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Answer the following question in 250 words or less and the 3 other questions in the attached document. In its recent decision in Nat’l Fedn. of Indep. Bus. v. Sebelius, 567 U.S. ___, 2012 U.S. LEXIS 4876 (June 28, 2012), the Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act a/k/a “ObamaCare”. In its decision, the Court, at various points, cites to its 1937 decision in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, as useful precedent. Please explain what Jones & Laughlin Steel has to do with the ObamaCare decision.The info needed for this question are in the 2 other attached documents labeled “question info”


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1. 250 word or less response to the following discussion
Employees of Bond Bakery, represented by the Bakers Union, are on strike for
higher wages. A representative of the Union approaches the manager of Acme
Supermarket and requests that he cease stocking Bond Bread. The representative
informs the manager that if he does not comply, the Union will distribute handbills
in front of Acme to Acme customers. He shows the manager a sample handbill which
reads: “Acme sells Bond Bread. Bond employees on strike. Do not patronize Acme
Supermarket.” The manager refuses to comply. The Union responds by distributing
handbills only at customer entrances and by taking out a full-page advertisement in
the local newspaper. This activity turns away customers and induces two
deliverymen not to complete deliveries to Acme. Do any of the Union’s activities
violate Section 8(b)(4)(B)?
In NLRB v. Retail Store Employees Union, Local No. 1001 (Safeco Title Ins. Co.), 447 U.S.
607, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980), the Supreme Court retreated somewhat from the
broad permission given in Tree Fruits to product picketing at the secondary site. Safeco Title
Insurance Company did business with five small title companies, which searched land titles,
performed escrow services and sold title insurance; over 90 percent of their gross incomes derived
from the sale of Safeco insurance. When contract negotiations between Safeco and the Union
reached an impasse, the employees went on strike and picketed not only at Safeco’s office in
Seattle but also at each of the five local title companies. Handbills (the legality of which was not
2. P r o b l e m s f o r D i s c u s s i o n
1.Assume that a chain store has three locations within the city limits of
Metropolis and eleven others scattered about the state, seventy more in the
Midwest. All employees are governed by the same corporate policies concerning
wages, hours, and benefits. There is little interchange of employees from one
location to another and they are supervised by each store’s management. The
local store management has no authority to make or alter company policy on
wages, hours, and benefits. How can a single store be a unit appropriate for
bargaining on those issues if the store management has no authority to make
an agreement on these issues?
2 Assume the union wins an election at a single store. It negotiates an
agreement that improves wages and benefits. To discourage further unionization,
the Company extends the economic terms unilaterally to all its other employees.
For whom has the union bargained?
3.The union has succeeded in winning elections in six of the Company’s stores
in the Midwest. It would like to bargain a single master agreement covering
all of them. The Company has refused, insisting on bargaining on an individual
“bargaining unit” basis. The parties agree to negotiate the collective agreement
for the Metropolis store first. They will then bargain contracts for each of the
other five stores at their locations. The union has presented a package of
economic demands for the Metropolis store’s employees, i.e., a 5% wage
increase, lower deductible on insurance, more vacation. What is the bargaining
unit the union is bargaining for in Metropolis?
Below you will find four provisions contained in an employee handbook in a nonunionized
setting. Please explain whether and how any of these provisions violate the National Labor
Relations Act:
§1 – Standards of Conduct
The following conduct is unacceptable:
1. Being uncooperative with supervisors, employees, guests and/or regulatory agencies or
otherwise engaging in conduct that does not support the Employer’s goals and objectives.
2. Divulging Employer-private information to employees or other individuals or entities
that are not authorized to receive that information.
3. Making false, vicious, profane or malicious statements toward or concerning the
Employer or any of its employees.
4. Unlawful or improper conduct off the Employer’s premises or during non-working hours
which affects the employee’s relationship with the job, fellow employees, supervisors, or
the Employer’s reputation or good will in the community.
