Monthly Archives: June 2012
My Analysis of Today’s Supreme Court Ruling on the Affordable Health Care for America Act
The current Justices of the Supreme Court of the United States
I usually do not blog on political issues, or issues as related to law outside the realm of digital media law or cyber law. I had actually planned to write an interesting article about e-discovery today, but I have been requested by friends to address today’s ruling on the Affordable Health Care for America Act, as decided in today’s decision of National Federation of Independent Businesses v. Sebelius, No. 11-292 (S.C.O.T.U.S., June 28, 2012).
All politics aside, my first feelings foremost are that courts should rule on issues as a matter of law, not politics. As Robert Bolt, under the character of Thomas More, wrote in the play A Man for All Seasons, “Men must rule themselves by their wits, this court must rule according to the law” (Act 2, Scene 9). The most important part in my opinion is not that the law was upheld under the tax and spending provisions under the constitutions, it is that the Court has limited the use of the Commerce Clause, stating specifically that it cannot be used to force individuals to make purchases in the stream of commerce. More importantly, the Supreme Court has limited the power of the federal government to bully the states into enacting state laws that bend to their desires.
From a Constitutional Law perspective, the Commerce Clause is the bane of every law student’s existence. It has been used to expand the powers of government, for good and for evil. In Civil Rights law it was used to end laws discriminating against African Americans, who wanted to eat at lunch counters. During the Great Depression, it was (and is still being) used to regulate crop production, even when the crops are for personal use. It is currently the reason why Amazon Taxes are probably unconstitutional. In general the Commerce Clause has been used to increase federal government power, and decrease the ability of the states to exercise powers left to them in the Constitution. By stating that the Commerce Clause cannot be used to force individuals to purchase health insurance, this is the first time, at least that I have seen, that the Supreme Court has limited the power of the federal government under the Commerce Clause.
Likewise with the Necessary and Proper clause, likewise, has been a source of almost limitless power of the Federal Government. This too has been limited in stating that the Federal Government cannot use this power as a means to force individuals to purchase health insurance.
The only measure that survives is the Tax and Spending clause, which the Constitution states explicitly, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (U.S. Const. art. 1, § 8, cl. 1.). By doing so, the provision which forces the individual to pay a fine if they do not purchase health insurance is now qualified as a tax. As a matter of practicality, when an individual refuses to purchase insurance, that act triggers an extra payment to the IRS on their tax return. So the court concluded under the tax and spending clause, such a payment would qualify as a tax.
The other significant portion of the Act, dealt with state mandated medicare payments. This, in my opinion, is a really big one. As we know from history, the federal government from time to time will threaten to withhold funding to the states to finance federally mandated programs if they do not comply with some aspect of federal law. The most common example was when the federal government threatened to withhold federal highway funds to the states, if the states did not raise their drinking age to 21. In this case, the Federal government threatened to withhold all medicaid funding if they did not raise their eligibility to everyone whose income was within 133% of the federal poverty guidelines. The court said emphatically, that the federal government could not do that, describing the matter not as encouragement but as a “gun to the head” of the states. This again, limits the ability of the federal government to coerce the states into acting at their behest.
Lets look at the tally.
Commerce clause can enforce individual mandate No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Necessary and Proper clause can enforce individual mandate: No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Tax and Spending clause can enforce individual mandate: No: Scalia, Alito, Thomas, Kennedy
Yes: Roberts Ginsburg, Kagan, Sotomayor, Breyer
Federal Government can coerce states to change Medicaid laws: No: Roberts, Scalia, Alito, Thomas, Kennedy, Kagan, Breyer
Yes: Ginsburg, Sotomayor
So, in other words, this court limited the power of the federal government in three key ways, while still receiving the adulation of the President who’s mission it has been to increase the power of the federal government. It may seem genius, but I don’t think that is how the Chief Justice intended for this to happen. I think he was aiming for a 6-3 vote to avoid a split 5-4 opinion, and it backfired. When the Supreme Court goes into conference after oral arguments, the Chief Justice is always the first to speak and the first to vote. I think he was trying to do so in a way to entice Justice Kennedy to side with him and make it an all around 6-3 decision at least on the tax and spend clause, to make the court appear less partisan. It didn’t work because Justice Kennedy decided to support the more conservative block.
The Chief Justice is an intelligent man, who I agree with philosophically on the nature of the law. It is not up to the Courts to determine whether or not a law is wise, that is the purview of the congress and the people. It is merely the court’s responsibility to determine whether the laws are constitutional. In this, I think he is the least activist, and least partisan member of the court. He approaches the law, not with a result in mind, but with a strong mind and strong legal reasoning. He has here, as he has in the past, left it to congress to determine the laws by which we the people will be governed. I think we have a better means to predict how the court will rule in future occasions.
There was really a law against lying on the Internet?
This morning, I came across an article on Fox News about the Rhode Island legislature repealing a law that made it a crime to lie on the internet. The law, which was passed in the prodigy dominated internet era back in 1989, made lying on the internet punishable by up to a $500 fine and 1 year in prison. Criminal lawyers know this type of punishment as the highest punishment you can get with a crime that is just a misdemeanor.
In 1989 this might have made a little sense since the only people using the internet for anything other than looking at an encyclopedia and maybe some shopping, were government officials and the military. It may have at one time been necessary to enforce honesty in internet communications. However, I don’t think it was ever really enforced because there is no way the law would pass first amendment scrutiny in the courts. Still, this is a law that I am sure everyone in America broken. Here is a list of things that would qualify as a crime under this law.
- Posting an older picture of yourself on facebook, claiming it was new.
