As I discussed in an earlier blog post, the Health Care Law is not constitutional. Our Constitution provides limits on what the federal government can legislate. The enumerated powers are found in Article 1, Section 8. These are the only areas within which the federal government can legislate. Unfortunately, we are in the situation we are in today (with massive amounts of unconstitutional federal regulations) because the Supreme Court declared the Social Security Act constitutional in three (3) decisions passed down on May 24, 1937. In coming to the conclusion that the Social Security Act was constitutional, it did a complete about-face from over 100 years of rulings. Prior to these 3 decisions on Social Security (Helvering v. Davis, Stewart Machine v. Davis, and Carmichael v. Southern Coal and Coke), the Supreme Court routinely struck down legislation which went beyond the powers granted to the federal government in Article 1, Section 8 of the Constitution. The Court rejected much of the New Deal and repeatedly held that the federal government did not have the authority under the Constitution to set up social welfare programs, or tax individuals in an effort to get them to comply with a legislative desire. The pre-May 24, 1937 decisions were consistent the intent of the Founding Fathers. The wording of the Constitution makes it clear that the federal government does not have the power to intervene in economic or state matters and the reservation clause (Tenth Amendment) reinforces this limit on the power of the federal government – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Why did the court change its mind on May 24, 1937? When Roosevelt didn’t get his way concerning his planned expansion of federal power (the “New Deal”) he decided the Supreme Court was too old to make decisions. To relieve them of this burden, he proposed that new Justices should be added for every current Justice over the age of 70. Although this legislation was not passed, it clearly signaled to the Supreme Court (or at least a majority on the Supreme Court) that it had better get in line and support the President’s desire to expand federal power and stamp its approval on the New Deal.
When you read the 3 decisions that came out on that day, you see how ridiculous the arguments are. The Court concluded that the Social Security Act was constitutional because of societal conditions at the time (i.e., the Great Depression). In other words, because the States were unable to handle the issue of the societal ills of the unemployed elderly, the federal government had to step in and provide welfare to them. This is the first time we hear that the Constitution does allow the federal government to spend for the “general welfare” and that the discretion to determine where to draw the line between general welfare and particular welfare rested with Congress, unless the choice is arbitrary or capricious (Helvering). What was formerly an introductory phrase to the list of actual areas in which the federal government could pass laws, was now a new area in itself: general welfare. It is clear from the written opinion in Helvering that Cardoza had to bend over backwards to reach this conclusion. He spends an inordinate amount of time discussing the Great Depression and characterizing unemployment not as a “particular” ill, but a “general” one. In addition, with respect to taxing as a way to get individuals and states to bend to the will of the federal government, the Court indicates that just because the excise taxes were expected to coerce the states into some type of action does not make the tax invalid. The court seems to imply that if the means (taxing in order to coerce the states to adopt conforming regulations) accomplishes a national end (general welfare), then it must be valid (Stewart Machine).
It is my fervent hope that our current Supreme Court will correct this long line of holdings by explaining how the actual wording of Article 1, Section 8 and the reservation clause (contained in the 10th Amendment) provide a limit on federal government. In addition, they have an opportunity to reclaim the true meaning of the word “commerce” in the Constitution as Judge Roger Vinson of Federal District Court in Pensacola, Florida did in his very well-worded decision striking down the Health Care Law.
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The District Court in Florida recently declared the new Health Care Law unconstitutional. Of course, this decision will still need to be appealed to the Court of Appeals and the Supreme Court, but the Judge carefully outlined the reasons for his declaration in the written opinion. Although I would have listed a few more reasons, I was impressed with some of the rationales he listed. I especially liked the fact that he went back to the actual language in the Constitution as it was intended when written. I know that is not the popular way to interpret the Constitution, but it does make sense. To summarize: Interstate commerce means interstate trade. Trade means the movement of goods in exchange for money. Insurance does in no way fall within this category. Insurance is a service, not a physical product which can travel in a truck on I-35 between Texas and Illinois. Basically, despite all of the reasons you may have heard about why this law is unconstitutional, the best one is the simplest one: it is not authorized under Section 1 Article 8 – the section which grants Congress the power to pass laws. The powers in this Article were enumerated in order to LIMIT federal government. As you can imagine this was a huge concern to our founding fathers.
