Tuesday, May 31, 2011

New wrinkles in the ACA litigation – Part II

Okay, well, now y’all know from reading Part I that under the Constitution’s Art. III requirement that plaintiffs in lawsuits have some “particularized” (and ya know what that means, from reading Part I) injury or be in imminent danger of suffering one, and that the imminent danger can, theoretically, be hardship due to the anticipated violation of the plaintiffs’ rights. So you’ll be able to sail right through the federal-court-jurisdiction questions in the Civil Procedure section of the multi-state part of the bar exam.

You’ll also be able to understand what happened last Friday in the ACA case scheduled for oral argument on Wednesday in the Sixth Circuit federal appellate court.

The case is Thomas More Law Center, et al. v. Obama. Thomas More Law Center is a rightwing organization whose purpose is to challenge the constitutionality of laws or government policies or government actions against a particular individual that the far right finds offensive. Almost always, the underlying cause is a culture-wars issue, although sometimes the immediate issue being litigated is a more general procedural or constitutional-rights issue.

For example, a few weeks ago, a friend asked me whether I would be willing to advise a Thomas More lawyer on a procedural issue concerning access to federal court for a couple who are my friend’s friends and who are entwined in a legal morass stemming from their protests at an abortion clinic, for which they were prosecuted. My friend knows I know loads about the procedural issue, known as the Rooker-Feldmandoctrine, an absurd Supreme Court-created bar to access to federal court in order to challenge the constitutionality of state-court actions. I was happy to oblige, partly because this couple’s due process rights, were, in my opinion, violated, and partly because that doctrine itself violates the Fourteenth Amendment. On March 7, in an opinion called Skinner v. Switzer, the Supreme Court finally killed the doctrine, or tried to; because Skinner does not expressly say, “We overrule Dist. of Columbia Ct. of App. v. Feldman,” the 1983 opinion that created the doctrine on the basis of the Court’s interpretation of a statute that was amended in 1986 to remove the part of that statute that the Court was interpreting, some of the lower federal courts are ignoring Skinner. Just as I’d predicted on Mar. 7 when I read the opinion.

But I digress.

The et al. are four individuals who are members of the Thomas More organization. (It’s apparently an organization that has a membership, like the NAACP, the ACLU and the NRA, rather than just a law firm.) The organization’s standing to sue is derivative of its members’ standing—the ones that do have standing, that is, and only the members who actually will be forced by the ACA to buy health insurance or pay the penalty even arguably have standing. Turns out that the only one of the individual plaintiffs who, at least from the plaintiffs’ earlier filings, claimed that injury and provided specifics about it—that she did not have health insurance and that the $700 per month she said she would have to pay under the ACA would cause her significant financial hardship—actually bought health insurance through her employer last October, after the lower-court decision, for less than $400. The plaintiffs revealed this in their response to the court’s briefing request, which they filed last Wednesday.

Two of the other four individuals are not even claiming a lack of health insurance and therefore any injury from the mandate. The other one—his name is Steven Hyder—has claimed that the mandate “negatively impacts me now because I will have to reorganize my affairs and essentially change the way I live to meet the government’s demands,” but he provided no specifics.

Voila! On Friday, the government filed a motion asking the court to dismiss the appeal because, the government said, no plaintiff has standing to litigate this because no plaintiff has shown that he or she would suffer an injury from the mandate. Hyder's claim, the government says, is a mere conclusory statement; without facts supporting the conclusion, it’s not enough to establish standing. And the others clearly haven’t established standing. And, because the trial-level judge, who is based in the Eastern District of Michigan, ruled that the ACA is constitutional, the government wants the appellate court not to “vacate” (hold null and void) that judge’s ruling, an action that normally the appellate court would do in such a circumstance.

The government’s request that the appellate court dismiss the appeal yet leave the trial judge’s ruling intact strikes me as pointless. Yes, the plaintiff who voluntarily bought health insurance in October did have standing when the lawsuit was filed and when the trial judge issued his ruling last summer. But trial-court rulings have no effect except in the case in which the ruling was issued. They don’t even set the law in that court’s own judicial district. That ruling, if it remains in effect although the appeal is dismissed, probably wouldn’t even effect the rights of these plaintiffs—most significantly, of course, the Thomas More Law Center—because they were denied the right to an appeal.

