Archive | June 19, 2012

How Much Does the Individual Mandate Case Matter?

Co-blogger Orin Kerr asks an important question. How much effect will the individual mandate decision really have? To some extent, we can’t really know. It depends in part on the Supreme Court’s reasoning in upholding or striking down the mandate, and also on future political developments, including who gets to make the next several appointments to the Court. Still, I think a few tentative thoughts are in order. In some ways, Orin is right that the decision will probably not have as much effect as avid partisans claim. Nonetheless, it could well have an important impact both legally and politically.

I. The Legal Impact.

On the legal side, claims that a decision striking down the mandate would somehow restore Lochner v. New York are wildly overblown. Only slightly less implausible are assertions that it would lead to anything resembling a full-blown return to pre-New Deal federalism doctrine. If the Court strikes down the mandate, it probably will not even reverse the most extreme recent Commerce Clause cases, such as Gonzalez v. Raich, much less major New Deal-era cases such as Wickard v. Filburn. Instead, the Court would most likely distinguish Raich, perhaps on grounds similar to those I outlined here. I would love to see a decision overruling or severely limiting Raich. But the votes simply aren’t there for it so long as Raich majority members Scalia and Kennedy are still on the Court.

The legal impact of a decision upholding the mandate would be more difficult to confine. The federal government has presented a variety of arguments claiming that the health insurance mandate is a special case. If the Court upholds the mandate, we will probably get a majority opinion endorsing one or more of these “health care is special” contentions. The problem [...]

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Corporate Welfare for the Washington Redskins

Richmond-Times Dispatch columnist A. Barton Hinkle describes a massive corporate welfare handout that the Washington Redskins just got from Virginia’s state and local governments:

The announcement that the Washington Redskins will move their training camp to Richmond was met with mixed emotions, as they say. It’s certainly great news for Virginia’s capital city. Virginians across the state are happy the Skins will not decamp to Maryland. On the other hand, a fair number are shocked at the public funds being lavished on the team.

The Old Dominion will give the Skins $4 million; Loudoun County (home to the team’s headquarters) will give them another $2 million, and Richmond will kick in $400,000. All this for “the third-richest sports franchise on the planet behind British soccer giant Manchester United and the Dallas Cowboys,” as Richmond Times-Dispatch columnist Jeff Schapiro noted a week ago….

Football fans will be delighted to have the Skins in town a few weeks out of the year. But when it comes to the subsidy, even some longtime fans can’t help agreeing with State Sen. Chap Petersen—a season ticket holder—when he called it “corporate welfare at its finest.”

The official rationale for the huge subsidy is promoting economic development. But, as Hinkle points out, studies overwhelmingly show that sports team and stadium subsidies don’t actually produce any net development; they mostly just transfer wealth away from other, often more productive, activities.

The only thing that can be said for the Redskins is that they still have a long way to go before they get as much corporate welfare as the New York Yankees. [...]

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Report: Kochs and Cato Settle

The National Journal is reporting that the Koch brothers have settled their lawsuit against the current leadership of  the Cato Institute:

“Looks like we’ve come to an accommodation with the Koch brothers, Cato founder and president Ed Crane said Tuesday in a email to employees.
Staffers will be briefed Monday on the settlement by Cato Chairman Bob Levy and John Allison, a prominent libertarian and former BB&T chief executive office, who mediated the negotiations, Crane said. “It will be great to get all this unpleasantness behind us,” he wrote.
In a follow up email to staff, Crane cautioned that negotiations are ongoing.
The deal will settle a lawsuit the Koch brothers filed in February over shares that determine control of Cato. . . .
The settlement involves dissolving the shareholder agreement. In addition, Crane is expected to retire under an agreement that allows him to select his successor, though the Koch brothers could veto the hiring.

Assuming this report is accurate, this is tremendously good news for all involved. Whatever the merits of the Kochs concerns about Cato’s current management, a hostile takeover was not in the interest of Cato or the broader libertarian cause to which they have devoted so much over the years. [...]