There has been some talk of repealing the Health Care Act, but I hope this doesn’t happen. I would like to see the Supreme Court rule on this issue. If they do interpret the Constitution the way it was intended, they will find that Congress did not have the authority to pass this Act and it would open the door for States to bring other lawsuits concerning federal laws outside the purview of Article 1, Section 8, of the Constitution. I can envision California taking on the establishment of the DEA, for example, or the passing of laws that criminalized the possession of marijuana and made it a federal offense under the Commerce Clause. (Remember, police power is reserved to the States so the only way these laws could be passed and these agencies established was through a tenuous connection to interstate commerce. Of course, the commerce clause wasn’t intended to criminalize trade. Well, at least the sale of marijuana would fall under the definition of trade. The problem is that on the one hand Congress wants to force citizens to buy the services of for-profit corporations and on the other wants to prevent citizens from purchasing a plant. Neither type of law is authorized in the Constitution. Of course, our founding fathers were not averse to marijuana – it is believed that George Washington grew hemp on his farm.)
The bottom line is that the federal government has gotten out of control of the people. It is no longer acting as a government for the people, but rather as a government for more government. Congress is passing laws in areas beyond what the Constitution permits. This is not a right v. left issue or a liberal v. conservative issue. It is simply a matter of whether or not the States are going to permit the Federal government to continue down this road. It is up to us as citizens to elect state officials who will stand up to federal encroachment. The best way to get our country back and our economy out of the gutter is to vote. Vote in your state elections – they really matter.
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The Supreme Court has decided in American Needle v. the NFL, No. 08-661, that the National Football League Properties (NFLP) which was formed to develop, license, and market fan gear was not a single entity for antitrust purposes. In other words, the 32 teams could be violating anti-trust laws by licensing fan gear solely to Reebok in restraint of trade, which could have the effect of dampening competition. This case was brought by a small hat manufacturer whose license to sell football hats was not renewed when the NFLP gave Reebok the business for all 32 teams. This case was sent back to the trial court for further argument. As I wrote previously, Drew Brees argued very strongly against the NFLP being considered a single entity because of the potential for the NFLP getting around antitrust laws with respect to free agency, not just in the selling of hats. This seems to be the right decision as 32 teams which in fact compete with each other not just on the field, but also for fans, could carry a lot of clout in awarding contracts. By giving one license out to manufacturer fan gear, they prevented other manufacturers from competing with Reebok and keeping the prices down for all fans. Obviously, the NFLP has an interest in monitoring the licenses, as they receive royalties from these manufacturers, but it serves no purpose to limit the manufacturing and distribution to one entity.
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Earlier this year I commented on the case of Buono v. Salazar, SC 08-427 4-28-10 (the WWI Memorial case). It seemed from questions at oral argument that only Alito and Scalia were for reversing this case. However, the Court in a 5-4 split did recently reverse the lower court’s decision and allowed the monument to remain. It indicated that the lower court erred in invalidating the statute which allowed the transfer of land so that the monument would be transferred to private property. The Justices’ positions were as follows: Kennedy, J., wrote the majority opinion. Roberts filed a concurring opinion. Alito filed a concurring opinion in part. Scalia filed his own concurring opinion which Thomas joined. Stevens filed a dissenting opinion. Ginsburg and Sotomayor joined Stevens, and Breyer filed his own dissenting opinion. I was very interested in seeing how Sotomayor would rule, but since she simply joined in the dissent, the only thing we can be sure of is that she felt the establishment clause had been violated.
The Court ruled that the “[p]lacement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.” In addition, the cross has served as a memorial for almost 70 years. The court indicated that the statute should not have been invalidated because it was a legitimate solution to the problem of taking down a monument dedicated to those who died in WWI. The statute simply allowed the monument to remain by permitting a land transfer to the Veterans’ of Foreign Wars who initially installed the monument back in 1934.
In his dissent, Stevens essentially stated that the cross was a purely “sectarian message” and that the monument violated the establishment clause and the statute transferring it to private property was an “unambiguous endorsement of a sectarian message.” Given that 6 out of 9 Justices wrote their own opinions, it seems that this issue has not been clearly decided, but since they were only ruling on a statute, rather than all religious themed memorials, it does not seem that this case will have much impact on future issues.
