We’re Somewhere Between 90th and 99th Percentile. You, I Don’t Know.

Spurred by the imminent closure of the encampment in Boston’s Dewey Square we again debated Occupy Wall Street at coffee this morning. Some of my friends argue that the occupations have been essential to starting a national debate on the protesters’ message. My response–after making clear that I harbor no animosity towards the protests–, was that there is no unified message, other than that the economic system is unfair. And that’s not news. There’s certainly no agreement on the root of income inequality–protesters blame everything from Wall Street’s greed to capitalism’s essence. “We are the 99%” implies that the 99% have common economic social interests–a preposterous idea, as this Household Income Graph demonstrates:

Where Do You Fall on the Income Curve” states “the difference in incomes between a household at the 98th percentile and the 99th percentile is $146,118 ($360,435 jumps up to $506,553).” Mind you, that’s the difference between just the 98th and 99th percentile of household income: “the difference in income between a household at the 50th percentile and a household at the 51st percentile is $1,237 ($42,327 versus $43,564).” “We are the 99%” is short, catchy, and sounds relevant, while being useless as a platform to actually do anything.

Pro-ACA Op-Ed

Yesterday the New York Times ran an Op-Ed piece by Harvard Law Professor Einer Elhauge arguing for the constitutionality of the Affordable Care Act under the commerce and necessary and proper clauses. He concludes that “Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity” and “even if the [insurance purchase] mandate were not directly authorized under the commerce clause, it is authorized under the necessary and proper clause as rationally related to the constitutional exercise of the power to regulate premiums and prohibit rejecting the sick.”

Important Fourth Amendment Case

This November the U.S. Supreme Court will hear oral arguments in United States v. Jones, “the most important Fourth Amendment case in a decade” according to New York Times reporter Adam Liptak.  The issue is whether police must obtain a warrant to attach a GPS unit to criminal suspect’s vehicle and then track its movements for weeks. Last year the D.C. Circuit Court of Appeals ruled unanimously in Jones that such GPS tracking required a warrant.  A split exists because the Seventh and Ninth Circuits have upheld the use of evidence obtained from GPS tracking.  The NY Times article reports that many lower courts addressing this issue have cited George Orwell’s 1984, which I describe in the Introduction to my Internet Law Casebook as “describing a world in which governments control all information and omnipresent Big Brother monitors everyone through two-way electronic devices.” My Casebook mentions it because 1984–and Orwell’s similarly-dystopian Animal Farm–were two of the books Amazon.com deleted from its users Kindles after the holder of their copyright claimed Amazon.com was not licensed to sell the books.

George Orwell would be proud of his prescience.

We Can Handle The Truth

A friend criticized publication of Ander Breivik’s photo:

On July 25, the Globe published three handsome photographs of Anders Breivik under the headline “Norway suspect admits ‘facts’, not crime”. By doing so, the paper has elevated an extremist mass murderer to a position of relative glamour. I can only imagine how this choice of photos might encourage other potential killers to start shooting innocents — so they too, can get their images and crazy messages on the front page, even if it is below the fold. Bad choice.

My response was different:

I don’t agree with censorship.

Breivik committed a heinous, monstrous crime. But he doesn’t look like a monster. He could be a Gap model. One could pass him on the street or sit next to him on the subway and not be uneasy–until he opened his mouth. He was able to kill so many on the island because he called them out of hiding, saying he was there to protect them from the shooter. Obviously he was able to establish some trust because he was dressed as a policeman, but I expect his benign appearance helped convince others he was not a monster. His appearance is part of the story. Even if it were not, I’d want to know who did this thing.

From what we know his murders were driven by a lethal mix of ideology and mental illness. He’s acknowledged that he killed the victims but denies criminal responsibility because the killings were “necessary.” He’s written thousands of words explaining his fears of immigration, Islam, cultural mixing. The media is reporting his beliefs and their connection to the ideology of right-wing Christian fundamentalist groups. He killed because he was obsessed with these ideas. Other potential killers are far more likely to be similarly obsessed and motivated by ideas than by a desire to get their pictures in the paper. Should the media not report anything about these racist and murderous ideologies because doing so might inspire others to kill to promote their obsessions? I’d rather expose the hatred at the heart of these beliefs to public scrutiny.

Breivik is one of the most prolific mass-murderers in recent times. The scale of his shooting rampage is unprecedented. Should the media not report the number of victims because other mass murders will try to top it?

If the press censors every fact that might motivate, inflame, or inspire others to engage in similar acts, then what’s left to say? “In some place and at some time something really bad happened. No pictures, facts, or other information at 11.”

I agree with Louis Brandeis: “Sunlight is the best disinfectant.”

