Monthly Archives: March 2010

Utah makes the news…not always a good thing.

On occasion, my home state Utah manages to find its way into the news, but often only for the goofy or laughable reasons.  (There is the exception of the 2002 Winter Olympics, which went off without too much of a hitch.)

The legislative session provides a great place for some of the laughable.  As one of the more conservative states in the country, message bills provide plenty of fodder for the more liberal talking heads in the country, as well as for more moderate.  The most recent foray into this world of message bills that flirt with, if not cross, the line from legal to laughable is the bill signed by Gov. Herbert authorizes the use of eminent domain to try to force a showdown over public lands.

Like many states in the west, a large portion of Utah land is owned by the federal government.  Utah has one of the lowest levels of funding for education per student, in large part due to large families and because most of the funding comes from school trust lands.  Utah has decided to invoke the Takings Clause to force the federal government to sell the land and give Utah 5% of the proceeds.  Trying to invoke the Takings Clause of the Constitution against the federal government is, as Above the Law put it, like a dog tell its owner to get off the couch:

A state is invoking the Takings Clause against the federal government? This reminds me of the time I came home and my dog told me to get off the couch. Sure, I was surprised that my dog was (a) talking and (b) ordering me off my own property. And so I resolved, right then and there, to never drop acid again.

Some of the back story on this is that much of the land held by the fed in this case was tied up by President Clinton by executive order, a move that went over oh so well with Utah conservatives gripping their guns and religion.

I’ll just direct you there for the rest of the laugh.  Other stories on the bill can be found here:

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School Uniforms: Constitutional Infringement of Free Speech?

Well, are they? A friend (not a lawyer) corrected me when I mentioned that kids don’t have full First Amendment rights of free speech saying that “but their parents do and forcing kids to wear school uniforms without their parents’ consent may be unconstitutional.”

So….now I’ve got to look it up. What do you think?

The legal challenges to the health care bill

Apparently, there is some question about the legality of the bill recently (as in yesterday) signed into law by President Obama.  I’ve already discussed the questionable procedures used to pass it in the House.  But what about

Obama signs the health care reform bill while Congress people look on... and what's with Pelosi? How does she manage to always look so goofy?

the bill itself?  Is it legal?  Is it constitutional?

Let me just say at the outset that rational minds can disagree, and this topic is no exception.  I hope merely to provide some short review of the differing sides of this discussion, and hopefully you can come to your own conclusions without falling back on your pre-conceived partisan inclinations (yes, we all have biases, even if we don’t recognize them).

On the one side of the discussion, there are those that believe that the health care reform bill is unconstitutional.  Their arguments boil down into several points and discussed in two lawsuits contesting the bill, one by the state of Virginia and the other by  Florida and, in the words of Josh Blackmun, “a bunch of other states.”

Virginia and the Commerce Clause complaint

The Virginia case attacks the health care bill on “commerce clause” grounds.   The commerce clause, found in Art. 1, Sec. 8, Clause 3 of the Constitution, gives Congress the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]”  Historically, the commerce clause has been one of the most empowering in the Constitution and the means through which Congress passes a large portion of legislation every year because it allows Congress to regulate anything that passes through the stream of commerce.  However, as Randy Barnett, professor of constitutional law at Georgetown University, very aptly points out, insurance contracts have not before now been considered as affecting interstate commerce:

[…] the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink.

If we have to buy insurance for our car, why not for our health?

Josh Blackman points this out, too, citing directly from the Virginia complaint:

Paragraph 17:  ”The status of being a citizen of Virginia is not a channel of interstate commerce; nor a person or thing in interstate commerce; nor is it an activity arising out of or connected with a commercial transaction. Instead, the status arises from an absence of commerce, not from some sort of economic endeavor, and it is not even a non-economic activity affecting interstate commerce. It is entirely passive.”