At the oral argument on Wednesday, or before that in a filed response to the government’s motion, the Thomas More lawyers will get specific about the basis for Hyder’s claim of financial hardship and about whether the other two individuals now have health insurance. If they all have health insurance, then, the mandate won’t cause them financial hardship or, irrespectively of finances, force them to do something they don’t want to do. They don’t have standing.

But, assuredly, some plaintiff in some other ACA case does. Or will.

New wrinkles in the ACA litigation – Part I

On May 23, the three-judge federal Fourth Circuit appellate panel that two weeks ago heard oral argument in the two cases in Virginia challenging the constitutionality of the ACA issued an order asking the parties to brief the question of whether a federal statute known as the Tax Anti-Injunction removes the federal courts’ “jurisdiction”—i.e., legal authority—to hear a case filed “for the purpose of restraining the assessment or collection of any tax.” The statute, subtitled “Prohibition of suits to restrain assessment or collection,” is part of the IRS Code. The relevant part of the statute reads:
Except as provided in sections 6015 (e), 6212 (a) and (c), 6213 (a), 6225 (b), 6246 (b), 6330 (e)(1), 6331 (i), 6672 (c), 6694 (c), and 7426 (a) and (b)(1),7429 (b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

The panel asked for briefing on three questions. The first one has two parts. It asks, generically, whether the statute, when applicable, divests the courts of jurisdiction to hear this type of case, and, if so, whether it does that in these cases. The two parts, each of which references a particular earlier Supreme Court holding—one in a 1962 opinion called J.L. Enochs v. Williams Packing & Navigation Co., that created an exception to the statute when the statute otherwise would apply, the other a 1974 opinion called, Bob Jones University v. Simon, saying that in that particular case, the exception created in Williams Packing doesn’t apply—appears to me to be just a clumsy way of asking whether, if the penalty assessment is a “tax,” the ACA cases come within the exception created by Williams Packing. Clearly, the statute indicates that when it is applicable, it divests the courts of jurisdiction to hear the case.

The second question asks whether “a challenged exaction”—here, the fee that must be paid through the IRS for failure to purchase health insurance—can qualify as a “tax” under the Anti-Injunction Act whether or not it qualifies as a tax for purposes of Congress’s taxing power under Article I of the Constitution, the part of the Constitution that lists most of Congress’s powers.

The third question asks whether, if the Anti-Injunction Act does apply to these lawsuits—that is, if the exaction is considered a tax for purposes of the Act—the plaintiffs (the State of Virginia, in one of the lawsuits; Liberty University and a few named individuals, in the other lawsuit) will have “the ability to challenge the exaction … in a refund suit or otherwise.” Williams Packing held that the statute would violate the Fifth Amendment’s due process clause unless an exception to the statute’s applicability is created if there otherwise will never be an avenue in which the plaintiff can challenge the constitutionality of the tax and obtain redress if the tax is unconstitutional; that’s the exception that Williams Packing creates. But the ability to sue to request a refund of the tax once the tax has been paid usually will suffice, according to Williams Packing, for due process purposes.

The two ACA cases were decided at the trial-court level by different judges. The judge in the case filed by Virginia ruled that the “mandate” part of the ACA is unconstitutional. The judge in the Liberty U. case ruled the entire ACA constitutional.

The Anti-Tax Injunction Act was never an issue in the Virginia case, because Virginia itself will not be subject to the penalty for failure to obtain health insurance. In fact, for that reason, the three-judge panel will dismiss that lawsuit, saying that Virginia has no legal “standing”—no right—to challenge the statute’s constitutionality because the state will have no concrete injury from the statute. That much was clear from the oral argument. The Constitution’s Article III, which creates the federal judicial branch, gives the federal courts the power to hear only certain identified types of “cases” or “controversies.” The Supreme Court has always interpreted the case or-controversy” language to mean that only parties that have sustained or are about to sustain a “particularized”—i.e., a concrete—injury, have “standing” to sue. You can’t sue if your injury is only hypothetical. You have to have an “injury in fact.”

