Friday, June 29, 2012

Oh, The Plurality! More on the ACA Opinion

The beauty of SCOTUS rulings is that, sometimes, various Justices can take divergent paths and arrive at the same decision. The ACA opinion is one of those rulings. 

Justice Ginsburg (full disclosure: I am a bit of a Ruth Bader Fanboyberg) decides to begin with a dissertation on why Chief Justice Roberts is wrong about the commerce clause. After a brief preamble, she drops this: 

THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it. . . . It is a reading that should not have staying power.
This is a woman who knows how to craft a sentence. <3

In plain English: Remember when we let children work in textile mills? Or when labor organizers clashed with the police and we whitewashed it? That's my stuff. She cites to this case. She's the one who herds precedent, I am just pointing out that she's describing Roberts' view as antiquated. 

Justice Ginsburg does a great job of laying out the societal issue: people are getting hosed by the current system, free riders increase the cost for everyone, many can't or won't get insurance due to cost, etc. She drops the "in sum" bomb:

In sum, Congress passed the minimum coverage provision as a key component of the ACA to address an economic and social problem that has plagued the Nation for decades: the large number of U. S. residents who are unable or unwilling to obtain health insurance. Whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it. Reviewed with appropriate deference, the minimum coverage provision, allied to the guaranteed-issue and community-rating prescriptions, should survive measurement under the Commerce and Necessary and Proper Clauses.
 This is just the conclusion of her summary of her argument. It's also a tribute. SCOTUS opinions tend to be the Tenacious D songs of jurisprudence in this regard. 

Justice Ginsburg notes that the Framers intended the Constitution to be a living document that changes with the times. This concept is not inconsistent with, well, anything. So written: 

The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the Constitution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,”Letter from James Madison to N. P. Trist (Dec. 1831), in 9Writings of James Madison 471, 475 (G. Hunt ed. 1910).“Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,] as they may happen;and as these are illimitable in their nature, it is impossible safely to limit that capacity.” The Federalist No. 34, pp. 205, 206 (John Harvard Library ed. 2009). See also McCulloch, 4 Wheat., at 415 (The Necessary and Proper Clause is lodged “in a constitution[,] intended to endurefor ages to come, and consequently, to be adapted to the various crises of human affairs.”).
This argument lays the foundation for allowing the ACA under Congress' Commerce Clause powers. Since the Constitution was initially framed, we've had some serious developments in our society (e.g. the ability to provide health care to the many). We need to check that before wrecking that, as it were. 

Justice Ginsburg makes a spirited and correct argument that health care is a big fucking deal. She also describes how free riders on the health care system increase costs for everyone. This truth allows her to get in line with Roberts, who wants to approve the ACA under the "taxation power" spin. 

RBG also takes issue with Robert's analysis of the commerce clause issue.:

This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or doctor’s office each year. See supra, at 5. Nearly 90% will within five years. An uninsured’s consumption of health care is thus quite proximate: It is virtually certain to occur in the next five years and more likely than not to occur this year.
The argument is a solid counter to Robert's "you can't regulate inactivity" argument. The majority opinion makes a reference to someone who purchased a car two years ago -- that person is not in the car purchasing market by virtue of past conduct. However, RBG makes a valid distinction here -- car purchases are planned, many health care needs are not. It's the nature of health care. People don't schedule heart attacks and breast cancer. 

Justice Ginsburg points out that the majority's opinion does not give enough deference to Congress, in particular in its Commerce Clause analysis. Generally, the SCOUTS has applied the "rational basis" test for evaluating whether an act of Congress over-reaches its power under the Commerce Clause. She points out that Congress had a rational basis for concluding that uninsured people affect interstate commerce. People get sick or injured while out of town, they cross state lines for medical care, etc. Free riders cost everyone more money as costs increase to cover those who can't/don't pay. 

The act of not having insurance is just as significant as having it. In Justice Ginsburg's eyes, not buying insurance is an economic choice that Congress can regulate:

Given these far-reaching effectson interstate commerce, the decision to forgo insurance ishardly inconsequential or equivalent to “doing nothing," it is, instead, an economic decision Congress has the authority to address under the Commerce Clause.See supra, at 14–16. See also Wickard, 317 U. S., at 128 (“It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.") 