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The Second Amendment and People Who Have Past Misdemeanor Convictions for Nonviolent Gun Possession

Chicago law bans gun possession without a license, and provides that licenses may not be issued to anyone who has “been convicted by a court in any jurisdiction of … an unlawful use of a weapon that is a firearm.” Shawn Gowder has a misdemeanor conviction for “unlawful use of a weapon” based on simple possession of a gun; the conviction dates back from 1995 (it was originally a felony but was later redefined a misdemeanor because of a state court decision holding that struck down the law making the conviction a felony on state single-subject-clause grounds).

Gowder sued, and today a federal district court (Gowder v. City of Chicago (N.D. Ill. June 19, 2012)) held that the law violated Gowder’s Second Amendment rights. While the Supreme Court has stated that felons may be barred from possessing guns, and the Seventh Circuit held the same about people who have violent misdemeanor convictions, the district court held that nonviolent misdemeanants with convictions for nonviolent gun possession offenses do not permanently lose their Second Amendment rights. I think this is likely correct, and will likely be upheld on appeal (though that’s always hard to tell).

The court also held that the Chicago ordinance was unconstitutionally vague, because it wouldn’t be clear to a reasonable citizen that “unlawful use of a weapon” includes simple possession offenses, especially given that the phrase is defined differently in the laws of different states. But on this point, I think the district court likely erred.

“Unlawful use of a weapon” is defined by an Illinois statute to include simple possession of the sort for which Gowder had been convicted — in fact, his 1995 conviction was under that very statute — so the Chicago ordinance can and should be interpreted to refer to that statute. [...]

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If You Really Wanted to Read the Tea Leaves from Justice Ginsburg’s Speech at the ACS….

This post is nothing but sheer speculation without any support whatsoever. I’m sure I’m wrong about this, and you shouldn’t take this post at all seriously. Really, it’s just silliness that you should ignore. With those caveats, I was intrigued by Justice Ginsburg’s light and amusing tone during her commentary about the Affordable Care Act litigation at last week’s American Constitution Society convention. Justice Ginsburg often gives public speeches and comments to the press about the current Term, and more than any other Justice she is willing to give a few subtle hints about how the Court’s major undecided cases might be coming out. The thinking — perhaps foolish — is that her tone in these speeches acts as a modest but not-entirely-useless barometer of how her side is doing.

If you watch Justice Ginsburg speaking about the Affordable Care Act case starting at the 27:40 mark of the video, she seems to be having fun talking about the case. She says that the case is indeed “unprecedented,” at least if you mean unprecedented in “the number of press conference, prayer circles, protests, and counter-protests” held during the oral argument. She describes one of the questions as being whether the individual mandate should be “chopped like a head of broccoli” from federal law. She pokes fun at the obscurity of the anti-injunction act issue. She jokes about the rumors concerning when the case will be handed down. Maybe Justice Ginsburg was just in a good mood. Maybe there were just some obvious jokes to make on the mandate case relative to some of the criminal cases she covered. Yes, I’m sure that’s it. Any other conclusion would be silly speculation. But given all the interest in how the individual mandate case might come out, I wonder if some are speculating [...]

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How Much Will the Ruling in the Health Care Case Matter?

The Supreme Court will hand down its decision in the Affordable Care Act case in a few days, and there’s lots of apocalyptic rhetoric from both sides about what a decision affirming or reversing might mean for the law and for the Supreme Court. I agree that the decision is likely to be hugely important. But I also think there are some reasons why the mandate decision may end up being less significant than many people think.

First, the challenge to the mandate has had an enormous impact even if the mandate is upheld. The political, rhetorical, and legal attacks on the mandate have caused a significant shift in how the legal culture on both sides of the aisle construes federalism issues. By the end of the Rehnquist Court in 2005, the Rehnquist federalism revolution was mostly dead. When Rehnquist and O’Connor departed and were replaced with Justices seemingly less committed to federalism than they, the prospect for any federalism revival at the Court seemed dim. I remember attending the oral argument in Comstock in January 2010 and being aghast at how uninterested in federalism the conservative Justices were. In just two years, opposing the mandate on constitutional grounds rooted in federalism principles has become the standard Republican position. This change has dramatically revived the right’s interest in limited federal power, and has signaled to the left that federalism concerns must be taken seriously. That reemergence of interest in federalism will continue whether the Court strikes down the ACA or upholds it.