But at least some of the individuals in the Liberty U. case, if not the U. itself, apparently do have standing to challenge the mandate’s penalty fee. And the Anti-Injunction Act became an issue in that case because the Justice Dept. had called the penalty fee a “tax.” Rather than relying just on the power that the Constitution gives Congress to regulate commerce, and its authority under the Constitution to enact laws “necessary and proper” to execute its commerce-regulating power, the Justice Dept. claimed that Congress also had the authority under its taxing power to enact the ACA, including the mandate provision. The Justice Dept. then invoked the Tax Anti-Injunction Act and claimed that the court lacked jurisdiction to hear the part of the case that challenges the constitutionality of the mandate and the penalty “tax.” But the trial-level judge rejected the characterization of the penalty fee as a tax, saying it’s more accurately characterized as a regulatory penalty. Holding that he had the authority to consider the constitutionality of the ACA, he ruled the law constitutional.

The Justice Dept. didn’t raise the Tax Anti-Injunction issue on appeal. But the judges now have, and what’s clear from the May 23 order is that, at least at this point, they plan to characterize the mandate penalty as a tax for purposes of that statute. That’s a curious view, since the purpose of the taxing power is to raise revenue and the purpose of the Anti-Injunction Act is to allow the revenue to be raised, unencumbered by court injunctions. The purpose of the ACA’s mandate is to require almost everyone to have health insurance, and the point of the penalty is to require everyone to comply with that mandate. Which is why the panel apparently has concluded, accurately, in my opinion, that the penalty is not a tax under Article I of the Constitution. And which is why, if that the Tax Injunction Act nonetheless applies to the penalty, the Supreme Court will reverse them. And, on this issue, it should. The penalty does raise revenue, but only incidentally, just as other government fines, including fines as criminal sentences, do. But fines aren’t taxes.

There’s also, at least in my opinion, a big question whether the Anti-Injunction Act applies even when what’s at issue is clearly a tax, if, as here, what the plaintiffs are asking for is just a declaration (called a declaratory judgment) that the statute is unconstitutional, rather than asking the court to enjoin collection of the tax. In Williams Packing and Bob Jones University, the plaintiffs were asking the court to enjoin the collection of the tax. In the ACA cases, they’re asking the court to declare the statute, or at least the mandate provision, to which the penalty fee is only an enforcement tool, unconstitutional. A purpose of the lawsuits is to restrain the assessment or collection of the fee, but they’re not asking the court to do that directly.

Meanwhile, in an ACA case scheduled for oral argument on June 1 in the Sixth Circuit appellate court, the court that hears federal appeals from Michigan, Ohio, Kentucky and Tennessee, the three-judge panel asked the parties on May 12, the day after the argument in the Virginia case, to briefly brief three questions, two of which concern whether the controversy is “ripe” for resolution—that is, whether, given that the ACA mandate doesn’t begin until 2014, the plaintiffs have alleged an injury in fact, and, if not, whether they’ve alleged “an ‘imminent injury’ creating a case or actual controversy under Article Ill and the Declaratory Judgment Act” this long before the effective date of the mandate provision. The panel also requested briefing on whether the IRS’s enforcement mechanisms impact whether there is a current or imminent injury because, the plaintiffs claim, they must plan long ahead for this extra expense.

The panel also asked a question about the substance of the case: whether these plaintiffs are claiming that the statute is unconstitutional on its face—i.e., that it is unconstitutional vis-à-vis everyone—or whether instead they’re just claiming that the statute is unconstitutional as it would be applied to them and others like them but not to everyone.

The parties filed their brief briefs on Wednesday. And from there, the plot thickens.

Part II to follow.

Friday, May 27, 2011

More on the activity/inactivity canard in the ACA litigation

Last week, one of the law blogs I read regularly mentioned a post from May 11 on a law blog read regularly by a lot of law geeks (but not by me) about the oral argument in those cases a day earlier. The blog is The Volokh Conspiracy. Its bloggers are prominent rightwing or libertarian-right law profs, most of whom once were law clerks to a conservative Supreme Court justice. This particular post was by Georgetown law prof. Randy Barnett, who is a veritable font of rightwing legal theory and suggestions for rightwing laws and legal arguments.

He also is, from what I can tell, the farthest right of that blog’s bloggers. Earlier this year, one of the big, big names on that blog, Orin Kerr, wrote that he was pretty darned certain that under the Supreme Court’s Commerce Clause and Necessary and Proper Clause rulings, the ACA was constitutional. One of the other bloggers there—probably Barnett, but I don’t recall—disputed that.