 RBG then proceeds to directly indict Robert's logic in truly awesome fashion:

Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to “compe[l] individuals to become active in commerce by purchasing a product.”  
THE CHIEF JUSTICE’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation. See infra, at 23–27. But even assuming, for the moment, that Congress lacks authority under the Commerce Clause to “compel individuals not engaged in commerce to purchase an unwanted product,” ante, at 18, such a limitation would be inapplicable here. Everyone will, at some point, consume health-care products and services. See supra, at 3. Thus, if THE CHIEF JUSTICE is correct that an insurancepurchase requirement can be applied only to those who“actively” consume health care, the minimum coverage provision fits the bill.
 I'm going to call this the inevitability argument. It's a great counter to Robert's car analogy. There are people who will never own a car. They live in a major city, use public transit, etc. EVERYONE is going to use health care services at some point in time. You're born -- health care services are likely involved. You die -- there's probably a doctor in there too. Somewhere in between, you will likely see a doctor. It makes sense, and is easier to justify than the taxation power argument. 

She also accuses Roberts of legislating from the bench because it its Congress's job to determine the market it seeks to regulate, not the Court's. Given this, she argues that isolating the health care market to this very instant is beyond the Court's power. Congress can look to long-term market effects and regulate those as well. 

RBG also dismantles the "broccoli theory" in splendid fashion:

The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged topay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price. 

 That's right. Health care is not like cars or broccoli. This is what I call exposing a disingenuous argument. She also attacks Roberts for asserting that the Commerce Clause only allows the regulation of things that already exist. As Justice Ginsburg aptly points out, both the interstate health care and health insurance markets existed before the ACA was enacted. 

To be honest, the entire concurring opinion is full of great material. I won't touch on her arguments about the necessary and proper clause in this post, there's too much awesome there. Moreover, you don't need to touch on necessary and proper after reading her dismantling of Justice Robert's ruling on the Commerce Clause. 

When all is said and done, Justice Ginsburg's concurring opinion is a great example of why it is important to read every portion of a SCOTUS ruling. While not binding case law, her read of the Commerce Clause is highly persuasive. The opinion also points out some of the dangerous precedents that may be set by the logic of Chief Justice Roberts. 


Thursday, June 28, 2012

Breaking Down The ACA Decision Into English

So, the SCOTUS decided that the Affordable Care Act is Constitutional. Before we panic and start learning to speak socialist, let's take a look at the guts of the Court's decision. Full text of the opinion is here.

Part One: Really, this is part two of the opinion. The true part one deals with whether the case could have been filed in the first place. I'll get to the fancy bit of that section here in my Part One, which really correlates to part two of the opinion. 
The Court needs to figure out just HOW Congress has the power to force people to buy insurance or pay a penalty. First, it examines the Commerce Clause. The Commerce Clause gives Congress the power to regulate commerce in the U.S. This power has been construed pretty broadly over the years. After rambling on about past precedent regarding the extent of the Congress' power under the Commerce Clause, the Court arrives at this:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and --  under the Government's theory -- empower Congress to make those decisions for him. 
So there you have it. This isn't regulating commerce because we aren't regulating existing activity, we are regulating existing inactivity. 

The Court also did not buy the Government's argument that the "necessary and proper" clause allowed Congress to pass the mandate via the Commerce Clause. Basically, most cases discussing Congress' power to do what is necessary and proper focus on existing, valid laws, not new powers that Congress seeks to assert. Effectively, the SCOTUS kicks out the necessary and proper argument as a cart before horse problem. 

So how does the mandate survive? Apparently, it survives based on Congress' taxation powers. Here's where it gets a bit silly. In order to have jurisdiction over the case, the individual mandate cannot be a tax. This is because taxation cases are not ripe for a lawsuit until after the tax is applied to an individual. In order to hear the case the SCOTUS decided that this was more of a penalty than a tax, and thus the Anti-Injunction Act did not apply to the Court's jurisdiction over the case. 

