Constitutional Confab

A hopefully insightful discussion of current issues in constitutional law and the Supreme Court. Don't blame me if it's not intelligible, it's the Constitution.

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Mandate Halftime(?) Score: 3-2, Advantage Demos

Last week a federal district court judge ruled that the mandate, and therefore the Healthcare Reform Act, is constitutional, using much the same reasoning as the judges from Michigan and Virginia who previously held the act constitutional, so I'm not going to rehash it here. But, you can read about the opinion here or here. 

It's probably not actually halftime, but as a sports fan, I like to make sports metaphors. 

I was trying to think about what sport best exemplifies the federal court struggle over the HealthCare Reform Mandate.  I decided it's Soccer:

It's a lot more fun to play than to watch. (As in, I bet the lawyers working on these cases are super jazzed (that's right, jazzed) to be working on them, but for the rest of us it's not nearly as exciting). But it's still a little fun to watch. (As in, we're still keeping an eye on this stuff).

People only really get excited about soccer every once in a while (see World Cup 2010 or the Health Care Mandate) and pretty much ignore it the rest of the time. 

Also, you really only want to pay attention to the goals (the Circuit Court opinions), the rest of the time, you only half-watch the game and do something else at the same time because you know no one cares about how many yellow cards a team gets (the District Court opinions).

Not so secretly, the desire of your heart is for a game decided in a shoot-out (the Supreme Court), otherwise it just feels like a let down.

So, I guess the score in my sports metaphor is really 0-0. Sorry to lie to you this whole time.

But if you look at the game stats, the Reds have 3 yellow cards (rulings in favor of the mandate) and the Blues have 2 yellow cards (rulings that the mandate is unconstitutional). I guess in that system, the Blues are still winning.

(I really hope that made any sense at all and I also apologize to Soccer fans, I don't mean to be offensive to your beloved Futbol.)

[jmhfeuille-blog]

AT&T Loses, I Win.

I don't want to toot my horn (Ok, I really do), but the Supreme Court released their opinion in FCC v. AT&T today, which I first discussed here (where I thought that given the propensity of the conservatives on the Court to be wary of "privacy rights," they would not be willing to extend corporate personhood in this instance and the liberals would not be willing to recognize corporate personhood in any form).

In a unanimous opinion (who says we have such a political court?), the Supremes held that corporations (specifically AT&T) do not have a right of personal privacy for purposes of the Freedom of Information Act. 

Chief Justice Roberts wrote the opinion, basically saying that corporations do have some attributes of personhood but privacy is not one of those attributes. Roberts closed: "We trust, AT&T will not take it personally."

Oh Roberts, who knew you had such a great sense of humor?

[jmhfeuille-blog]

Whose Patent is it?

Yesterday, the Supreme Court heard oral argument for Stanford v. Roche Molecular Systems. 

The Court is trying to decide whether a federal statute gives universities the patent rights to any invention created in part with federal funds. The question is whether a university employee involved in the invention can sell rights in the invention to a third party, without the university’s consent. 

The federal statute, the Bayh-Dole Act, sets up a process for contractor-universities to obtain the rights to a patent for an employees invention.  In this case, Stanford did not go through the process in order to obtain the patent to an extremely lucrative invention that tests for the AIDS virus, which the employee sold to Roche Molecular. 

The Patent Act bluntly says that the patent in an invention belongs to the inventor and has no provision discussing "inventions-for-hire," which is what Bayh-Dole was supposed to address. In this case, Stanford failed to adhere to Bayh-Dole's procedures.

Stanford tried to argue that the principle interest in the case is making sure that the United States' can decide where the patent should go when they are pumping millions of dollars into this research. 

But to me, it looks like the Bayh-Dole Act was not intended to start stripping inventors of patents merely because they were inventing while working for a University that is federally funded. It looks (to this untrained eye) like the act was intended to give Universities the ability, not the right, to obtain patents from their employees.   

In the University-research situation, what incentives does a university have to hire researchers if they are not able to get some rights to the patent?

On the other hand, what sort of incentives are there for the graduate student to be truly innovative if he or she is forced to hand over their groundbreaking (Read: Extremely Profitable) invention over to the university they are already paying to attend?

[jmhfeuille-blog]

New York Times Defense of Corporate Personhood

Interestingly, while most newspapers have spent the better part of this last year criticizing Citizens United, Adam Liptak of the NY Times realized something today: Newspapers are corporations. 

Liptak discusses the possibility that the decision in Citizens to extend First Amendment rights to the corporate "person" may very well be a bad decision, but without it, newspapers may be up a creek:

"If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?

