Mike Kueber's Blog

June 30, 2012

The Supreme Court kills the Stolen Valor Act

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Although the Supreme Court’s ruling on ObamaCare has dominated the news this past week, the Court also handed down another interesting (and disappointing) decision on the Stolen Valor Act, which makes it a crime for individuals to lie about their military-medal achievements.  Unlike its ruling that approved ObamaCare, the Court’s opinion on the Stolen Valor Act held that the Act violated free speech and thus was unconstitutional.  Thus, individuals in America have the right to falsely claim that they have earned a Congressional Medal of Honor.  You can’t know how much I appreciate having that right. 

In the majority opinion, Justice Anthony M. Kennedy said the Act “would endorse government authority to compile a list of subjects about which false statements are punishable.”  And what would be wrong with that? 

Under current law, content-based restrictions on free speech have been permitted only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called “fighting words,” child pornography, fraud, true threats, and speech presenting some grave and imminent threat the Government has the power to prevent.  Justice Kennedy concluded that the harm from medal-related lies was not sufficiently significant to be included in this list.  Based on the Court’s apparent intention with its ObamaCare decision to find a way to uphold a federal law, it seems the same intention did not apply to the Stolen Valor Act. 

Personally, I disagree with the decision because I think the harm caused by medal boasters is significant.  Not only does it mislead the listener, but it also diminishes the honor of those who earned their medals.

 

 

July 15, 2011

A quintessential TEA Party supporter

Yesterday I visited with a good friend in McAllen who, although she hates being labeled or characterized (let alone being caricatured), could be described as a quintessential TEA Party supporter – i.e., a person who is a fiscal and social conservative, but who is more assertive  over fiscal issues than she is over social issues.  As with many TEA Party partisans, she prefers describing herself as a constitutional conservative.

In the course of an extensive conversation and some follow-up reflection, my friend has persuaded me that her self-description is more accurate than mine.  A strong constitutional conservative like my McAllen friend believes that the federal government (a) has grown beyond the limits set forth in the Constitution, and (b) needs to be significantly reduced in scope; whereas, a strong fiscal conservative like me is (a) less concerned with the size of the federal government, and (b) more concerned about government taking on too much debt.

Although I am more of a fiscal conservative than a constitutional conservative, I agree with their argument that the Supreme Court has allowed the federal government to grow in size beyond what the Constitution allows.  My excuse for being slow to jump on their bandwagon was that I was brainwashed in law school into thinking that the Constitution allowed the federal government to do just about anything it wants.  Although that was the law at the time of my law-school education, laws evolve over time.  Just as the Supreme Court may one day overturn Roe v. Wade, it may also one day declare that the federal government has grown too big for its constitutional britches.

July 3, 2011

Term limits for the U.S. Supreme Court

The U.S. Constitution provides that federal judges receive lifetime appointments.  Through the years, this provision has been deemed appropriate and necessary to prevent politics from improperly influencing judicial decisions.  Of late, however, the Court has been afflicted with justices who come early and stay late, resulting in a sclerotic bench.  Because Presidents want to maximize their influence for many years into the future, they limit their search to middle-aged judges who are expected to stay on the bench into their 70s and 80s.

Ruth Bader Ginsberg, who is currently 78-years old, has indicated that she plans to stay on the Court for several more years.  This is perplexing liberals, who are beginning to fear that President Obama will not win a second term and that conservative
Mitt Romney will ultimately replace Ginsberg with a conservative jurist who will reverse Roe v. Wade.

Politics aside, I think America would be better served if Supreme Court justices served a single ten-year term (like the FBI Director) and then moved onto something else in life.  A single term would continue to enable them to serve without undue political influence and it would remove the incentive for Presidents to focus on young prospective justices and would prevent justices like Ginsberg from hanging around too long.

This goes on my list of useful changes to the Constitution.

June 29, 2011

The U.S. Constitution – does it still matter?

The title of this posting was a question posed on the cover of Time magazine this week.  Fortunately, only the first few paragraphs are available on-line.