Second, if the oral argument in the mandate case is a good guide, the Court may end up with a test that strongly discourages mandates whether or not this particular mandate is upheld. At oral argument, Justice Kennedy suggested that perhaps mandates should require some sort [...]

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Snow Figures as “Fighting Words”

A fighting bookend for the personally abusive epitaphs case, and also an interesting issue in its own right — Svedberg v. Stamness (N.D. 1994) (emphasis added):

This case arises from what is apparently a long-running feud between Anthony Stamness and Christian Svedberg, both minors…. Testimony indicated that Stamness and others referred to Svedberg as “Dumbo,” a cartoon elephant with unusually large ears, and Stamness had, on one occasion, stated, “You had better watch it Dumbo or I will kill you.”

In addition Stamness, along with others, constructed three large snow figures that were prominently displayed throughout the community of Northwood. All of the snow figures were constructed with very large ears. After hearing the evidence the court concluded that these threats and taunts, harassment, and construction of snow figures were intended to adversely affect the safety, security, and privacy of Svedberg. As a result the court ordered that “Anthony Stamness shall have no contact with Christian Svedberg and shall cease or avoid the following specific conduct: Uninvited visits to the Petitioner, harassing phone calls to the Petitioner, calling the Petitioner abusive names (including “Dumbo”), or any other conduct which injures the Petitioner, either physically or emotionally, including the construction and public display of any effigy of Christian Svedberg.”

The court upholds the order, on the grounds that the defendant’s conduct, including the snow sculptures, were “fighting words” that justified the injunction. (Note that the injunction didn’t focus on threats, but also banned calling Svedberg “dumbo” and publicly displaying “any effigy” of Svedberg.)

Logic demands that when determining whether an expression constitutes fighting words, the age of the addressee must be taken into account. No one would argue that a different reaction is likely if a thirteen-year-old boy and a seventy-five-year-old man are confronted with identical fighting words….


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When Is Following Someone to Investigate Their Possible Misconduct a Crime?

Compare Anonymous v. Anonymous (N.Y. Sup. Ct. 2010) and Fisher v. Johnson, 1992 WL 83309 (Minn. Ct. App. Apr. 28). Anonymous concludes that “hiring of a professional, licensed private investigator in a matrimonial action to gather evidence [of a spouse's infidelity] is for a proper and legitimate purpose,” and doesn’t constitute criminal harassment, criminal stalking, or conduct that justifies the issuance of a restraining order. (Let’s focus here on conduct that consists just of following and photography, and doesn’t include breaking into people’s homes, tapping their phone lines, hacking their computers, pretending to be someone else in order to get confidential information from banks or phone companies, or other conduct that is independently criminal.)

Fisher, on the other hand, upholds a restraining order against a mother who was following her daughter, “presumably to gather evidence of alcohol use in an effort to win custody of one or all of Fisher’s children.” Such conduct, the court held, was an “intentional violation of privacy” and a violation of the state statute, which justified the issuance of a restraining order that would prevent future such behavior. Nothing in the opinion suggested that plaintiff reasonably feared a violent attack from her mother (though there had been “alleg[ations of] various violent confrontations,” it was the invasion of privacy and not any threat that was the basis for the decision).

Let’s assume that both decisions are consistent with the relevant state statutes (which are worded differently). My question: What should be the proper rule in cases such as this? One can imagine a wide range of other such situations as well, such as a father having his child’s lover followed to see whether the lover is lying about various things, an investigative reporter following someone who he suspects is engaged in some sort of [...]