The usual response is that the press is different. The First Amendment, after all, protects “the freedom of speech, or of the press.” Since “the press” is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.

But the argument is weak. There is little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers."

He goes on to discuss the really interesting question of new media: Twitter, Facebook, or perhaps Blogs. When someone uses these mediums to report news, do they become "The Press." My initial response to that is: "No." (Except for the Blogs, I'm totally a member of the press, I get special treatment, right?)  But that may be because I am not trying to make the argument that News Corps are different than IBM or Coca Cola.  I think I may not have as much of a problem with corporate personhood as Mr. Liptak.

Anyway, Mr. Liptak expresses an interesting part of the corporate personhood debate that we haven't heard much about: maybe not all corporations deserve personhood status for speech but maybe some do.  

But, Mr. Liptak also admits that originalists have shown: "The [First] amendment surely meant to cover both oral and written expression... rather than a specially protected institution.” If that is true, how can we afford greater protection to some corporations (news media, publishers, etc) and not to others (AT&T, Coca-Cola, or God-forbid Citizens United)? 

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Bypassing the Circuit Court

After this week's ruling on the constitutionality of the Health Care Mandate by Florida Judge Vinson, there has been plenty of talk on the Interwebs that perhaps the next step in the process will be taking the question straight to the Supremes instead of taking an appeal to the Circuit Court and then once decided there, to the Supreme Court.

There is a procedure in place for the Supremes to hear a case before it has been heard in the Circuit Court - Supreme Court Rule 11:

"A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."

Clearly, this case is "of such imperative public importance as to justify" the Supremes take it on direct appeal. 

However, the Court almost never does that.  The past few times they have it has been when they have combined cases, one on appeal from a Circuit Court, and one on appeal from District Court. 

In my opinion, I don't think they will take it on direct appeal.  Most of the experts think that the decision will come down to Justice Kennedy's vote (I agree) but I think Justice Kennedy would love to have more time to think this over, and the rest of the Justices would love to have more time to pull him to their respective sides. If the Court doesn't take it on direct appeal, rough estimates put the Court hearing it just before November 2012.  That should be intriguing. 

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Individual Mandate of ObamaCare - All Tied Up

Today, Federal District Court Judge Vinson ruled the individual mandate portion of the Health Care Reform passed last year unconstitutional. Judge Vinson went on to rule that the mandate is not severable from the entire act, making the entire act unconstitutional. Check here for the opinion; here for the WSJ story; here for the NYT story; here for the Politico story. Judge Vinson basically argues that the Commerce Clause cannot apply to commercial inactivity because if it did apply Congress' power to regulate any and all activity would be limitless. Judge Vinson then goes on to declare that the whole act is unconstitutional: "First, the Act does not contain a “severability clause,” which is commonly included in legislation to provide that if any part or provision is held invalid, then the rest of the statute will not be affected. . . . Moreover, the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself. The health insurance reform provisions were cited repeatedly during the health care debate, and they were instrumental in passing the Act." It's seems to me that it was just an oversight to leave out a Severability Clause, but since they left it out, the whole act is unconstitutional if one part is found unconstitutional. (I guess it's pretty hard to proofread a thousand page bill). Interestingly, the previous decision by a district court in Virginia to rule that the mandate is unconstitutional was accompanied by declaring the rest of the act constitutional. Of course, this will be appealed, and most likely end up at the Supreme Court. The only question is when. The Score is now 2-2.

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No Privacy at NASA

Last week, the Supreme Court handed down their opinion regarding an employee's right to privacy in NASA v. Nelson. (I talked about this case here and here).

Interestingly, it was a unanimous decision, with Justice Kagan sitting it out since she was involved with the Government's preparation of the case when she was at the Attorney General's office. 

The Court overruled the 9th Circuit decision which protected an employee's "Right of Privacy" when filling out employment background checks.  

Justice Alito wrote the opinion for the case.  What most commentators have focused on so far has been Alito's assumption that there is a right to privacy. Alito off-handedly notes that the Court recognizes some vague privacy right without specifying what that right is in this context. Mostly because he doesn't have to in order to say that NASA can override that right in this instance. 