Anyway, in his May 11 post, Barnett recounted an exchange between acting Solicitor General Neal Katyal, who was arguing the appeal on behalf of the government, and panel judge Diana Gribbon Motz, a Clinton appointee. To refresh your memory from two weeks ago, all three of the panel members are Dem appointees, the other two of them appointed by Obama. Also to refresh your memory, the main challenge to the constitutionality of the ACA is that the Constitution’s Commerce Clause does not give Congress the authority to regulate inactivity. To which the government has responded that the decision to not buy health insurance and to instead rely upon the largess of the government, hospitals and ultimately those who do pay health insurance premiums to get emergency medical treatment, is activity. And that in any event, under the Supreme Court’s longtime Commerce Clause jurisprudence, that Clause coupled with the Necessary and Proper Clause gives Congress the power to regulate markets and that therefore there is no activity/inactivity distinction for Commerce Clause purposes.

The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

In his post, Barnett pointed out something that was not in the other reports I’d read about the oral arguments: that in a lengthy exchange with Katyal, Motz indicated that she buys the activity/non-activity distinction, because she believes the definition of the word “regulate” means “regulate activity.” She kept insisting that if the failure to buy health insurance is inactivity rather than activity, then, under her understanding of the definition of the word “regulate,” Congress couldn’t regulate it.

Katyal flubbed the response to this. Partly. He noted the Supreme Court’s most recent relevant Commerce Clause/Necessary and Proper Clause decision, Gonzales v. Raich, a 2005 opinion that held that the federal statute enacted under the Commerce Clause powers that criminalizes the growing and use of marijuana applies even to homegrown marijuana that is not sold even intrastate, much less in interstate commerce, and that is just for the personal use of the grower. The rationale: that even those actions impact the interstate market for marijuana. Since the Commerce Clause gives Congress the authority to regulate interstate markets, Congress can, under the Necessary and Proper Clause, regulate things that otherwise cannot be regulated under the Commerce power if those things impact the interstate market.

Motz, though, missed the point.

Growing marijuana is an activity, she pointed out, so how is Raich relevant to whether Congress can, under the Commerce Clause together with the Necessary and Proper Clause, regulate inactivity, she wanted to know? Well, um, maybe that what’s relevant isn’t the particular reason why the Commerce Clause alone isn’t enough and must be aided by the Necessary and Proper Clause, but instead that if something—whether activity only within a state’s boundary, or instead inactivity, or instead whatever—impacts a market that Congress has the power under the Commerce Clause to regulate, then Congress has the constitutional authority to regulate it as necessary and proper under the Commerce Clause.

Katyal apparently was too dumbfounded to explain this. According to a report I read, he was assigned to handle those oral arguments only a two or three days before the date of the arguments, and that might be one reason; the top person at the Solicitor General’s office normally personally only does that in the Supreme Court (and then, rarely).

A day or two after those oral arguments, Obama’s nomination of a man named Donald Verrilli to replace Elena Kagan as Solicitor General was voted out of committee. It’s scheduled for a full vote in the Senate on June 6. Here’s some of what the New York Times said about Verrilli’s background last January when Obama nominated him:
Before joining the administration (in 2009), Mr. Verrilli spent two decades as a prominent litigator with the law firm of Jenner & Block, where he was chairman of its Supreme Court practice group, while also teaching First Amendment law as an adjunct professor at Georgetown law school.

He participated in more than 100 Supreme Court cases and argued 12 of them. He has also argued about 35 times before federal appeals courts and state supreme courts.

Verrilli won’t be arguing the Sixth Circuit ACA-case appeal there on June 1. But presumably, he’ll be arguing the upcoming ACA appeals in the other federal appellate courts-including the two in the Eleventh Circuit, one of which is the most high-profile one nationally because the lower-court judge, Roger Vinson, pronounced the entire ACA unconstitutional, the other in which the lower-court judge ruled the entire statute constitutional. And he’ll eventually defend the statute’s constitutionality in the Supreme Court. Enough said. I’m pretty sure of it.

By which I mean that the case will be argued for the government as sharply and expertly as the cases will be argued for the other side by former Bush Solicitor General Paul Clement, who, now in private practice, was retained to represent the statute-challengers in the Roger Vinson case in the Eleventh Circuit. Unless, of course, Verrilli’s nomination is filibustered.