§2 – Confidentiality Policy
1. During the course of your employment, you may come into the possession of trade
secrets or confidential information belonging to Employer, including customer lists and
information, financial information, leases, licenses, agreements, sales figures, business
plans, wage information and proprietary information. All of the information, whether
about Employer, its customers, suppliers, or employees is strictly confidential. This
information must not be disclosed to anyone, including family members, individuals
outside Employer, or to any Employer employee who is not entitled to the information,
either during or after your employment. Any doubts about confidentiality of information
should be resolved in favor of confidentiality.
2. Each employee’s personnel records are considered confidential and will normally be
available only to the named employee and senior management.
3. It is not possible to provide a complete list of every possible offense that will, like
unsatisfactory job performance, result in discipline, including discharge. However, in
order to give you some guidance, an example of unacceptable conduct consists of the
unauthorized disclosure or use of any confidential information about Employer, its
employees or its customers, or any trade secrets that you have learned through your
employment with Employer.
§3 – Sexual Harassment Policy
Failure of any employee involved in the investigation of a harassment complaint to keep the
complaint confidential shall be a separate violation of this policy. A separate violation shall
also occur if any retaliatory action is taken against or directed at any employee that has made
a harassment complaint. Violations will result in disciplinary action. Employer reserves the
right to provide information regarding any harassment complaint or retaliatory conduct to
the necessary legal authorities if Employer in its sole discretion, believes illegal conduct has
§ 4 – Social Media Policy
Employees are prohibited from posting information regarding Employer on any social
networking sites (including, but not limited to, Yahoo finance, Google finance, Facebook,
Twitter, LinkedIn, MySpace, and YouTube), in any personal or group blog, or in any online
bulletin boards, chat rooms, forum, or blogs (collectively, ‘Personal Electronic
Communications’), that could be deemed material nonpublic information or any information
that is considered confidential or proprietary. Such information includes, but is not limited
to, company performance, contracts, customer wins or losses, customer plans, maintenance,
shutdowns, work stoppages, cost increases, customer news or business related travel plans or
schedules. Employees should avoid harming the image and integrity of the company and any
harassment, bullying, discrimination, or retaliation that would not be permissible in the
workplace is not permissible between co-workers online, even if it is done after hours, from
home and on home computers.
Please explain whether and how any of the provisions above violate the National Labor
Relations Act:
Nos. 11-393, 11-398 and 11-400 SUPREME COURT OF THE UNITED STATES
132 S. Ct. 2566; 183 L. Ed. 2d 450; 2012 U.S. LEXIS 4876; 80 U.S.L.W. 4579; 2012-2
U.S. Tax Cas. (CCH) P50,423; 109 A.F.T.R.2d (RIA) 2563; 53 Employee Benefits
Cas. (BNA) 1513; 23 Fla. L. Weekly Fed. S 480
March 26, 2012, Argued. March 27, 2012, Argued. March 28, 2012, Argued June 28,
2012, Decided
The LEXIS pagination of this document is subject to change pending release of the final
published version.
States HHS, 648 F.3d 1235, 2011 U.S. App. LEXIS 16806 (11th Cir. Fla., 2011)
DISPOSITION: The court of appeals’ judgment was reversed insofar as it struck down §
5000A and permitted withdrawal of all Medicaid funding under § 1396c. The judgment
was otherwise affirmed. 5-4 Decision; 3 opinions; 1 concurrence in part and dissent in
part; 2 dissents.
[*2571] [**460] In 2010, Congress enacted the Patient Protection and Affordable Care
Act in order to increase the number of Americans covered by health
insurance and decrease the cost of health care. One key provision is the individual
mandate, which requires most Americans to maintain “minimum essential” health
insurance coverage. 26 U.S.C. §5000A. For individuals who are not exempt, and who do
not receive health insurance through an employer or government program, the means of
satisfying the requirement is to purchase insurance from a private company. Beginning in
2014, [*2572] those who do not comply with the mandate must make a “[s]hared
responsibility payment” to the Federal Government. §5000A(b)(1). The Act provides that
this “penalty” will be paid to the Internal Revenue Service with an individual’s taxes, and
“shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)(1).
Another key provision of the Act is the Medicaid expansion. The current Medicaid
program offers federal funding to States to [***2] assist pregnant women, children, needy
families, the blind, the elderly, and the disabled in obtaining medical care. 42 U.S.C.
