ACLU, Heritage Foundation Weigh In On Supreme Court's Next Term

By Andrea Salazar

Health care reform and Arizona’s immigration law are expected to be two of the major issues the United States Supreme Court tackles during its fall 2011 term starting in October, and legal analysts representing both ends of the political spectrum are expecting victories for their sides.

The American Civil Liberties Union and the Heritage Foundation held dual events in Washington, D.C. Wednesday previewing the upcoming term.

Both organizations touched on the subject of ‘Obamacare’ and agreed that politics must have been involved in the decision to forgo appealing a lower court’s ruling deeming the health care reform law’s individual mandate unconstitutional.

However, Paul Clement, former U.S. solicitor general and partner at Bancroft PLLC, said the question of the mandate’s constitutionality is only the beginning.

“A lot of the focus has been on the individual mandate, but the individual mandate is the tip of the constitutional iceberg when it comes to this case,” he said, “Because you have the question of whether or not the individual mandate is constitutional, if the individual mandate is, in fact, not constitutional, then you have the question of what effect does that have on the rest of this remarkably long and remarkably multifarious statute.”

The ACLU has not officially released an position on the matter, but its legal director, Steven Shapiro, said the mandate falls under the commerce clause and is, therefore, constitutional.

As for Arizona’s immigration law, the constitutionality of which could impact “copycat” laws in states like Georgia, Alabama, Utah, Indiana and South Carolina, Clement says that the administration may face challenges trying to make its case.

“The burden’s on the federal government to explain why it is that immigration is sufficiently different from every other area of the law that a state can’t effectively try to enforce the federal substantive law,” Clement said.

The ACLU’s Omar Jadwat, however, argued that S.B. 1070 goes beyond a federal versus state issue but also has major civil rights implications.

“It’s reminiscent of Jim Crow laws,” Jadwat said, explaining that penalties for being unable to prove one’s legal status creates a system where “certain people are essentially not persons.”

Rulings on the cases the Supreme Court accepts are expected in late June.