Friday, May 13, 2011

The Difference Between Defending DOMA and Defending Neo-Nazis and the ACA

A post on the Blog of LegalTimes on Wednesday titled “King & Spalding Offers New Details on Marriage Mess,” which summarizes a report that day in one of its sister ALM (American Law Media) publications, the Atlanta-based Daily Report, by staffer Meredith Hobbs, begins:
The head of King & Spalding's Washington office is accepting blame for what he calls the "misunderstanding" that led the firm last month to accept, and then drop, the U.S. House of Representatives as a client in same-sex marriage litigation.

King & Spalding is a mega-law-firm based in Atlanta that in late 2008 won the derby to hire Paul Clement, Bush’s solicitor general since 2005 who had left the Justice Dept. in June 2008, to head its Supreme Court and appellate division. The deal involved a reported $5 million signing bonus, well worth the price because petitions (known as “cert.” petitions) asking the Supreme Court to agree to hear the case, when filed on behalf of clients by former Justice Dept. solicitors general—the Office of Solicitor General is the division of the Justice Dept. that argues cases before the Supreme Court on behalf of the United States—are guaranteed to actually be read by the justices, and the Court is more likely to grant the petition to hear the case even than petitions filed by former law clerks to Supreme Court justices. Which is saying quite a bit, because former law clerks to Supreme Court justices now hold a near-monopoly on getting private clients’ cert. petitions granted.

Clement, in keeping with modern tradition for former solicitors general, is a two-fer. He clerked for Scalia for a year after clerking the year before—his first year out of law school—for a lower federal appellate judge, a de facto prerequisite to a Supreme Court clerkship. So he’s really, really valuable to clients who want their cert. petitions read by justices, and granted. And to law firms that want to be known as a “presence” at the Court.

The referenced marriage mess is that last month, after the Obama administration announced that it (i.e., the Solicitor General’s office) would not be defending the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, against lawsuits challenging the statute’s constitutionality, a group of Republican House members hired Clement to represent them in defending the statute’s constitutionality, notwithstanding that they’re not parties to these lawsuits. But Clement signed the retainer contract without first getting authorization from the firm’s five-member committee that vets potential new clients and cases. And the contract itself contained an unusual and weird clause, now infamously known in legal-pundit circles as the “gag” provision, barring employees of the firm—attorneys, staff members and, I guess, the mailroom folks and couriers—from speaking ill of the statute.

When mass mutiny, by firm employees and corporate firm clients, including longtime client Coca-Cola (virtually all of the firm’s clients are corporations), threatened, upon the public announcement of the firm’s representation, escalating in intensity after the gag provision was disclosed, the firm announced that it would attempt to withdraw from the representation. The firm said the prospective representation hadn’t been submitted through the firm’s normal channels and hadn’t been vetted, and that, had it been, the firm would have declined the case. Clement, in turn, saying he had been led to believe that the firm supported the representation, resigned from the firm, saying that he could not ethically withdraw his representation. He joined a small firm comprised mostly of former Bush administration War on Terrorism veterans.

He then issued a public statement, seconded by several legal pundits, including some, such as Slate’s Dahlia Lithwick, whom I admire and whose writings I usually agree with, argued that it sets a dangerous precedent for a law firm to succumb to public pressure to decline to represent (or, as here, to withdraw from representation of) an unpopular client or an unpopular cause.

I’ve admired Clement himself, actually. As solicitor general, he was not an automatic supporter of rightwing legal positions when the Supreme Court, as is its custom, would ask the Solicitor General’s office for its view on whether the Court should agree to hear a particular case, usually concerning interpretation of a federal statute, in a case in which the federal government is not a party. The solicitor general is not the one who makes the final decision on this; the attorney general and sometimes the president himself is, if the issue is important ideologically or for, say, law enforcement purposes. But in cases in which it seems likely that the decision was left up to Clement, he didn’t always favor the conservative position.

In one important access-to-court case, for example, Winkelman v. Parma City School District, Clement filed a brief in support of a cert. petition filed by the parents of an autistic child who tried, without retaining counsel, to sue their local school district on their son’s behalf asking for injunctive relief to force the district to comply with a particular provision of the Individuals with Disabilities Education Act that the parents said the district was ignoring. The issue was whether the parents could “represent” their son in the lawsuit or whether instead they must hire a lawyer to that, rendering the right to sue dependent on the family’s ability to pay substantial legal fees. The Court, probably persuaded partly by Clement’s brief, agreed to hear the case, and, then probably influenced by Clement’s friend of court brief after the Court agreed to hear the case, ruled for the parents and their son. The opinion has implications for similar access to court by, say, elderly adults “represented” as “next friend” by one of their adult children, and asking for injunctive relief under various laws.