§1396d(a). The Affordable Care Act expands the scope of the Medicaid program and
increases the number of individuals the States must cover. For example, the Act requires
state programs to provide Medicaid coverage by
Page 1
2014 to adults with incomes up to 133 percent of the federal poverty level, whereas many
States now cover adults with children only if their income is considerably lower, and do
not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act increases federal
funding to cover the States’ costs in expanding Medicaid coverage. §1396d(y)(1). But if a
State does not comply with the Act’s new coverage requirements, it may lose not only the
federal funding for those requirements, but all of its federal Medicaid funds. §1396c.
Twenty-six States, several individuals, and the National Federation of Independent
Business brought suit in Federal District Court, challenging the constitutionality of the
individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh
Circuit upheld the Medicaid expansion as a valid exercise of Congress’s [***3] spending
power, but concluded that Congress lacked authority to enact the individual mandate.
Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left
the rest of the Act intact.
Held: The judgment is affirmed in part and reversed in part. 648 F. 3d 1235, affirmed in
part and reversed in part.
1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II,
concluding that the Anti-Injunction Act does not bar this suit.
The Anti-Injunction Act provides that “no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any court by any person,” 26
U.S.C. §7421(a), [**461] so that those subject to a tax must first pay it and then sue for a
refund. The present challenge seeks to restrain the collection of the shared responsibility
payment from those who do not comply with the individual mandate. But Congress did
not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act.
The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label
cannot control whether the payment is a tax for purposes of the Constitution, but it does
determine the application of the [***4] Anti-Injunction Act. The Anti-Injunction Act
therefore does not bar this suit. Pp. 11-15.
2. CHIEF JUSTICE ROBERTS concluded in Part III-A that the individual mandate is not
a valid exercise of Congress’s power under the Commerce Clause and the Necessary and
Proper Clause. Pp. 16-30.
(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, § 8, cl. 3
(emphasis added). The power to regulate commerce presupposes the existence of
commercial activity to be regulated. This Court’s precedent reflects this understanding:
As expansive as this Court’s cases construing the scope of the commerce power have
been, they uniformly describe the power as reaching “activity.” [*2573] E.g., United
States v. Lopez, 514 U.S. 549, 560, 115 S. Ct. 1624, 131 L. Ed. 2d 626. The individual
mandate, however, does not regulate existing commercial activity. It instead compels
individuals to become active in commerce by purchasing a product, on the ground that
their failure to do so affects interstate commerce.
Construing the Commerce Clause to permit Congress to regulate individuals precisely
because they are doing nothing would open a new and potentially vast domain to
congressional authority. Congress [***5] already possesses expansive power to regulate
what people do. Upholding the Affordable Care Act under the Commerce Clause would
give Congress the same license to regulate what people do not do. The Framers knew the
difference between doing something and doing nothing. They gave Congress the power
to regulate commerce, not to compel it. Ignoring that distinction would undermine the
principle that the Federal Government is a government of limited and enumerated
powers. The individual mandate thus cannot be sustained under Congress’s power to
“regulate Commerce.” Pp. 16-27.
(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause
as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior
cases upholding laws under that Clause involved exercises of authority derivative of, and
in service to, a granted power. E.g., United States v. Comstock, 560 U.S. ___, 130 S. Ct.
1949, 176 L. Ed. 2d 878. The individual mandate, by contrast, vests Congress with the
extraordinary ability to create the necessary predicate to the exercise of an enumerated
power and draw within its regulatory scope those who would otherwise be outside of it.
Even [***6] if the individual mandate is “necessary” to the Affordable Care Act’s other
reforms, such an expansion of federal power is not a “proper” means for making those
reforms effective. Pp. 27-30.
3. CHIEF JUSTICE ROBERTS concluded [**462] in Part III-B that the individual
mandate must be
132 S. Ct. 2566, *2572; 183 L. Ed. 2d 450, **460; 2012 U.S. LEXIS 4876, ***2; 80
U.S.L.W. 4579
Page 2
construed as imposing a tax on those who do not have health insurance, if such a
construction is reasonable.