Here's how the Court explains it:

It is of course true that the Act describes the payment as a "penalty," not a "tax." But while that label is fatal to the Anti-Injunction Act, . . . it does not determine whether the payment may be viewed as an exercise of Congress's taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.
The Court goes on to explain that just because something is called a tax doesn't make it a tax and vice versa. It points to licensing laws that require a payment of money -- these are not taxes as we traditionally see them, but they fall within the taxation powers of Congress. This is why I'm glad I have a marginal background in lit crit and deconstruction. 

The Court also explained how taxes designed to inspire or inhibit conduct were nothing new. There's several pages of examples. Most importantly, the Court further explained why the language used in the Act didn't control what the individual mandate was:

The joint dissenters argue that we cannot uphold§5000A as a tax because Congress did not “frame” it assuch. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck downbecause Congress used the wrong labels. An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing thresholdneed not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.
Basically, look at the overall context, not the specific word. 

Now on to part three of the opinion in my Part Two:

The SCOTUS upheld the Medicare provisions of the Act, but with a limiting reading of the provision. The Act's Medicare provision will require States to expand Medicare coverage. In exchange, the States get more funding. States that elect to ignore the Act will not receive the funding. Generally, Congress can condition the dispensation of funds to the States based upon conduct. This is why the legal drinking age is 21 years of age -- Congress tied federal road money to the drinking age. Since Congress was powerless to regulate the drinking age in each state, it decided to regulate via crappy roads. Congress won, and Louisiana got rid of the 18 year old drinking age that made my first year at Alabama so awesome. 

But I digress. The SCOTUS termed these Spending Clause powers as being similar to a contract between Congress and the States. There is already a contract between Congress and the States regarding Medicaid. The Act seeks to modify that contract with new terms, or to impose a second contract altogether. 

The SCOTUS took the stance that the Medicaid provisions of the Act could only condition the provision of new funds to the States -- it could not revoke existing Medicaid funds from the States. In this manner, the SCOTUS was able to uphold the Act while limiting it to prevent Congress from coercing the legislatures of the several States. The SCOTUS also looked to the function of the Medicaid changes and determined that they significantly altered Medicaid as a whole. This provision is not a minor change to Medicaid, but a sweeping change. Therefore, it must be limited to only the new funds offered, not existing Medicaid funding. 

So there you have it. The ACA decision. Maybe later I will cover the other drafted opinions -- the Roberts opinion was sufficiently wordy for a Thursday morning. 

Monday, June 25, 2012

Carreon v. Inman: First Amended Complaint (Because You Cannot Contain This Much Stupid)

It looks like there's already a first amended complaint in the Carreon v. Inman case. H/t to Popehat for the find. 

For those who are unaware of how all of this litigation nonsense works, parties to a lawsuit can amend their pleadings. In general, courts are pretty liberal about allowing parties to amend their complaint, answer, etc. You might want to add an additional cause of action to a complaint. Maybe you want to add an additional defendant. Maybe, for instance, you want to gin up standing to sue someone by adding the state's attorney general as a necessary party. 

If you're Mr. Carreon in this instance, then you just amended your complaint to include California Attorney General Kamala Harris as a "party to be joined if feasible." No, seriously. Go click that link above. I'll wait. 

Ok. It would appear that our intrepid interweb attorney realized that his attempt to establish standing to sue based on a California statute governing paid charitable fundraisers was a bit thin. He reads the statute he is seeking to enforce and realizes that he needs the Attorney General involved in the case to establish his standing to sue. So now here we are. 

Mr. Carreon has also added more facts to this complaint. I'm not going to side-by-side the two documents, but here are some of the derpier bits that I believe to be new. 

12. Inman is an expert in the use of Internet mass-communication tools, and has mastered these tools as instruments of commercial profit, harnessing the global reach and scope of Internet communications to reach vast audiences with messages that, as alleged infra, are unsuitable vehicles for marketing charitable campaigns. 
Holy cow, I don't want to see what happens once The Oatmeal is a fully armed and operational battle station. I have already purchased one of his comics as a poster; Carreon is clearly on to something here. 

My next favorite bit was also discussed over at Lowering the Bar. It appears that Mr. Carreon believes that it's impossible to say, "Fuck off," in a kind or philanthropic manner. This would normally be a great segue into some witty banter between two friends over beers as they think of ways to say, "Fuck off," in a kind manner, a philanthropic manner, or a combination of the two. 