No, that was not a typo.  I said “fortunately” because the article was so poorly written that its author could have been a college kid submitting a
term paper.  The author was, in fact, Richard Stengel, the managing editor of Time magazine, which probably explains how such a sophomoric article found its way into Time magazine.  Either his editors were too cowed to do their job or Stengel haughtily rejected their help.

I am blogging about the article because it raised an important topic – i.e., the relevance of the U.S. Constitution toward four transcendent issues in America:

  1. Making war as applied to Libya
  2. Defaulting on the national debt
  3. Interstate commerce as applied to ObamaCare
  4. Birthright citizenship

Making war

The first issue revolves around the War Powers Resolution.  The Resolution, which became law in 1973, was designed to prevent another Vietnam and end the string of undeclared wars since WWII.  It allows the president to initiate military action without a declaration of war, but requires the military action to cease if Congress doesn’t give its approval within 60 days.  This seems like a very reasonable accommodation of (a) modern exigencies and (b) the Constitutional provision, “The Congress shall have power… to declare war.

The Resolution was passed despite a presidential veto, and every president has asserted that it is unconstitutional because it infringes on his constitutional power to “be commander in chief.”  But President Obama is the first president to engage in an extended military action (Libya) without obtaining Congressional approval.

Stengel’s take on this issue – he mildly chides President Obama for ignoring the following position staked out by candidate Obama: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  And he lamely excuses Obama because, “since 1973, Presidents have at best paid lip service to the resolution.”  The excuse is lame because, although previous presidents have claimed that the resolution was unconstitutional, they nevertheless complied with it, including George W. Bush in Iraq and Afghanistan.

Stengel complains that our Founders created this problem by drafting provisions that are conflicting.  That is hogwash.  If this issue ever gets
before the Supreme Court, they will certainly be able to reconcile the Congress’s power to declare war with the President’s power to be the commander in chief.  Without explanation, Stengel concludes this section by saying, “this matter will not end up in the Supreme Court.  Congress does not really want the responsibility of deciding whether to send troops to places like Libya.  It just doesn’t want the President to do so in a way that makes it look superfluous and impotent.

Washington Post columnist Charles Krauthammer recently addressed the application of the War Powers Resolution to the military action in Libya.  Unlike Stengel, he provided an explanation for why the courts haven’t resolved this issue – “Moreover, the judiciary, which under our
system is the ultimate arbiter of constitutionality, has consistently refused to adjudicate this ‘political question’ (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches
.”

Like Krauthammer, I think the War Powers Resolution was a reasonable reconciliation of the constitutional provisions.  It reminds me of the Roe v. Wade decision on abortion, in which the Supreme Court balanced the privacy interests of women against the public interest in protecting the life of a fetus.  That is the type of public-policy decision, however, that should be made by legislatures, not the courts.  I wish President Obama would do what all previous Presidents have done – respect the law.

Debt ceiling

My conservative drinking friend thinks that the Founding Fathers had no idea that Congress would become such a profligate spender and, if they had, they would have included a balanced-budget provision in the Constitution.  In fact, however, the Founding Fathers knew that America had incurred huge debt during the Revolutionary War and they specifically approved the practice in Article 1, Section 8 of the Constitution – “The Congress shall have power … to borrow money on the credit of the United States.”

Regarding the possibility of default because on Congress’s failure to raise the debt limit, Stengel makes a suggestion that I haven’t previously heard – i.e., that the Constitution doesn’t allow government to default on its debt.  His suggestion is based on Section 4 of the 14th Amendment, which reads, “The validity of the public debt of the United States… shall not be questioned.”  The Amendment, which was passed shortly after the Civil War, was intended to affirm the Union’s Civil War debt while repudiating all Confederate debt.

According to Stengel, if Congress refuses to increase the debt ceiling, President Obama would be constitutionally authorized to take extraordinary measures such as ordering “the Treasury to produce binding debt instruments … sell assets, furlough workers, freeze checks.”  I have never heard of this possible scenario, and during President Obama’s press conference today, he did not refer to it when he was asked about the possibility of default.  Let’s hope that this doomsday scenario never occurs.