And in another case involving access to court by the non-wealthy, Clement, during his King & Spalding years, argued—unsuccessfully—in favor of possible higher contingent compensation from losing governments under certain circumstances, under a federal statute that requires a losing government in a constitutional civil rights case to pay fair-value attorneys’ fees to the lawyer who represented the plaintiff. Currently, he is among the lawyers representing a group of California state prisoners before the Supreme Court in a case in which the prisoners won on their claim for injunctive relief in the lower federal courts, claiming that California’s decades-long, extreme overcrowding in their prisons caused a lack of adequate health care so severe that it resulted in numerous deaths, in violation of the Eleventh Amendment’s prohibition of cruel and unusual punishment.

And Clement’s not just a “name.” Judging from journalists’ reports on his recent high-profile oral arguments at the Court, he strikes me as brilliant analytically, and he’s wonderfully quick-witted.

So I was disappointed when a few weeks before the DOMA controversy broke, it was announced that he would be representing the challengers to the Affordable Care Act’s constitutionality on appeal in the case in which a federal trial-court judge in Florida pronounced the entire statute unconstitutional earlier this year. It’s not that the Supreme Court justices will actually cast their vote based on any argument that has not already been made and thoroughly dissected. But if anyone can make a Supreme Court majority vote to strike down this law as unconstitutional seem like anything but Bush v. Gore redux, it is Clement.

But my disappointment about his representation of the ACA challengers is just a personal one. After all, in the ACA case, he’s playing a standard role as counsel, representing clients who claim that Congress exceeded its constitutional authority and that the result violates their individual rights.

In fact, the classic examples used to skewer King & Spalding’s action in the marriage mess all are of cases in which the lawyer is attempting to help an unpopular individual or group vindicate a constitutional right—the right of an accused mass murderer to a fair trial; the First Amendment right of neo-Nazis to march through Skokie, Illinois, then home to a substantial number of Holocaust survivors; recently, the claimed First Amendment right of the members of that absurd Kansas-based church to protest gay rights by parading at the funerals of soldiers killed in action in Iraq or Afghanistan, holding signs saying that the death was god’s retribution. (E.g., “Thank God for dead soldiers.”)

But every time I read a new contribution to the body of literature on the marriage mess, I wonder momentarily whether Clement’s decision to represent the group of House members, and the law firm’s decision to remove itself from that representation, really are the equivalent of, say, the ACLU lawyers who represented the neo-Nazis in the Skokie-march case and the people who thought the ACLU should not have represented them.

The neo-Nazis’ own cause, the message they wanted to spread, was abhorrent, but the cause the lawyers were championing was free speech. Clement, in his public statement, said his own opinion about the propriety of the DOMA as statutory policy is irrelevant (and sort of hinted that he personally doesn’t favor that legislation). And he’s right, of course; all that’s at issue is whether the statute is constitutional.

But I think he’s wrong that there’s no distinction between a lawyer’s representation of a party whose rights are at issue and a non-government lawyer’s representation of a group of members of Congress in order to defend the constitutionality of a law whose intended effect is to constrain the rights of others. What’s different is, first, that legal representation of members of Congress who are claiming that a statute is constitutional is more like a legislative or lobbying act than legal representation of a client. That’s true even when the purpose of the statute at issue isn’t to limit others’ rights. And, second, when, as here, the sole purpose of the statute is to limit others’ rights, it’s really not equivalent to representation of a party who’s own rights are at issue and whose case might, if that party is successful in the litigation, expand the rights of others.

I don’t suggest that there is something wrong with Clement’s decision to accept the case. What I do suggest is that the decision was more freighted with substance than the quick analogies suggest, and that King & Spalding was not wrong to view it that way.


Cross-posted at Angry Bear.

Wednesday, May 11, 2011

Florida State University and Koch Brothers … significant or not

A post by Dan Crawford at Angry Bear today titled "Florida State University and Koch Brothers … significant or not" reads:
Via Alternet and the St. Petersberg Times:
A foundation bankrolled by Libertarian businessman Charles G. Koch has pledged $1.5 million for positions in Florida State University's economics department. In return, his representatives get to screen and sign off on any hires for a new program promoting "political economy and free enterprise."