Paragraph 18:  The Commerce Clause authority has never been held to “require citizens to buy goods or services. To depart from that history to permit the national government to require the purchase of goods or services would deprive the Commerce Clause of any effective limits contrary to Lopez and Morrison and would create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers.”

Paragraph 19: “Requiring citizen-to-citizen subsidy or redistribution is contrary to the foundational assumptions of the constitutional compact [under the Necessary and Proper Clause].”

In closing, the Virginia complaint dismisses the bill with rhetorical flair:

“because the individual mandate exceeds the enumerated powers conferred upon Congress. Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid.”

Florida and the “bunch of other states” everything-but-the-kitchen-sink complaint

Florida is joined in its complaint by South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota.  Other than a short mention of the commerce clause

Both the Florida and the Virginia legal challenges to the health care reform act are rooted in states' belief that the federal government is overreaching its constitutional authority.

, the complaint challenges the bill through the 10th Amendment, the Capitation Clause, the Guarantee Clause , general principles of federalism (commandeering) and state sovereignty.   In pertinent part, and again a nod to Blackman, some of the highlight from the complaint are these:

2. The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.

3. In addition, the tax penalty required under the Act, which must be paid by uninsured citizens and residents, constitutes an unlawful capitation or direct tax, in violation of Article I, sections 2 and 9 of the Constitution of the United States.

4. The Act also represents an unprecedented encroachment on the sovereignty of the states.

5. Further, the Act converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of the Plaintiffs and their sister states is removed, in derogation of the core constitutional principle of federalism upon which this Nation was founded. In so doing, the Act exceeds the powers of the United States and violates the Tenth Amendment to the Constitution.

56. The Act exceeds Congress’s powers under Article I of the Constitution of the United States, and cannot be upheld under the Commerce Clause, Const. art. I, §8; the Taxing and Spending Clause, id.; or any other provision of the Constitution.

57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States.

58. The Act violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.

Are the criticisms legitimate?

Just because a lot of conservative states have filed suit does not necessarily mean that the criticisms are legitimate.  Jack Balkin, a Yale constitutional professor, dismissed the legal challenges presented to the health care bill.  Since the 1930s, Congress has had almost unfettered authority to regulate the economy, and as long as the individual mandate is framed as a tax, Congress may be well within its rights to require it:

“The attack on this bill,” said Jack M. Balkin,“is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”

Replying to the proposition that people have a right not to buy health insurance, Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law speaking to the New York Times:

[S]aid the right not to buy health care was “rhetorically appealing” because of its paean to personal freedom. But “individual freedom not to purchase health care, I think, has no basis in Constitutional law.

In fact, Professor Chemerinsky added, “there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”

Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.

“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky said, “I think this will be upheld.”

Vote Counting on the Supreme Court

Ironically, it is this very point–that it doesn’t really matter how close the legislation adheres to the Constitution that will allow it to survive legal challenges but whether it can be upheld on judicial precedent of the last eighty years–that Bartlett notes will be the ultimate determinate of its legality.  When it comes to the legal challenge, Bartlett says

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?

What the Constitution says, what the Supreme Court has said, and what will five justices accept are not necessarily the same thing, and it is this last factor that draws the ire of the political left.  Regarding the lawsuits filed by Virginia and Florida (et al.), the Economist View had this to say:

From what I’ve read, there are two points to make. First, it would be crazy to rule that the individual mandate (or any other component of the legislation) is unconstitutional. Second, we have four crazy justices on the Supreme Court.

Start counting the votes now.  It may come down to just one swing justice, and that’s a vote that neither side can presume.

HCR and the Constitution: procedural problems?

I get a lot of questions from my friends about the HCR bill that just passed.  What happened? might be a good what to sum up most of the questions.  They are confused about how it passed (not to mention about why the Congress would pass something that seems so unpopular…but that’s another issue altogether), whether it was constitutional, and what happens next.  To be honest, even though I’ve managed to survive law school and  the requisite two semesters of conlaw, I still don’t know that an explanation of the constitutionality of the health care reform bill is within my immediate grasp.