Interstate commerce

The U.S. Constitution authorizes Congress the power to regulate interstate commerce.  During law school, I learned that the Supreme Court has interpreted this provision extremely liberally, once holding that the provision authorizes the federal government to regulate a farmer who is growing grain for his own consumption.  In recent years, however, there has been push-back by constitutional conservatives against this expansive interpretation on the basis of the 10th Amendment, which says that all powers not expressly granted to Congress shall be reserved to the states, and with respect to ObamaCare, several federal judges have bought this argument.

Stengel’s legal defense of ObamaCare includes several glaring faults:

  1. He fails to mention the 10th Amendment.
  2. He notes that government can compel us to buy car insurance, but fails to recognize the important distinction that car insurance is compelled under a state’s police powers, not the federal government’s power over interstate commerce.
  3. He says it’s silly to argue that health care – which accounts for 17% of the U.S. economy – doesn’t involve interstate commerce, but fails to recognize that conservatives are arguing that the individual mandate is unconstitutional, not the entire law.

Birthright citizenship

The principle objective of the post-Civil War 14th Amendment was to grant citizenship to former slaves.  It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”  The problem with that wording is that it creates so-called birthright citizenship, i.e., if you are physically born in
the United States, you’re a citizen.  The United States is one of the few countries in the world that grants birthright citizenship.

Birthright citizenship has become extremely problematic in America because there are millions of illegal immigrants who are having babies, so-called “anchor babies.”  The anchor babies are American citizens entitled to a vast array of welfare and can eventually, as adults, sponsor their parents into the United States.  Until then, however, their parents are entitled to little more than deportation.

Stengel concedes that Congress was not thinking about illegal immigration when it drafted the 14th Amendment, but he gives short shrift to the argument from constitutional conservatives that the Amendment doesn’t apply to illegal immigrants because of the term, “subject to the jurisdiction thereof.”  Stengel haughtily asserts without explanation that “this argument doesn’t hold up under scrutiny.”  I have reviewed the judicial precedent on this issue, and there is nothing definitive.

Stengel also concedes that birthright citizenship makes no sense, yet he asserts, “There are liberals and conservatives alike who oppose changing
birthright citizenship
It’s seen as a core American value.”  That is hogwash.  I don’t know of a single well-known conservative who endorses birthright citizenship.  If there were, why didn’t Stengel name the person?

Ultimately Stengel concludes that resolving the birthright-citizenship issue will not resolve the bigger issue of illegal immigration.  For that, he recommends a carrot-and-stick approach.  The carrot is to make immigration easier and to give a path to citizenship to undocumented young people who go to college or join the military.  The stick is workplace enforcement and better enforcement.

Stengel concludes his article by quoting Judge Learned Hand, one of the greatest non-Supreme Court jurists in American history, who said the following in a speech during WWII:

  • “I often wonder whether we do not rest our hopes too much on our constitutions, upon laws and upon courts.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

Stengel rephrased this sentiment by warning, “The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution.  The Constitution serves the nation; the nation does not serve the Constitution.  That’s what the framers would say.”

Sounds like Stengel is not a constitutional conservative.  Rather, he sees the Constitution as a living document that “is more a guardrail for our society than a traffic cop…. a st of principles, not a code of laws.”  I think the framers wanted the Constitution to live and grow through amendments, not through the liberal thinking of arrogant jurists.

If the Constitution is construed to provide citizenship to children born to illegal immigrants, the Constitution should be amended.  If the Constitution is construed to empower the federal government to force individuals to buy health insurance, the Constitution should be amended.  If the Supreme Court determines that the War Powers Resolution is unconstitutional, then it should reconcile the Congressional power to declare war with the Presidential power as commander in chief.  And finally, if Congress fails to raise the debt ceiling, the Supreme Court will decide whether the President has extraordinary powers to avoid default.

The U.S. Constitution is not as dysfunctional as liberals like to think.

May 30, 2011

E-Verify on steroids

Once again the U.S. Supreme Court has rendered a decision that is based on its traditional ideological division.  On one side are the conservatives, who can be depended on to rule as any card-carrying Republican would.  One the other side are the liberals, who can be depended on to rule like any card-carrying Democrat would.  You might think that in a honest world, judicial ideology wouldn’t parallel political ideology, but that is not the world we live in.