Judge Stays Order Invalidating the ACA

The Florida federal court judge who struck down the Affordable Care Act on January 31 has stayed his order enjoining enforcement of the law until the U.S. Supreme Court rules on its constitutionality.  Judge Vinson explains why he stayed his order :

I cannot say that the defendants do not have a likelihood of success on appeal. They do. And so do the plaintiffs. Although I strongly believe that expanding the commerce power to permit Congress to regulate and mandate mental decisions not to purchase health insurance (or any other product or service) would emasculate much of the rest of the Constitution and effectively remove all limitations on the power of the federal government, I recognize that others believe otherwise. The individual mandate has raised some novel issues regarding the Constitutional role of the federal government about which reasonable and intelligent people (and reasonable and intelligent jurists) can disagree. To be sure, members of Congress, law professors, and several federal district courts have already reached varying conclusions on whether the individual mandate is Constitutional. It is likely that the Courts of Appeal will also reach divergent results and that, as most court watchers predict, the Supreme Court may eventually be split on this issue as well. Despite what partisans for or against the individual mandate might suggest, this litigation presents a question with some strong and compelling arguments on both sides. Ultimately, I ruled the way I did, not only because I believe it was the right overall result, but because I believe that is the appropriate course for a lower court to take when presented with a (literally) unprecedented argument whose success depends on stretching existing Supreme Court precedent well beyond its current high water mark and further away from the “first principles” that underlie our entire federalist system. Under these circumstances, I must conclude that the defendants do have some (sufficient for this test only) likelihood of success on appeal.

Judge Vinson also concluded that it “would be extremely disruptive and cause significant uncertainty” to stay implementation of the Act pending appeal, and that other relevant support granting the stay.

Cyberbullying Acquittal

Missouri’s first post-Megan Meier cyberbullying prosecution ended in the defendant’s acquittal.  Elizabeth Thrasher was charged with harassment after a spat with her ex-husband’s girlfriend’s teenage daughter led her to post personal information and photos culled from the daughter’s MySpace page on a Craigslist sex-wanted site.  The daughter kicked off the spat by calling Thrasher a “fat fucking bitch” in an email.   The Missouri law was enacted after the much-publicized suicide of 13-year old Megan Meier, after Meier was bullied by a neighborhood mother acting through a fictitious MySpace proxy.  (I need diagrams to understand these relationships.)  Following the acquittal the state prosecutor said “I think there are some difficulties with the statute that were brought to our attention.”  If convicted Thrasher faced up to four years imprisonment.

Tribe on the ACA

This Op-Ed piece by Larry Tribe, constitutional law scholar and Harvard Law School professor, explains why “[t]here is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb”–in other words, why they will uphold the constitutionality of the Affordable Care Act.

Legal versus Political Issues

And here’s my response to a friend who asked if the Florida decision was a “clear case of judicial activism and over-reaching with a political agenda.”

The challenge to the ACA raises serious constitutional law questions.  The results have been politicized, but the issue goes to the heart of the Constitution’s allocation of power among the states, the federal government, and the people.  Legal analysis requires putting aside agreement with the ends of health care reform and asking this question:  if I disagreed with the operation of the law, would I still believe it was within Congress’s power to pass it?  If Congress decided national defense and public safety required every competent non-felon adult in the U.S. to own a handgun, would it be within Congress’s power under the commerce clause? (There may be other constitutional flaws to this hypothetical but I’m making this up on the fly to frame the question.) The courts that have considered these challenges have so far split on partisan lines, but it ignores the legitimacy of the constitutional issues to assume nothing more than party affiliation drives the outcome.

Pro-ACA Argument

The constitutionality of the Affordable Care Act is a lively topic at morning coffee.  Today a friend sent a link to a pro-ACA argument.  Here’s a copy of my response.

This argument has intellectual appeal–I keep expressing it in the shorthand “not to decide is to decide,” meaning inactivity also has consequences–and it’s a concept that the law recognizes in some contexts. In some states, a seller of residential property has a common-law (meaning, judge-imposed as opposed to statutorily-imposed) duty to disclose information about the property that would not be readily apparent or easily discoverable through typical buyer’s diligence. The duty arises just by virtue of the seller’s superior knowledge, whether or not the buyer asks a question that would trigger disclosure, and the seller can be liable for any economic harm the buyer suffers from the seller’s failure to disclose. The legal question, though, is not whether the argument has intellectual appeal. It’s whether regulating inactivity is within Congress’s power under the commerce clause. Answering that question requires looking at prior commerce clause cases to see how the Court has defined the scope of commerce clause power. This author frames the question this way:

the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system

That law is not that simple. In 1995 in US v Lopez the Court ruled the Gun Free School Zone Act was beyond Congress’s commerce clause power. The government argued (among other things) that guns are sold in interstate commerce, that guns are often used in connection with the drug trade, which is in interstate commerce, that the presence of guns in schools has a deleterious effect on education, turning out students less able to reach their potential as economic actors, affecting interstate commerce. The Court disagreed, saying there was insufficient nexus between the activity regulated–guns in schools–and Congress’s commerce clause power. If the law were as simple as the writer suggests the Lopez case would have come out the other way, because “guns are in interstate commerce; and the Gun Free School Zone Act regulates gun possession.”

My aim is only to explain the legal context of the ACA challenge. It’s easy to talk about as pure politics, and if the Court eventually strikes down the law in a 5-4 decision I have no doubt the common wisdom will be that it was decided on pure politics.  I think the legal discussion is more interesting and intellectually challenging than the binary left/right, democrat/republican, pro-Obama/anti-Obama discussions.  It involves fundamental issues about natural rights and individual liberty, as the founding fathers understood them, and the Constitution’s limits on federal government power.