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In the Supreme Court case of Renco V. Lett, No. 09-338 (decided May 3, 2010) the Court held that no double jeopardy occurred when the defendant was retried on a murder charge after his first trial resulted in a hung jury. Despite the short amount of time the jury spent deliberating (4 hours), seven questions were sent to the Judge. It seems that the defendant was trying to indicate that because the Judge did not force the jury to go back and deliberate until they reached a verdict, the benefit of the doubt should go to him. In other words, he believed that the jury would have dismissed the case or decided on a guilty verdict for a lesser charge if they had been forced to deliberate more. The flaw here is that he didn’t object to the hung jury at the first trial, but at the second – where the jury found him guilty in less than 4 hours. It seems the Supreme Court was correct in affirming the Michigan State Supreme Court’s determination that the defendant’s rights were not violated and double jeopardy had not occurred.
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In the Supreme Court case of Merck v. Reynolds, No. 08-905 (U.S.), the court affirmed the lower court’s holding that the statute of limitations did not begin running when questions about the side effects of Vioxx came to light. The plaintiffs, who owned Merck stock, sued Merck, the maker of Vioxx, for failing to properly inform or, alternatively, concealing from its investors the serious risks associated with the use of Vioxx. Apparently it doubled the risk for heart attacks, strokes, and death in those who took it for more than 18 months which Merck allegedly knew back in 2001. (Vioxx was withdrawn from the market by Merck in 2004).
The Supreme Court ruled that in general the 2-year statute of limitations for securities fraud does begin to run until the plaintiff actually discovers or reasonably should have discovered that the defendant had committed fraud. This ruling will permit the Merck investors to continue their securities fraud suit in federal court. It is a significant rule given all of the recent allegations of fraud in the private sector. It essentially prevents companies from running out the statute of limitations by concealing its fraud after problems begin to go public. This will allow investor suits to be brought in situations where the actual fraud does not come out until after problems with the subject product or service are made public. It would be unfair to force plaintiffs to file at the first sign of trouble, especially without having access to all of the facts that the defendant corporation has.
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In the case of US v. Stevens which was decided this week by the Supreme Court, a federal statute banning the making or sale of animal cruelty videos was declared unconstitutional. The statute at issue was intended to criminalize “crush videos” (which I won’t describe here but depict horrendous animal cruelty). While there are some exceptions to the right of free speech – most notably the one for obscenity – the Court indicated that animal cruelty should not be an additional exception. In other words, the statute attempted to criminalize speech which is protected under the First Amendment.
Despite the free speech analysis in the decision, I think the bigger issue is government encroachment on individual’s rights through the passage of federal criminal laws. Under the Bill of Rights, the federal government does not have police power; it was reserved to the states. Thus, the federal government does not have Constitutional authority to make and enforce criminal laws against its own citizens (except in a few very limited circumstances – such as regarding the military). While the result is right in US v. Stevens; it is for 10th Amendment reasons as opposed to 1st Amendment reasons. I do believe that videos depicting animal cruelty are obscene and the making and distribution thereof should be criminalized, but this should be done at the state level.
This 10th Amendment issue is going to come up more and more frequently now that people are starting to question the extent of federal legislation in this country. I was hoping this opinion would have given us a clue as to how this Court will rule when a 10th Amendment argument is made to it. I imagine it will come up with respect to the federal marijuana laws and the Health Care Reform Bill. I for one will be looking at the wording of future Supreme Court decisions to see if I can determine how they will resolve this issue.
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It is South by Southwest® here in Austin this week. While most of the students are away, the town is full of music, films and interactive events. In searching for something with a legal angle that I could write about, I came across a potential legal dispute involving the movie “MacGruber” of SNL fame, which premieres tonight at the Paramount. The dispute stems from a cease and desist letter sent by the attorneys of the creator of the original MacGyver TV series. Apparently, MacGyver is also being made into a movie. The letter did not stop the premier, but raises the issue of copyright infringement.
Essentially, before a suit for infringement can be brought in federal court, the work must be registered at the Copyright Office. The courts will examine whether the alleged infringing work is “substantially similar” to the original work, and if the look and feel, among other things, of the original work was improperly copied. Although it is unlikely that anyone would think that MacGruber was created independently, it was clearly based on the MacGyver character, there is an exception to infringement called “fair use.” One type of fair use is parody. A parody is the copying of a work in a satirical and humorous manner. I don’t think anyone will claim that MacGruber is anything but a copying of MacGyver in a satirical and humorous manner, but not all parodies are automatically fair use.
