The Supreme Court recently heard oral arguments in the case of Missouri v. McNeeley, No. 11-1425. At issue was whether or not the police must obtain a warrant prior to drawing blood from a person suspected of driving while under the influence of alcohol. McNeeley was pulled over for speeding and failed the field sobriety test. After refusing the breathalyzer, McNeeley was taken to the hospital where after refusing to allow his blood to be drawn, had the blood forcibly taken from his body. The trial court threw out the evidence from the blood test as being an unreasonable seizure in violation of the Fourth Amendment. The state appealed to the US Supreme Court asking that it declare that there is no need to obtain a warrant to draw blood. (Current law permits the drawing of blood without consent and without a warrant when alcohol is suspected after an accident with injuries). The state is asking for an extension of this rule to apply even when there is not an “exigent circumstance” such as an injury accident.

The state’s request is an example of everything that is wrong with our government today. I think reasonable people would agree that sticking a needle into your arm and forcibly withdrawing blood to be evaluated with the results being used against you in a criminal trial is not only an unreasonable seizure but would also violated your Fifth Amendment right against self-incrimination. When you read dystopian novels popular in the early 1900s and again today, the cause the dystopianism is always government intrusion on individual’s rights.[i]

Although I do not agree that there are any circumstances which should permit the government to forcibly take your bodily fluids to be used against you in a criminal prosecution without first obtaining a warrant, I am especially concerned that a state would feel comfortable asking to be able to conduct this type of activity without regard to the Constitution. As our rights continue to erode through the unchecked increase in government intrusion into our lives, we have to ask ourselves, when will enough be enough?



[i] E.g., Iron Hall, Brave New World, Fahrenheit 451, 1984 and more recently, The Handmaid’s Tale, Orxy & Crake, and the Hunger Games.

In Armour v. City of Indianapolis, (No. 11-161 6-4-12) the Supreme Court again decided to ignore the Constitution and side with the government on very unsteady ground. At issue was whether the City had to pay back to certain homeowners money it had collected for a sewer assessment that it was later able to obtain funding for (through bonds). While the plaintiffs in this case paid the entire assessment (some $9,000 up front), the other homeowners who elected to pay the assessment over time had the amounts remaining due forgiven. While this would seem to violate the Equal Protection Clause with the government favoring one group of citizens over another, the court disagreed. Because the right at issue was economic rather than a “fundamental” right, the court applied the “rational basis” test. In other words, did the City have a rational basis to make the distinction between the homeowners who paid the assessment up front and the homeowners who chose to pay it over time. The City’s “rational basis” was that it was inconvenient to issue the refunds.
To his credit, Chief Justice Roberts indicated in his dissent that: “The Equal Protection Clause does not provide that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws, unless it’s too much of a bother.’” Only Scalia and Alito joined the dissent, leaving this the current law of the land as stated by a majority of 6. Your economic rights can be trampled on by government. One can only dream of the time when the American public wakes up and starts electing libertarian officials to dismantle the non-working nonsensical unconstitutional parts of our government and demand that the Constitution be followed in a logical consistent way and that the rights given to individuals in the Constitution are resuscitated.

Employers Beware: What you need to know before checking the applicants Facebook page
As tempting as it may be to check an applicant’s Facebook profile as part of the screening process, there are some legal issues you should be aware of prior to doing so. First of all, a Facebook profile includes more than just work-related information. It could contain information about a person’s age, religion, race, national origin, sexual orientation, and associations. Making yourself privy to such information prior to hiring someone puts you at risk for a discrimination claim. If you wouldn’t ask for this information during an interview, you probably shouldn’t be collecting it from a social media site. If you are only checking Facebook profiles of those applicants who have profiles, you are treating your applicants differently. The overabundance of personal information on one candidate may cloud your judgment where it is not an issue with the candidate who does not have a profile. Facebook recently indicated that asking for a user’s password is a violation of Facebook’s Statement of Rights and Responsibilities. There are also several U.S. states that are considering legislation that would ban this practice.
With the proliferation of social media sites such as blogs, Facebook, and LinkedIn, and their increasing prominence in the business realm, it is not surprising that employers have begun to access the information posted on these sites in the course of conducting background checks on prospective employees. It is not a good practice, however.