The most straightforward reading of the individual mandate is that it commands
individuals to purchase insurance. But, for the reasons explained, the Commerce Clause
does not give Congress that power. It is therefore necessary to turn to the Government’s
alternative argument: that the mandate may be upheld as within Congress’s power to “lay
and collect Taxes.” Art. I, § 8, cl. 1. In pressing its taxing power argument, the
Government asks the Court to view the mandate as imposing a tax on those who do not
buy that product. Because “every reasonable construction must be resorted to, in order to
save a statute from unconstitutionality,” Hooper v. California, 155 U.S. 648, 657, 15 S.
Ct. 207, 39 L. Ed. 297, the question is whether it is “fairly possible” to interpret the
mandate as imposing such a tax, Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 76 L.
Ed. 598. [***7] Pp. 31-32.
4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part
III-C, concluding that the individual mandate may be upheld as within Congress’s power
under the Taxing Clause. Pp. 33-44.
(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a
“penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It
does not, however, control whether an exaction is within Congress’s power to tax. In
answering that constitutional question, this Court follows a functional approach,
“[d]isregarding the designation of the exaction, and viewing its substance and
application.” United States v. Constantine, [*2574] 296 U.S. 287, 294, 56 S. Ct. 223, 80
L. Ed. 233. Pp. 33-35.
(b) Such an analysis suggests that the shared responsibility payment may for
constitutional purposes be considered a tax. The payment is not so high that there is really
no choice but to buy health insurance; the payment is not limited to willful violations, as
penalties for unlawful acts often are; and the payment is collected solely by the IRS
through the normal means of taxation. Cf. Child Labor Tax Case, 259 U.S. 20, 36-37, 42
S. Ct. 449, 66 L. Ed. 817 . [***8] None of this is to say that payment is not intended to
induce the purchase of health insurance. But the mandate need not be read to declare that
failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches
negative legal
consequences to not buying health insurance, beyond requiring a payment to the IRS.
And Congress’s choice of language–stating that individuals “shall” obtain insurance or
pay a “penalty”–does not require reading §5000A as punishing unlawful conduct. It may
also be read as imposing a tax on those who go without insurance. See New York v.
United States, 505 U.S. 144, 169-174, 112 S. Ct. 2408, 120 L. Ed. 2d 120. Pp. 35-40.
(c) Even if the mandate may reasonably be characterized as a tax, it must still comply
with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be
laid, unless in Proportion to the Census or Enumeration herein before directed to be
taken.” Art. I, §9, cl. 4. A tax on [**463] going without health insurance is not like a
capitation or other direct tax under this Court’s precedents. It therefore need not be
apportioned so that each State pays in proportion to its population. Pp. 40-41.
KAGAN, concluded in Part IV that the Medicaid expansion violates the Constitution by
threatening States with the loss of their existing Medicaid funding if they decline to
comply with the expansion. Pp. 45-58.
(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the
. . . general Welfare of the United States.” Art. I, § 8, cl. 1. Congress may use this power
to establish cooperative state-federal Spending Clause programs. The legitimacy of
Spending Clause legislation, however, depends on whether a State voluntarily and
knowingly accepts the terms of such programs. Pennhurst State School and Hospital
v.Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 67 L. Ed. 2d 694. “[T]he Constitution
simply does not give Congress the authority to require the States to regulate.” New York
v. United States, 505 U.S. 144, 178, 112 S. Ct. 2408, 120 L. Ed. 2d 120. When Congress
threatens to terminate other grants as a means of pressuring the States to accept a
Spending Clause program, the legislation runs counter to this Nation’s system of
federalism. Cf. South Dakota v. Dole, 483 U.S. 203, 211, 107 S. Ct. 2793, 97 L. Ed. 2d
171. [***10] Pp. 45-51.
(b) Section 1396c gives the Secretary of Health and Human Services the authority to
penalize States that choose not to participate in the Medicaid expansion by taking away
their existing Medicaid funding. 42 U.S.C.
132 S. Ct. 2566, *2573; 183 L. Ed. 2d 450, **462; 2012 U.S. LEXIS 4876, ***6; 80
U.S.L.W. 4579
Page 3
§1396c. The threatened loss of over 10 percent of a State’s overall budget is economic
dragooning …
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