- Shedding 10lbs off your weight in a dating profile
- Claiming to have worked with Mario van Peebles on a TV show when you were just an extra (actually that would probably be O.K.)
- Photoshopping yourself in your profile picture
- Every single World of Warcraft avatar
- Being a politician who’s political speech just happened to have been posted online
- Posting a picture of your cat talking in broken English (Cat’s don’t talk… really they don’t)
- Saying you’re in corporate management, when you work the night shift at 7-11
You see how this can get a little hairy? So what “crimes” do you think people routinely commit on the internet?
Cyber Law goes Mainstream?
I operate a small boutique firm specializing in cyber law (amongst other things).
Being one of the first firms to specialize in this particular area, I was somewhat disappointed to see that the big firms have finally caught on to what we are trying to do here. I only hope I don’t end up being muscled out. Better yet, I hope to ride the wave into converting my little boutique firm into one of those large firms that can bill $500 per hour. Then again, I do want to maintain my soul.
From the Washington Post:
“There were literally two lawyers in the whole country who did that,” said Ingis, co-chairman of the privacy and data security practice at Venable in Washington. “Flash forward to today, every firm in the country has or wants to have a privacy practice. And it’s really a data practice. You have whole bunch of new businesses where a lot of the growth is about figuring out how to use data better, how to store data, where to store it, and who can access it … What had been a boutique practice with a narrow focus [has become] one that is very mainstream.”…
“The level of attention and sophistication companies are giving privacy and data security has escalated dramatically over the years,” said Kurt Wimmer, U.S. chairman of Covington’s global privacy and data security group. “It’s a response to the increasing attention regulators, plaintiffs lawyers, Congress and everyone else is giving privacy these days.”
I would suggest to anyone out there with internet law issues, stick with the smaller firms. Your issues will be taken seriously, and you will receive more attention. You won’t become just another number on the Bate’s stamp. I can do anything that the larger firms can do, more efficiently and for less cost.
You Gonna Eat That?
For our readers from across the pond, you may already be familiar with this story. Recently a nine-year-old Scottish girl was forced by her school to stop posting less-than-flattering pictures of the school’s cafeteria food on her blog. You can read the whole story here and here.
Martha Payne, hard at work!
Now the school has since reversed its position on the matter but nine-year-old Martha Payne is no longer snapping pictures or posting on her blog. She is able to as a matter of policy according to the school, but that does not change the fact that she has opted not to continue for the time being. One can only assume she reached this decision because of all the hassle the school put her through. If you really think about it, all she was doing was taking pictures of what a bunch of kids were being served at lunch (most of the meals looked better than the “food” I was served when I was in grade school). If simple transparency such as this is problematic for a school, then that school has much larger fish to fry. But what is really scary is how quickly and soundly an institution which is supposed to be all about education and sharing information, can put the kibosh on free speech. Judging by the time stamps on the posts, Martha was not even making these posts while at school but the school still felt that it had the authority to quell the speech anyway. This brings the chilling factor to a new level; a school limiting the freedom of speech of its students while the students are outside of school grounds.
Now this happened in the UK and they have a different version of freedom of speech in Great Britain but this kind of thing could easily make its way over here. Currently, freedom of speech both on and off school grounds in the US is being limited by schools under the guise of anti-bullying (story via Forbes.com). This subject garnered even more notoriety when a Rutgers student committed suicide after an incident of alleged bullying involving a web-cam (The Story of Tyler Clementi). Legislation that has allowed for the curtailing of expression by schools has come under some fire lately but seems to have been embraced by many of the statehouses across the United States in one form or another (all but Montana actually). Federal legislation was even introduced but it quickly stalled.
These two concepts may seem rather disconnected but they really aren’t, both stories center around the issue of freedom of expression versus freedom from harassment. On the one hand, we have an interest in protecting students and faculty from harassment but we also have a duty to uphold the First Amendment rights of those same folks. Schools are a place where students are supposed to learn to be civic-minded members of society but they are also a place where they need to be safe as well. This leads to a precarious balancing act which these two stories exemplify quite nicely (I think). In the blogger case, we have a student who is simply posting pictures of cafeteria food, she is doing nothing to put anyone in danger, she is not harassing anyone (unless the headmaster getting phone calls from outraged parents for serving their lil angels crappy food qualifies). On the other side of the fence (barely), we have a student actively bullying another with potentially disastrous consequences (the only consequence for Martha’s blog? Better food @ school). So this begs the question “where do we draw the line?” We sure don’t want to go as far as the Scottish school and actively cut off creative talent but we also don’t want kids tossing themselves off bridges because of some online slur against them. I don’t pretend to have an answer to this question but it is one we need to constantly ask ourselves and discuss or otherwise we will be at the point where we punish little Marthas before we know what hit us. So let’s heed a tale from across the pond and watch carefully where we step.
The best understanding of toeing this line that I have seen came out of the First Amendment Center earlier this year and can be found here.
Rashad Richey drops lawsuit against Andre Walker
I received a message from Andre Walker today that Rashad Richey has dropped the lawsuit against him. Congratulations for Andre and the good guys for winning this one!
Last month I wrote a blog post about Georgia Democratic Party Official Rashad Richey suing blogger Andre Walker for defamation. Andre Walker is a former democratic official, turned conservative blogger who writes for Georgia Unfiltered. I wrote that essentially Richey had no case against Walker and that the entire purpose of the case was to intimidate Richey.
The advice I give to anyone in this situation is don’t panic, and Call Me. Most of the time it is a nothing case, and that the best thing you can do is not be intimidated by meaningless threats. I applaud Andre for not backing down and defending his first amendment rights.
James Skyles