I think Chief Justice Roberts, the ultimate strategist, encouraged Alito to write this opinion in a way that would encourage an unanimous decision.  Roberts and Alito needn't worry about Thomas and Scalia (stringent in their belief that there is no such thing as a Privacy Right, as they note in agitated dissents), but Alito knew he would need to at least recognize that there is some sort of Privacy Right, albeit limited, in order to get the Liberal Four on board.  When I listened to the Oral Arguments in October, it seemed clear to me that the Liberal Four sided with NASA in it's need to know the people they were hiring and make sure they weren't hiring drug addicts or terrorists, but it also seemed clear that the Liberal Four might hope to be able to write an opinion that clarified the Right to Privacy and didn't limit it too much. By having Alito write the opinion, Roberts was able to control how much that right was expounded upon and expanded, specifically, not at all expanded or expounded upon.

What I also find interesting is that the Court heard Oral Arguments last week on FCC v. ATT, which I discussed here. FCC v. ATT regarded a corporation's Privacy Right. It will now be interesting to see if one of the Liberal Four try to use FCC v. ATT to expand or expound on the Right of Privacy and how vehemently against this right the Conservative Four will be, especially when thinking about how the Court (read: the Conservative Four and Kennedy) expanded Corporate Personhood in Citizens United last year. 

[jmhfeuille-blog]

My Highlights from the State of the Union

So, I didn't get to watch the whole thing. But here are my highlights from what I did get to see. I'll quote the President and give my thoughts.

"Double our exports by 2014." -- Seriously? Yeah? Wow. How? Anyway....

"The Department of the Interior deals with salmon when it's in fresh water, but the Department of Commerce deals with it in salt water. I hear it gets even more complicated when it's smoked." -- Good line. President Obama wants to reorganize, simplify, and condense the regulatory and administrative agencies of the government into a more streamlined government. I like that. I hope that happens. Our bureaucracy is ridiculously huge and out of control. 

"Any legislation that comes to my desk with earmarks will be vetoed" -- some Congressmen looked ecstatic, others looked like their world had ended. All I can say is that I could keep this promise too if the opposing party was in control of the House. BUT, it is admirable and I hope he does keep it.

Focus on frivolous medical malpractice suits -- Because we didn't do this with Health Care Reform why...? Anyway... At least we're doing it now. 

Revise the tax code. Simplify it for the average American -- While I agree, I'm hesitant about this since I just spent thousands of dollars of tuition on a class so that I could be one of the few who could purport to understand the tax code.    

(Al Franken looks bored. Like he really really misses the comedy clubs he used to perform in).

Obama discusses the American Dream: "You can make it if you try." While I agree, I don't think the American Dream should be "work as hard as you can and one day you'll be rich." There are plenty of people out there that work as hard as they can and somehow get laid off because of the recession. I think the American Dream should be: "Do you what you love, and do you it as best you can." When you look at the companies that are successful globally, they are the companies that do what they do because they love it. Google. Apple. Ford (pre-80s and 90s Ford). Etc. For America to be as exceptional as President Obama seems to think it is, Americans need to get back to doing what they love to do and doing it well, instead of just trying to work hard for the money.

(Justice Ginsburg slept through the WHOLE thing. Seriously. The entire night. At one point, Justice Kennedy woke her up. She didn't seemed to care, she went right back to sleep. I hope someone woke her up to get her to go home).

All in all, I thought President Obama did a good job of talking about fiscal conservatism and I hope that he does indeed focus on that these next two years. 

[jmhfeuille-blog]

Wisconsin Law Professor Andrew Coan recently wrote an interesting article (linked above) in the National Law Journal basically stating that both sides in the Health Care debate are correct:

"Opponents of the act are correct that, if Congress can force individuals to purchase health insurance, it can, for all practical purposes, do anything. For courts to uphold the act would thus cast aside a cherished principle of American constitutional law — that the national government is one of limited powers, with everything else left to the states. At the same time, proponents of the act are correct that, if Congress cannot force individuals to buy health insurance, it would be effectively impossible to require insurance companies to cover people with pre-existing conditions. For courts to invalidate the act would thus cast aside another bedrock principle of American constitutional law — that Congress has plenary power to regulate interstate commerce, including health insurance, and also wide flexibility in choosing how to carry that power into effect." Coan also claims that both sides are wrong in ignoring the central question: "how to manage the conflict between two fundamental constitutional principles." While he makes an interesting point, and I think, an extremely valid one, He leaves the problem unsolved. But, it's a good read, I suggest you check it out.

UPDATE: As I thought about Coan's article, I realized something.  All good, debated constitutional issues should have this same problem.  All hotly contested issues should have valid arguments on each side.  As a country, and as a people, the best thing we can do is state the arguments for our side, listen to the other side (respectfully), and hope our side wins.  And when your side doesn't win (because at some point, your side won't win, trust me) accept it and move on.  That doesn't mean you have to be happy about it, but you don't have to hate everyone whose side won. 

