and the only people who were making it were sort of the wing nuts.”
In a separate Bloomberg National Poll of 1,002 adults released this week, 71 percent of Americans said politics will influence the Supreme Court’s ruling, compared with 20 percent who said the court will decide the case solely on legal merits.
Roberts Rules
University of Pennsylvania Professor Kermit Roosevelt said Kennedy is a key vote and that, “whatever happens,” Roberts is likely to be in the majority.
“If Kennedy joins the four Democratic appointees to uphold, I think Roberts will vote that way, too,” Roosevelt said in an e-mail. “If Kennedy goes the other way, Roberts will probably vote to strike it down.”
The Bloomberg News questionnaires were sent to 131 professors at the top law schools in U.S. News’s ranking who have taught or written about constitutional law or have professional experience with constitutional litigation, according to school biographies. Questions were sent to office e-mail addresses listed in faculty directories.
Law schools included were: Columbia University; Duke University; Harvard University; New York University; Northwestern University; Stanford University; the University of California at Berkeley; the University of Chicago; the University of Michigan; the University of Pennsylvania; the University of Virginia, and Yale University.
‘Disinterested Interpretation’
Hutchinson, who has edited the University of Chicago’s Supreme Court Review journal since 1981, said it’s important for the public to view the high court as staying above the political fray and providing “a disinterested interpretation” of the Constitution.
“We believe in something called the rule of law,” he said. “That’s why we have faith in courts, that they’re not just another arm of a political party, so it’s worth respecting their judgments.”
The Supreme Court has, during its history, often responded “over the course of a decade or two” to changing views in broader U.S. society on topics such as racial segregation and abortion, Harvard Professor Michael Klarman said.
Changing Law
If justices strike down the insurance mandate, it will show “that the ‘law’ in constitutional law is subject to change, based on politics, and in a much more rapid way than most people would have assumed,” Klarman said in an e-mail.
Respondents to the questionnaire were: Ackerman; Choper; Fried; Hutchinson; Klarman; Roosevelt; Whitman; Guy-Uriel Charles, Duke; Norman Dorsen, NYU; Jamal Greene, Columbia; Andrew Koppelman, Northwestern; Gillian Metzger, Columbia; Anne Joseph O’Connell, California; John David Ohlendorf, Northwestern; Richard Parker, Harvard; David Richards, NYU; Adam Samaha, Chicago; Neil Siegel, Duke; Fred Smith, California; Laurence Tribe, Harvard; G. Edward White, Virginia.
The health-care cases are National Federation of Independent Business v. Sebelius, 11-393; Department of Health and Human Services v. Florida, 11-398; and Florida v. Department of Health and Human Services, 11-400.
To contact the reporter on this story: Bob Drummond in Washington at bdrummond@bloomberg.net
To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net
Source: www.bloomberg.com
Vestas scraps Kent offshore wind factory plan - businessgreen.com
The UK's emerging offshore wind sector has been dealt a major blow, after Danish turbine manufacturer Vestas scrapped plans to build a factory in Kent that had been expected to create 2,000 jobs.
Vestas and the Port of Sheerness today issued a joint a statement announcing they had halted plans for the facility at a 70-hectare site where the manufacturer had planned to build its new 7MW V164 offshore wind turbines.
FURTHER READING
The statement said Vestas remained committed to the UK's wind energy market, and stressed that the company would continue to build and test blades at its R&D facility in the Isle of Wight.
"Vestas' strong commitment to the development of both the offshore and onshore wind industries is not affected by this decision," said Juan Araluce, chief sales officer for Vestas. "We will remain active across the two markets in the UK as they both continue to show considerable potential."
But the company provided no indication as to where it will now manufacture its next generation offshore turbines.
The move comes a year after Vestas signed a deal to secure exclusive rights to the land in Kent, with a view to building a manufacturing and installation facility for turbines that would supply the proposed Round 3 wind farms that will be located in deeper waters off the UK coast.
Ditlev Engel, Vestas chief executive, previously told BusinessGreen that the company would push the button on the investment as soon as sufficient orders were confirmed for its 7MW turbine.
A spokesman for Vestas told Reuters that the company had failed to secure any orders so far.
"Such a factory is conditional on concrete orders in our order book and we have not announced any signed orders at this point," he said. "We want a good pipeline of orders before we advance further and we do not have that at this point in time."
Last month Vestas announced that had delayed the pace of development for the 7MW machine. A prototype is now expected to be installed in Denmark during 2014, instead of 2013 as originally expected, with production starting "when the market is ready".
Round 3 developers are planning to start building the first wind farms in 2014-2016, however the bigger 6-7MW turbines are likely to be used for the later phases in 2018 onwards.
Trade association RenewableUK said it was disappointed by the news, but insisted the industry should not be downbeat as other manufacturers had factories in the pipeline, including Areva, which last week announced its ambition to set up a UK offshore wind turbine plant.
"Naturally we are disappointed with this decision, but as the world-leader in offshore wind, the UK remains an attractive place for manufacturers and members of the supply chain to have a base," said Maria McCaffery, chief executive of RenewableUK.
"Investors in both projects and employment are poised to follow through on pledges but delivery on green jobs needs certainty and confidence in the market, with clarity on implementation arrangements and timescales."
Mark Whitworth, chief executive of Peel Ports, said it would continue to seek contracts with other renewable energy companies.
"We are extremely disappointed that we have been unable to conclude the agreement with Vestas," he said. "However, we remain fully committed to the strategy outlined for the Port of Sheerness of attracting major renewables manufacturers to complement our valued heritage business within the significant footprint of the Port."
However, Vestas' decision will crank up pressure on the government to confirm the policy environment offshore wind developers can expect to operate in and take further steps to live up to its pledge of making the UK the world's most attractive investment environment for renewable energy.
A number of wind turbine firms, including US giant GE, are still mulling plans for new manufacturing facilities in the UK, but frustration is mounting at the government's failure to clarify the level of support renewable energy projects can expect through its electricity market reforms and the growing criticism the sector is facing from some Conservative MPs.
Friends of the Earth energy campaigner Guy Shrubsole said the news should act as a wake up call for the government to boost its support for offshore wind energy.
"The government is costing the UK jobs by failing to come up with a decent Energy Bill that supports renewables and gives investors certainty," he said. "Instead it's committing the country to a costly dash for gas that will bust our carbon targets and keep us dependent on imported gas.
"The government needs to see this as a dangerous warning that it's on the wrong path - and ensure it radically reforms the draft Energy Bill to deliver us clean, British energy and green jobs."
Source: www.businessgreen.com
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