So naturally, I turn to smarter minds.  [enter The Volokh Conspiracy]

There’s an interesting debate going on there, and on other sites across the web, about the constitutionality of the way the bill was passed.  Two of the main proponants of the opposing sides are Yale’s Jack Balkin (for the HCR) and Standford’s Mike McConnell (formerly on the 10th Circuit bench).  The debate in about the process:

Yale’s Jack Balkin is now convinced that Democrats in the U.S. House of Representatives have found a constitutional way to combine passage of the Senate health care reform bill with revisions to be passed as part of a reconciliation process.  In a letter to House Rules Committee Chair Louise Slaughter (reproduced here) Balkin writes:

Under Article I, section 7 of the Constitution, a bill does not become a law until it is passed by both houses of Congress, presented to the President for his signature, and the President then signs the bill or otherwise allows it to become law without his signature. These are sometimes collectively referred to as the requirements of bicameralism and presentment.

In order to satisfy the requirements of bicameralism and presentment, the two houses must pass bills with identical language. Clinton v. City of New York, 524 U.S. 417 (1998).

As I understand it, the rule to be employed by the House for the consideration of the reconciliation measure will state that, upon passage of the reconciliation measure by the House, the House concurs in the amendments to H.R. 3590 passed by the Senate. This language means that the House agrees to pass the same language as the amended bill passed by the Senate.

If this is the case, then the language of this self-executing rule complies with the requirements of Article I, Section 7. The Constitution does not require that the House take a separate vote on the Senate amendments to H.R. 3590. Under Article I, Section 5, Clause 2, the Constitution gives the House of Representatives, like the Senate, the power to “determine the rules of its proceedings.” A rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House’s powers under Article I, Section 5, Clause 2.

Writing in the Wall Street JournalStanford’s Michael McConnell responds:

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in “the same form” as either bill separately.

Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.

Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.

McConnell also addresses arguments that judicial review of the “Slaughter Solution” is precluded by Field v. Clark.  According to McConnell, “It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution.”  While I don’t think the U.S. Court of Appeals for the D.C. Circuit is likely to accept this distinction (as I noted here), I think that it is a very serious argument, and one the Supreme Court might well accept.  (And, I should note, were the Supreme Court to accept this argument, I think it is unlikely that the Court would divide along traditional ideological lines, as this sort of question tends not to divide the Court in this way; see e.g. Clinton v. New York).

I think the most telling bit of commentary on this debate comes in the comments from one Brett Bellmore: McConnell is right on the Constitution, Balkin is right on how the courts are likely to rule. And it’s a shameful thing that you have to make that distinction.

Justice comes for the spammer in CA

It turns out that there is justice.  This just in from California via Slashdot: spammers who send out false and deceptive spam will pay liquidated damages to the extent of $1,000 per email.

“In the first case brought by a spam recipient to actually go to trial in California, the Superior Court of California held that people who receive false and deceptive spam emails are entitled to liquidated damages of $1,000 per email under California Business & Professions Code Section 17529.5. In the California Superior Court ruling (PDF), Judge Marie S. Weiner made many references to the fact that Defendants used anonymous domain name registration and used unregistered business names in her ruling. This is different from the Gordon case, where one only had to perform a simple whois lookup to identify the sender; here, Defendants used ‘from’ lines of ‘Paid Survey’ and ‘Your Promotion’ with anonymously registered domain names. Judge Weiner’s decision makes it clear that the California law is not preempted by the I CAN-SPAM Act. This has been determined in a few prior cases, including my own. (See http://www.barbieslapp.com/spam for some of those cases.)”

Naturally, the guy who filed the law suit is sanguine about winning. The question in my mind is: how do you prove that you were sent a false and deceptive email?  Is it worth the time to get the $1,000 in damages?