Late last week, the U.S. Supreme Court decided in Chamber of Commerce v. Whiting that an Arizona law requiring employers to use E-Verify when hiring an employee was not pre-empted by federal law.    The four true-blue conservative judges – Roberts, Thomas, Scalia, and Alito – voted in favor, as did the moderate conservative – Kennedy.  The three dyed-in-the-wool liberals – Breyer, Ginsberg, and Sotomayor voted against, while liberal Kagan did not participate for some unspecified reason.

The federal laws in this decision are relatively simple.  In 1952 Congress enacted the Immigration and Nationality Act (INA), which established a “comprehensive federal statutory scheme for regulation of immigration and naturalization” and set “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.”

Following the enactment of the INA, several states enacted companion laws that levied fines on employers who hired unauthorized aliens.  In 1976, the U.S. Supreme Court ruled in De Canas v. Bica that these laws were not pre-empted by the INA:

  • We recognized that the “power to regulate immigration is unquestionably . . . a federal power.”  At the same time, however, we noted that the “States possess broad authority under their police
    powers to regulate the employment relationship to protect workers within the State,” that “prohibiting the knowing employment . . . of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of the State’s police power,” and that the Federal Government had “at best” expressed “a peripheral concern with [the] employment
    of illegal entrants” at that point in time.  As a result, we declined to hold that a state law assessing civil fines for the employment of unauthorized aliens was preempted by federal immigration law.

In 1986, Congress expressed its unhappiness with the De Canas decision by enacting the Immigration Reform and Control Act (IRCA).  Although the IRCA declared it unlawful for an employer to hire an unauthorized alien and required employers to review an employee’s (passport, green card, driver’s license, social-security card, etc.), it also restricted the ability of individual states to combat employment of unauthorized workers. The Act expressly preempted:

  • “…any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”

Thus, the IRCA expressly preempted laws like the one that upheld of unauthorized workers like the one was upheld in De Canas.

In 1996 Congress attempted to improve IRCA’s employment-verification system by enacting the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  The IIRIRA created an experimental program called E-Verify, which is a federal internet-based system that allows an employer to verify an employee’s work-authorization status.”  The IIRIRA prohibited the federal government from requiring employers to use E-Verify, but did not say anything about state requirements.

Several states subsequently passed laws (such as Arizona’s The Legal Arizona Worker’s Act of 2007) that, on the basis of the IRCA licensing exception, revoke the business licenses of any entity that fails to use E-Verify to confirm whether an employee is legally authorized to work in America.

The Arizona Act was the subject of the Chamber of Commerce v. Whiting decision, with the conservatives holding that the meaning of “licensing” was sufficiently broad to provide safe harbor to the Arizona law, whereas the liberals unsuccessfully argued that the spirit of the IIRIRA indicated that the federal government did not intend to allow E-Verify to be used in such a draconian way.

As usual, political ideology seems more important than judicial ideology to our current crop of Supreme Court justices.

 

 

 

May 27, 2011

Legislating from the bench

Ever since the Civil Rights movement in the 50s, conservatives have decried courts that “legislate from the bench.”  Although there is no generally accepted definition of the term, one blogger has succinctly described it as “a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.”

The landmark abortion decision – Roe v. Wade – is generally considered a prime example of legislating from the bench (sometimes called judicial activism).  Instead of allowing the will of the people to be expressed by their elected representatives, the U.S. Supreme Court imposed a one-size-fits-all solution on America.  This power play by the Supreme Court did severe damage to its credibility and legitimacy, but the Court eventually recovered to its current high standing in public opinion.

In recent years there has not been a lot of criticism of judicial activism.  Ironically, the most publicized charge was made by liberals (who generally thrive on judicial activism) when the U.S. Supreme Court favored George W. Bush over Al Gore in the 2000 election contest.  Can you imagine if that result had been
reversed?

This past week, a complaint about legislating from the bench came from a surprising source.  The complaint was prompted by a decision from the U.S. Supreme Court holding that the state of California must reduce the population of its prisons because the current overcrowding violated the Eighth Amendment’s prohibition of cruel & unusual punishment.