Before the advent of the Internet, when a person passed away or became incapacitated, family members or the executor of the Will would located the decedent’s personal and financial information in folders other tangible records found throughout the home. Photographs, letters, account information, etc. were all located physically in print. Today, you are more likely to find personal effects on the decedent’s social media accounts, like Facebook. Does your family know your password? In most cases, they do not.

While Facebook has terms of use for these situations, they may not accomplish what the decedent’s desires. As a result, people are now writing what is being called a Social Media Will which outlines the ownership (or deletion) of online information about them after their death. This can also be accomplished through your regular will or trust. As more and more people move their personal and financial information online protecting digital assets is becoming increasingly important. It is not only important for your family – we’ve all heard of cases where a “friend suggestion” of a deceased person pops up reopening the hurt, but also the risk of personal financial information to be obtained by hackers – this is especially likely when the information is no longer being monitored because of the owner’s death.

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.

Earlier this year, an Akron Ohio Mom (Kelly William-Bolar) was ordered to jail for allegedly “falsifying documents” that permitted her daughters to attend a school in the next district over. Not fined, jailed! She used her father’s address for residency purposes because she did not want her daughters attending a presumably dangerous school which, according to a CNN report, had “only met 4 of the 26 standards of the Ohio Department of Education Report Card.” She wanted her daughters to receive a quality education in a safe environment, and knew that would not happen in the school located closest to her home.

There are so many thing wrong with this decision, I don’t know where to begin.

1. According to the school’s superintendent, Brain Poe, “If you’re paying taxes on a home here… those dollars need to stay home with our students.” What if you are not paying taxes on a home, what if you live in an apartment in his district? Does that mean apartment dwellers are ineligible to attend his schools? Does it mean that if you do not have school-age children you do not have to pay the portion fo the property taxes attributable to the schools in your district? Seriously Poe?

2. The Mom was alleged to have “defrauded” the school district out of $30,000. If the schools are equal throughout the state, why would this one cost $30,000 more than the one that her daughters were to attend by law? This doesn’t make any sense.

3. Why are school districts who claim to be so desperate for money hiring private investigators to torment private citizens? Is there no right of privacy left in the United States? This school, a governmental agency, was spying on a private citizen. Didn’t the Judge in this case even remember that this Mom has a Constitutional right to privacy and certainly not to be spied on by the government. Doesn’t the School District have liability here for a warrantless search and privacy violations?  

4. The Supreme Court of Ohio has declared the way public schools there are financed is unconstitutional FOUR times. Does this case not prove that schools in poor neighborhoods are NOT equal to those in wealthier districts? How is this equal treatment under the law?

5. Finally, I can’t believe how obtuse this Judge was. First the Honorable Patricia Cosgrove indicates that SHE must follow the law as written and send this woman to jail for violating the law and then sends a letter to the State Department of Education indicating that William-Bolar’s teaching certificate should not be pulled. In other words, don’t uphold the law like I did. She actually has the nerve to tell another branch of government to break the law because of extenuating circumstances. If Cosgrove had been thinking when she handed down the sentence, she would have followed the intent of the law and taking into consideration the equities of the case.

Did she not see the irony of sending that letter? Worse yet, did she forget the Constitutional rights of this Mom?

On March 15, 2011, the FTC reported that it entered into the first settlement agreement under the new FTC Guidelines prohibiting fake reviews. Essentially, the Guidelines provide that when someone posts a positive review of a service or product and that person is either connected to the seller receives some sort of compensation for the positive review, the “material connection” between the reviewer and the seller of the product or service must be disclosed. In this case, Legacy Learning, a company which provides guitar lessons on DVDs, had an affiliate review program which compensated bloggers and other online publishers for posting positive reviews about its program. The company agreed to pay a $250,000 penalty for its actions.

I wonder if the FTC is monitoring amazon.com. I was just reading recently about an author who was artificially inflating his sales ratings by buying his own book and posting fake positive reviews. Not only is this morally reprehensible, but it also violates the “new” FTC Guidelines which went into effect in December 2009. I wonder how many businesses engage in this conduct – posting fake reviews on sites like angieslist.com and urbanspoon.com?