The agreement is here.

Since readers include university professors, what is the deal? What is usual or setting a new bar for funding in a public institution?

I’m not a university professor, but here’s the comment I posted:
The John M. Olin Foundation did something like this for decades with sponsorships of “Law and Economics” chairs at law schools, but, to my knowledge, these were all at private universities and, also to my knowledge, the foundation had no formal say in who was hired for these positions. The foundation apparently disbanded in 2005. The Wikipedia article about the foundation is here.

It’s one thing for a private university such as Stanford to house an ideological think tank such as the Hoover Institute, which is not part of one of the university’s academic departments. It’s something else entirely, and something really pernicious, I think, for a university—especially a state university—to delegate to a party unaffiliated with the university the authority to approve hires for one of the university’s academic departments in exchange for funding the professorships.

This is a VERY big deal, in my opinion. But then, a hallmark of this era in America is the abandonment of even the pretense of ethical standards of conduct by this country’s traditional pillars of those standards. At least this abandonment is public knowledge from the outset.

Tuesday, May 10, 2011

Much Ado About Not Much

The big legal news today was about the first appellate-court oral argument, this afternoon, on the constitutionality of the Affordable Care Act. The argument—arguments, actually; two separate cases were argued separately—were to a three-judge panel of the Court of Appeals for the Fourth Circuit, the regional federal appeals court for several mid-Atlantic and southern states, including Virginia.

In one of the two cases argued today, Virginia’s Tea Party attorney general, Ken Cuccinelli, had sued on behalf of the state, challenging the constitutionality of the ACA in total and, jointly and severally, the individual-mandate provision providing for a civil fine for failure to obtain health insurance. (OK, the use of the phrase “jointly and severally” is an inside joke among lawyer types; joint and several liability is a personal-injury-law term that means that each defendant found guilty of participating in causing the injury is liable individually for the whole amount of the monetary award if the other defendants can’t pay their fair share.) The lower-court judge held that individual-mandate provision, but not the rest of the statute, unconstitutional, so the state appealed. In the other case argued today, Liberty University and a few individuals challenged the law as unconstitutional on several grounds, including that, according to the university, the law would allow for federal funding of abortions.

In the State of Virginia case, a threshold issue is whether the state has legal “standing” to challenge the constitutionality of the statute, ostensibly on behalf of its residents, since the statute doesn’t affect the rights of the state itself. In the Liberty U. case, the federal-funding-of-abortions grounds for constitutional challenge is a non-starter, but at least the U. has standing to sue, since it’s an employer and parts of the ACA do affect employers, and the individuals who are suing along with the U. have standing because they’re, well, individuals and therefore subject to the individual-mandate provision.

Anyway … all three panel members, selected randomly from among the members of that court, are Dem appointees, one a Clinton appointee, the other two Obama appointees. The reports about the arguments can be summed up as: the panel will find that Virginia has not standing to sue to challenge the constitutionality of the law, and that the entire law, including the individual-mandate provision, is constitutional as “necessary and proper” (a term in the Constitution) legislation under Congress’s power to regulate commerce, a power specified in the Constitution.

One of the Obama appointees, Andre Davis, said that under the Commerce clause, Congress has broad power to regulate national markets—something that the Court has held unremittingly since the 1930s—including the health insurance market. The other two judges, Clinton appointee Diana Gribbon Motz and Obama appointee James A. Wynn, Jr., pointed out that regulating commerce includes regulating the effects of people’s decisions, individually or collectively, on commerce—on markets—and so, for Commerce clause purposes, if not independently, then at least via the necessary-and-proper clause, there is no distinction between the power to regulate “activity” and the power to regulate “inactivity.” This undercuts the crux of the challengers’ claim, which is that there is a constitutionally significant distinction between regulation of “activity” and regulation of “inactivity.” The judges kept pressing the Liberty U. lawyer to delineate a line between activity and inactivity, and to state whether a decision not to do something amounts to an action.

Apparently, he failed the activity test, at least as far as this panel is concerned.

Within the next few weeks, there will be three other appellate arguments, in other regional appeals courts, on the constitutionality of the ACA. And all of these, and the opinions these panels will write, are sideshows.