Thankfully, Mr. Carreon is here to keep things on the boring with this chunk of Debbie Downer legalese:

43. Inman's insult is much more than a profane witticism. It is a frank declaration of his wrongful, uncharitable motive. It is a non-sequitur that underscores his intent to create a toxic hybrid of malicious intent and "philanthropy." There is no such thing as a "philanthropic, kind-spirited way" to say "F*ck off." There is only one way to say it, and one purpose for saying it, and that purpose cannot be lawfully associated with tax-exempt charitable solicitation in the State of California.
You may be wondering, what would a toxic hybrid of malicious intent and philanthropy be called? Certainly, it cannot possibly exist because Mr. Carreon has so yawnfully explained why it can't. However, to name the unknowable, I'm going with "Fucklanthropy." You'll thank me later. 

Other additions to the complaint include BREAKING NEWS items that have clearly come to light since Mr. Carreon sued, among others, THE AMERICAN CANCER SOCIETY:

44. . . . [I redacted a bunch of crap from the original complaint.] Venality triumphed over discretion and decency, however, and Indiegogo did nothing to alter the tone or manner of the campaign. Indeed, as news of Plaintiff's efforts to "block charity" hit the Internet, the negative spin went wild, and Plaintiff was excoriated as the latest Internet victim to self-immolate due to his lack of understanding of "the ways of the Internet." 
You cannot make this up. Apparently, this Internet attorney (he claims to be one on his website) doesn't know that people on the Internet are all about the serious business of taking a doucher to task. What's more important to note about this that Inman, Indiegogo, and the other defendants have no ability to control the actions of the ENTIRE INTERNET. Carreon chose to file his lawsuit. The lawsuit is public record. It is newsworthy. That people decided Carreon was a dick for filing the lawsuit is beyond the control of those he is suing. 

In tort law, we often talk about "proximate cause." For instance, if I cut someone's brake line, I am the proximate cause of the car accident that will result when that person's car cannot stop. I am therefore the proximate cause of the injuries of all harmed. If I had not tampered with brakes, the accident wouldn't have happened. In this situation, Carreon is the proximate cause of his own hassle. He filed the lawsuit. People on the Internet got mad. There are utter shitheels on the Internet. Do the math. 

Also, please leave this Carreon guy alone. Although his bloviating is high comedy for most of us, at some point, people should stop poking the brain-damaged bear in the zoo. Giving him ammo for this "lawsuit" is bad form. 

The baseless assertions keep on coming. In this passage, Mr. Carreon claims that Inman's fundraising will end in some kind of Mad Max scenario. Who runs Bartertown?

If Inman's deceptive methods, sanctioned by Indiegogo and tolerated by the Charitable Organization Defendants, are given the green light simply because they get the fund raising job done, they will corrupt an already vulnerable industry. All manner of unregistered fundraisers will adopt Inman's tactics. Needy charitable organizations will first be backed into fundraising campaigns without their knowledge, then bribed into winking at whatever bizarre, malevolent campaign will fill their treasury with spite donations. In place of legitimate charitable fundraising, unscrupulous, unregistered fundraisers like Inman will prosper as kingmakers who call the tune, inducing charitable organizations to dance to whatever grotesque melody they choose to play. Inman's methods of fundraising will make true generosity an antiquated, outmoded reason for giving, and donating to satisfy spiteful motives, fueled by venomous Internet postings, will supplant the wholesome impulse to benefit others. 
The end of charity is nigh! Spite donations will roam the streets in gangs, waiting to prey upon unsuspecting charitable organizations! SOYLENT GREEN IS PEOPLE!

This stuff writes itself. Carreon also adds in some paragraphs about how the porn sites his attackers registered him for could cause harm to his reputation, etc. Again, don't do this stuff to the guy. More ammo = bad, m'kay?

It just goes to show you: don't be a jackass on the Internet. Sooner or later, it will bite you in the ass. Carreon's biggest mistake was running a crap website designed to steal the content of others. Oh, and sending the letter to Inman. And suing the ACS. Never mind, I guess this guy is just chock full of fail.