The most prominent case involving this issue is Campbell v. Acuff-Rose Music which was decided by the Supreme Court in 1994. Essentially, 2LiveCrew recorded a parody of Roy Orbison’s “Oh, Pretty Woman,” and like the creator of MacGyver, the owner of the Pretty Woman copyright felt that the parody was an infringement. Although the lower court held that the commercial nature of the 2Live Crew version of the song automatically excluded it from fair use, the Supreme Court ruled that because the work was so transformative (different from the original), the work would not impact the commercial value of the original work as they operated in completely different markets (one of the factors in fair use).
What does this mean for MacGruber? I would predict that a court would find MacGruber to be transformative parody and serving a different market than MacGyver and thus a fair use. I wish them a successful premiere.
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Recently the Supreme Court issued its opinion in Maryland v. Shatzer which created new law. Although the law requires the police to inform those being questioned that they have the right to have an attorney present during questioning, the issue in this case was whether an arrestee’s invocation of the right expires when there is a break in custody. Previous law indicates that police cannot re-question a suspect after they have invoked their right, even after they have spoken with their attorney, unless the suspect approaches them. In the Shatzer case, the suspect invoked his Miranda rights in 2003 after a police officer approached him in jail on another offense. In 2006, a different officer approached him while still in jail and this time he waived his rights.
The lower court in this case had held that because of the “break in custody” between 2003 and 2006, the police were able to re-question the suspect. The Maryland Court of Appeals reversed indicating that because the suspect remained in jail, there was no break in custody. The Supreme Court felt that the previous rule applied to “investigative custody” not any other type of custody. What is interesting about this case is that the Court adopted a 14-day rule which means that the police can now wait 14 days before attempting to re-question a witness who is no longer in custody. This is quite different from the previous rule indicating that once invoked, Miranda rights remain intact until the suspect approaches the police.
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In a 5-4 decision the United States Supreme Court has made bribing political candidates legal. Locally, when a developer is denied approval to build another subdivision, now corporate headquarters can turn around and fund the election of someone who will vote for it. Nationally, the awarding of federal contracts to campaign supporters will no longer go on under the table with risks of ethics violations and possible criminal charges, now it can be done out in the open.
The case at issue is Citizens United v. the Federal Election Commission, No. 08-205. This case involves a negative movie about Hilary Clinton that was released during the primaries. Citizens United, who produced the film, lost a case against the FEC which had prevented them from showing the film on a cable TV channel and from advertising the movie on TV. The lower court found that the McCain-Feingold campaign finance laws did apply to the movie. Although the case went to the Supreme Court on these narrow grounds, mainly whether the campaign finance laws were meant to apply to documentary-style movies, the Court took the unusual step of holding a second set of arguments to address whether two previous campaign finance law cases should be overruled. Although this case is sad for many reasons, I am especially sad that former-Justice Sandra Day O’Connor was not able to guide the court to a more palatable result. Essentially, the majority threw out campaign finance laws and decided that the federal government can no longer ban corporations from spending money on political campaigns.
Justice Kennedy stated in the majority opinion: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in free speech.” Hold on, Emily Litella, since when is a corporation an “association of citizens.” The last time I checked, they were state-chartered entities organized for the purpose of operating a business, making a profit, and sheltering the organizers of the business from personal liability. I don’t think anyone would mistake one for an “associations of citizens.” This decision is a travesty on a number of levels, but as I discussed with my classes today, corporations are not humans. Thomas Jefferson stated: “A bill of rights is what the people are entitled to against every government on earth, . . .” These rights are human rights, essential to our type of government. They should not be cheapened by their extension to corporations. (I do understand that corporations have been given “rights” over the years by the Supreme Court, starting with Santa Clara County v. Southern Pacific Railroad Company. I just don’t agree with that line of decisions. And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.)
This case is not just about campaign finance laws; it is about the power that corporations have amassed over the years. Do you really want Xe Services, LLC, f/k/a Blackwater, choosing your next President? When my students ask me, why doesn’t anybody do anything about this stuff? I tell them, we are like frogs in a pot of water that has slowly been turned to boiling. The changes happen so gradually, that we don’t know we are cooked until it is too late. Let’s notice this change. Let’s do something about it.
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