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“21 Killed in Attacks on Churches in Nigeria”

ABC News reports:

Suicide bombers killed 21 people [and wounded at least 100] in attacks on three churches in Nigeria during Sunday services, exacerbating religious tensions in a West African nation that is almost evenly divided between Muslims and Christians….

It was the third Sunday in a row that deadly attacks have been carried out against Christian churches in northern Nigeria. No one immediately claimed responsibility for the latest one, but suspicion fell on the radical Islamist sect Boko Haram because it took responsibility for the two earlier weekend assaults.

Boko Haram is waging an increasingly bloody fight with security agencies and the public in Nigeria. More than 560 people have been killed in violence blamed on the sect this year alone, according to an Associated Press count….

Atrocity has, unsurprisingly, begun to lead to atrocity, though fortunately at this point at a smaller scale, and apparently just beginning (which suggests that it can more easily be stopped); the Christian Science Monitor reports:

Frustrated with the government’s inability to stop a string of such attacks in recent months, some Christians responded today with reprisals, killing at least 7 more people….

Until today, Christians living in the predominately-Muslim north have mostly resisted being provoked to violence, responding instead with calls on the government to suppress Boko Haram and reestablish security. Today’s retaliation from some Christians is raising concerns that a cycle of religious violence could start in Nigeria, Africa’s most populous nation.


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Interesting Fair Use Case

Northland Family Planning Clinic v. Center for Bio-Ethical Reform (C.D. Cal. June 15, 2012) rejected a copyright claim, finding (I think correctly) that defendant’s use was a fair use as a matter of law.

Northland Family Planning Clinic created a video (apparently this one) titled “Every Day, Good Women Choose Abortion,” which, true to its title, aimed to tell women that getting an abortion is a decision that good women can and do make. Defendants created several videos that included several verbatim segments of the Good Women Choose Abortion video, interspersed with graphic imagery of abortions and, in some versions, some commentary, e.g., a quote from George Orwell. (The latest version, called the CBR II video by the opinion, is apparently here.) Plaintiffs sued, claiming copyright infringement. Defendants argued the use was a fair use, and the court agreed. An excerpt, though please read the whole opinion (which is pretty readable) for the details:

In this case, the balance of the [17 U.S.C. § 107] factors weighs in favor of finding fair use. While the accused works have some commercial use, their transformative character [as criticism of the original] substantially eclipses that consideration. Thus, the first factor tips in favor of Defendants. Because the Northland Video is, at least in part, a creative work, the second factor militates in favor of Northland. The third factor weighs in favor of Defendants because they did not use an excessive amount of the Northland Video to create their parody, in light of the Fisher factors [which state that parodies and similar critical works are generally entitled to use substantial portion of the original in order to comment on it -EV].

Finally, the fourth factor also weighs in favor of Defendants because the accused Videos did not create a cognizable market injury


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Reading the Tea Leaves on First American Financial Corp v. Edwards

It looks to me that there is only one case undecided from the Supreme Court’s December sitting — First American Financial Corp v. Edwards — and only one Justice without a majority opinion assignment: Justice Thomas. That suggests that the majority opinion was at least initially assigned to Justice Thomas. The case involves whether the purchaser of real estate settlement services had Article III standing to sue for an alleged violation of the Real Estate Settlement Procedures Act that the petitioner argues did not affect the services’ price or quality.

Even if I’m right  so far, it’s been long enough since argument that there’s a reasonable chance that something unusual has happened–i.e., that Justice Thomas has lost the majority and is writing only for a plurality or perhaps even writing a dissent. Mind you, my predictions have generally been no more accurate than the Magic 8-Ball‘s, and I suspect this case will be no different.

One alternative possibility I have heard is that Justice Thomas was assigned the majority opinion in yesterday’s Williams v. Illinois but lost it, and he did have a separate opinion in that case. But because Justice Thomas’s views on the Confrontation Clause have long been a bit different from his colleagues–witness his lone concurrence in the judgment/dissent in Davis v. Washington–I doubt he would have been assigned that opinion.

What do you think? [...]

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