[jmhfeuille-blog]

Invading the Privacy of your own... Corporation?

Today, the Supreme Court will hear oral arguments on Federal Communications Commission v. AT&T, Inc. It's a complicated case, with many facts (which you can read here, if you like torture) but it is a pretty interesting issue. The Court will be asked regarding the Freedom Information Act exception that permits the government to refuse an information request for information gathered during law enforcement investigations if disclosing the information would invade the individual's "personal privacy"; does this exception also protect the privacy of a corporation?

This is an extension of the basic question asked in last year's Citizen United: Which rights and liberties afforded to individuals can also be afforded to the corporate "person"?

In this case, AT&T's competitors have asked for information was gathered during a law enforcement investigation. Clearly, law enforcement investigations afford the government the ability to be a little more prying in their information gathering, perhaps gathering corporate information that may be secret otherwise. If competitors are then able to access this information through the Freedom of Information Act simply because the government was able to obtain a court order for otherwise secret information that seems a little shady in my book.  

However, extending this exemption to Corporations does scare some people that do not want individual rights extended to the "Corporate Personhood." And some may jump to the conclusion that simply because the Court extended Personhood to Corporations in Citizens United they will be willing to do so here as well. I don't think this is true. Firstly, Citizens was a 5-4 decision. Secondly, the right to speech extended in Citizens is a much more valued right than the right to privacy in this case. It will be interesting to see how the Court handles this issue and if this case will be as closely followed and contested as Citizens was.

UPDATE: Something else I just thought about: While Citizens United extended "personage" rights of free speech to Corporations, the justices that did so were conservative ones.  These conservative justices aren't the most friendly to "privacy" rights, and two of them (Thomas and Scalia) would rather privacy rights were recognized at all. In light of that, it would have to be the more liberal justices who were suddenly in favor of giving Corporations "personage," which they vehemently opposed in Citizens. 

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Someone has decided that it might be interesting to see who is the funniest Supreme Court Justice. Lo and behold, a study has been done and Justice Scalia is the winner. I think he might be extremely flattered and excited by this news. Whereas the runner up, Breyer, probably does not care one bit. I can't decide what's better: a justice who wants to have a sense of humor, or one who accidentally has one. The link above is a WSJ post about the study.

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Masked Protesters

The ABA Journal reports that the DC City Council has passed a law that forbids the use of masks by protesters.  More troubling, I think, the law also allows the DC police to arrest a group of 3 or more protesters who did not inform the police of the protest ahead of time. One George Washington Law Professor is upset about this. While the ban on masks seems at upsetting at first glance, it may not be as troubling if we think about it as a "disclosure" requirement.  Other areas of free speech have disclosure requirements: see Campaign Finance law.  On the one hand, if people are willing to protest (in this case, animal cruelty outside residences of people who apparently facilitate animal cruelty) shouldn't they be willing to show who they are?  On the other hand, perhaps the protesters are afraid that people who facilitate animal cruelty may turn to people cruelty if they knew who exactly was protesting against them.  It's an interesting question.  In most areas of free speech, a restriction on speech requires a substantial government interest for the restriction to be justified. I'd be interested to see what the City Council would say their government interest is. 

The more troubling part of the law to me is the second part allowing the police to arrest a group of 3 or more protesters who have not informed the police of their protest ahead of time.  The First Amendment protects the right to peaceably assemble. This part of the law just seems too broad to me.  What if a group of protesters meet outside a fellow protesters house before heading to the official site of protest, could the police arrest them just for meeting?  Like I said, troubling. 

In other news, another challenge to Health Care Mandate has failed.  A judge in Virginia ruled the Mandate constitutional this week.  By my count, the score is 2 to 2.  

[jmhfeuille-blog]

Two Things: Sharia Law and Chief Justice Robert's Facebook

The Wall Street Journal Law Blog reported today that a judge in Oklahoma permanently halted the Oklahoma law, passed earlier this month, that banned any citation to Sharia in a judicial opinion. The order merely gives the judge more time to determine the constitutional challenge to the law.   It is unsurprising that the judged halted execution of the law, whether the judge is inclined to determine the law is invalid or not.  However, as I posted here, I cannot imagine this law lasting.  Just to reiterate, it seems like Sharia law could be used in certain legal situations (arbitration or mediation) but an outright ban would violate the Free Exercise of Religion clause of the 1st Amendment. On the other hand, I don't think judges should be deciding what interpretation of Sharia law or Islamic law, or Kosher law, etc, is the correct interpretation.  In my view, that would be a violation of the 1st Amendment's often-called "Separation of Church and State" clause. Anyway, I'm not surprised that the judge halted execution of the law for now. 