Normally, the persuasive strength of an appellate opinion in a case that clearly will be decided ultimately by the Supreme Court could matter, by persuading a justice or two or, in a high-profile case, by persuading the public and therefore, indirectly, a justice of two. But these cases—this issue—has the feel of Bush v. Gore, at least in that each of the justices almost certainly already knows how he or she will vote. I’ve said here earlier, and I’ll repeat it, that I think the swing vote in this case is Scalia, not Kennedy, and that because Scalia has boxed himself in, in earlier, relatively recent opinions, on the basic commerce-clause/necessary-and-proper clause questions at issue in the ACA litigation, he will vote to uphold the statute as constitutional.

I’ve also said, though, that I’m probably wrong.


Crossposted at Angry Bear.

Monday, May 9, 2011

Corporate Free Rein—and Free Reign

In Washington, the new Republican majority’s very first bill of the year, H.R. 1, eliminated both financing for Planned Parenthood and financing for the groundbreaking database of public safety complaints that the Consumer Product Safety Commission was about to put online. The database, Representative Mike Pompeo of Kansas warned, “will drive jobs overseas.”
—Gail Collins, New York Times, May 5

I keep up pretty regularly with political news. My opening pages on the internet browsers I use—Firefox, Google Chrome, Safari and Opera—feature aggregates of news stories from the AP, New York Times, NPR, CNN and the Wall Street Journal.

Yet I didn’t know until I read that paragraph in Collins’s column last week that the House had voted to eliminate funding for the Consumer Product Safety Commission’s new database of public safety complaints. Or that a Republican congressman had said the database—which publishes public safety complaints about products, irrespective of where in the world the product is made—will drive jobs overseas.

I did know that they voted to eliminate funding for Planned Parenthood, and that newly elected Republican-majority state legislatures in states, such as Wisconsin, with newly elected far-right governors, are eliminating state funding for Planned Parenthood. Which is not surprising, since anything concerning a hot-button culture-wars issue gets loads of press. And this issue is especially noteworthy because Planned Parenthood provides free gynecological exams and care unrelated to abortion and contraceptives.

But also especially newsworthy is the aggressive Republican federal and state legislative and judicial drive to remove or prevent any governmental protections against omnipotent corporate free rein—regulations and statutes, and the avenues of enforcement and accountability—and the contrasting Democratic legislative and regulatory efforts to mitigate that corporate free rein. Yet, best as I can tell, there has been no concerted effort—none—among Democrats, and certainly none from our supposed standard bearer in the White House, to compile a list of specifics and make the public aware of those specifics.

Doing that would, I think, go far toward making clear to the public what actually is going on and what really is at stake—and toward illustrating that the outcome of next year’s election will determine whether this country’s maniacal stampede toward unmitigated corporate reign will be completed or instead halted at least to the extent that the Supreme Court can’t, or finally won’t, play its hand.

To win big next year, the Democrats need only show, I think, two things. They need to show, with specifics, the chasm between government as mega-corporate proxy and government that is distinguishable from corporate power. And they have to present the clear economics statistics that most Americans don’t know, about what the result has been, in the actual distribution of wealth in this country, for example, during the last 30 years, and especially during the last decade, under Republican ideological policies. Those statistics, which are the subject of several recent posts at Angry Bear, are stark, and they are not hard to understand. What they are, though, is unknown to most people.

That needs to change.


In an article today in Slate, former New York state attorney general Eliot Spitzer powerfully discusses three aspects of the Republicans’ several-pronged legislative and judicial campaign to, as the article’s subheading says, eliminate the collective rights of individuals and increase the collective rights of corporations.

Sunday, May 1, 2011


The Republicans have finally taken all that rope they’ve been given for so long to hang themselves with, and have hanged themselves with it.

It looks like the Ryan plan has really spooked a lot of non-wealthy Republican whites, including a lot of elderly people. That, along with the Tea governors’ bald assault on the very idea of collective bargaining, and their wholesale, dramatic reordering of state budget priorities and of the concerns of state government itself, has finally educated the public to what the Republican Party is really after.

The indications so far are that this sudden education of the public isn’t working so well for the Republicans. I doubt that that will change, now that the public finally knows the specifics of their policy goals. I think the backlash will just keep gathering steam.