On a lighter note, here is a link to a fictitious Facebook page for Chief Justice Roberts. It's pretty awesome.  I might ask him to be my friend too.

PS. It's finals season here at Law School.  So, the few posts that I get to will be short and sweet.  At least you have that to look forward to.

[jmhfeuille-blog]

Free Speech and Anonymity

Live Stream from the Harlan Institute:

Watch live streaming video from harlaninstitute at livestream.com

You can also follow Above the Law's liveblog here.

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Bracelets, Breast Cancer, and Speech

The Wall Street Journal Law Blog discussed a recent lawsuit: "Two mothers filed a lawsuit Monday against a Pennsylvania school district that suspended their daughters for wearing the popular “I (heart) boobies!” bracelets."  You can also read the AP Story here. The bracelets are sold by a charity in order to raise awareness of breast cancer. After a month of wearing these bracelets without incident, the girls were suspended and banned from school dances for a month.

According to WSJ Law Blog, the school officials argued that the bracelets are demeaning, distracting, and belittling of the breast cancer. 

The school's behavior seems ridiculous.  "Boobies" is, I think, the most innocent word to use when referring to breasts (At least when you are trying to be clever, and not make a bracelet sound like a doctor). Furthermore, forbidding these bracelets does seem to be an unconstitutional infringement of these girls' free speech rights.

The Supreme Court recognized "symbolic acts" as protected speech in West Virginia v. Barnette, Stromberg v. California, Thornhill v. Alabama, Edwards v. South Carolina, and Brown v. Louisiana. If raising awareness for breast cancer and showing support for a breast cancer charity is not symbolic speech, I don't know what is. 

In 1969, two high school students and a junior high school student were suspended for wearing black armbands to protest the Vietnam War. The school in that case said they were worried about this protest inciting arguments or fights between the protesting students and students supporting the war.  Compared to the school in our present case, this seems like a more legitimate interest for the school, and yet the Supreme Court decided this was not a good enough reason to restrict free speech.  (Tinker v. Des Moines School District)

In that case, Justice Fortas said: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gates."  The Court said that the school would "have to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."  Even if you do find the word "boobies" demeaning, distracting, or belittling, it seems to me that this reason does not meet Fortas' test quoted above.  It seems like the school was almost attempting to fail this test as best it could.  It seems like they were only trying to avoid discomfort and unpleasantness.  

The parents' are suing the school district to remove the suspension and expunge the girls' disciplinary records.  I expect the parents' to win, just as I expect this to be handled swiftly and easily by the District Court of the Eastern District of Pennsylvania. 

[jmhfeuille-blog]

Decision Time and More Commerce Clause

On Friday, the Court announced that it would be releasing at least one decision on Monday morning at 10 AM EST.  The Court was not clear how many decisions will be released and did not say what cases the decision will be on. But I hope to keep you updated as best I can.

The Court will also announce which petitions they will accept from their November 12 Conference.  One petition I think will be interesting to keep an eye on is: Alderman v. United States. Alderman asks the Supreme Court to determine whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress’s Commerce Clause authority.  Put another way, does Congress have the authority to regulate simple possession of an object - not the commerce leading to possession? The Ninth Circuit upheld Congressional authority to do just that based on a 1977 decision - Scarborough v. United States. Scarborough held that proof that a firearm traveled in interstate commerce satisfies the required nexus between possession of the firearm and commerce.  Compared to the current Commerce Clause test under Raich, Morrison, and Lopez, (none of which explicitly overturned Scarborough) this "nexus" test would be much more broad (I know, hard to imagine, right?).   I'll be interested to see if the Court grants this petition tomorrow, as yet another preview to how they will handle future Commerce Clause issues. 

[jmhfeuille-blog]

Test Me

So, I've added a page to the blog.  It is a little link the left, titled: "Ask me a question." 

One reason I want to do this is because I want this blog to be a discussion. Maybe if I open it up for questions from readers about current constitutional issues, all my wildest dreams for this blog will be fulfilled. (Don't worry, I'm not that naive) 

However, I probably won't be able to answer all questions.  So, I apologize in advance if I don't get to yours. Please feel free to ask about cases you've seen on the news, or the interwebs, or just constitutional issues that interest you. I will do my best to respond in a timely manner.

Hopefully, this will allow you to ask about issues that you might find more interesting than the garbage I have been focused on.