The complaint was from none other than Justice Scalia, who in a dissenting opinion wrote that the majority opinion was an example of the problem of courts’ overstepping their constitutional authority and institutional expertise in issuing “structural injunctions” in “institutional-reform litigation” rather than addressing legal violations one by one.

This complaint brings to mind a criticism that I made several months ago about the decision from the U.S. Supreme Court that required Texas public schools to educate illegal immigrants – Plyler v. Doe.  The rationale provided by the Court in Plyler decision sounded more like a legislature than a court:

  • “Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants – numbering in the millions – within our borders.  This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.  The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”

This language from the Court clearly suggests that its motivation is to ameliorate the consequences of a dysfunctional federal government and its ineffectual immigration policy.  The Court in Plyler went on to explain why the Texas law fails to further a substantial goal of the state:

  • “First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants.  While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem.  There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc.  The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that ‘charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,’ at least when compared with the alternative of   prohibiting the employment of illegal aliens.”
  • “Second, while it is apparent that a State may ‘not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,’ appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State.  As the District Court in No. 80-1934 noted, the State failed to offer any ‘credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education.’  And, after reviewing the State’s school financing mechanism, the District Court in No. 80-1538 concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools.  Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion.  In terms of educational cost and need, however, undocumented children are ‘basically indistinguishable’ from legally resident alien children.”

Both dot points above contain examples of a court substituting its judgment for the judgment of legislators.  The most jarring were the assertions that “few if any illegal immigrants come to this country… to avail themselves of free education” and that “charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens.”

With the benefit of hindsight, these judicial assertions seem ludicrous and laughingly simplistic.  Jobs are not the only magnet for illegal immigrants.  America also offers free education and medical care, reduced crime, and freedom.  It takes a lot of chutzpah for the Supreme Court to criticize legislators for ineffectively controlling immigration, while brazenly shooting-down a good-faith effort by Texas legislators to address the problem.

A recent article in the SA Express-News reveals the mess that the Plyler v. Doe decision exacerbated.  The well-written article by Lynn Brezosky, which is titled “University’s student leader in immigration
limbo,” describes a college student in south Texas, Jose Arturo Guerra, who came to America a few years ago and is now facing deportation.

The Plyler court may have been trying to help the “shadow population” of illegal immigrants and trying to avoid the creation of a “permanent underclass,” but they failed miserably.  The high school student
whom they required Brownsville to educate was unable to attend an academic competition in Austin because of the danger of immigration checkpoints along the way.  Once educated in high school,
the individual was not eligible for federal college loans, and once graduated, is not eligible for legitimate employment.

The Express-News article concludes with three thought-provoking quotes:

  1. UT-Brownsville President Juliet Garcia: “The plight of these bright, young students that are
    prepared to become productive contributors to our society has become a human
    tragedy.” 
  2. Roy Beck, executive director of the immigration-reduction group Numbers USA, said he sympathized with Guerra but felt “you can’t create policy based on individuals.”  Guerra, he said, “will be a tremendous asset to the Mexican people.  He’s bright, he’s been allowed to get his education in the United States, he’s benefited from the taxpayer education and high school.”
  3. Begging to differ is Guerra himself, who thinks he can “make a difference” in the United States.  “I don’t see why they would educate people here in the United States and spend like thousands and
    thousands of dollars and then send just them back.” 

All of this goes to show that legislating is messy, and America would be better served if the Supreme Court stuck to judging.

May 13, 2011

Class-action arbitrations

John Bogle’s book “Don’t Count on It” laments three sectors of endemic waste and inefficiency in the American economy – financial services, government, and law.  Instead of building a bigger pie, these sectors merely distribute the pie, and they consume a huge percentage of our resources in doing that.  Bogle’s book focuses on the financial sector, but there was an interesting editorial in the NY Times today concerning the legal sector.  The editorial was titled “Gutting Class Action” and was a response to a recent Supreme Court decision styled “AT&T Mobility v. Concepcion.”   

The Supreme Court decision is so important because it touches on two of the hottest issues in American jurisprudence – class-action suits and arbitration.  Class-action suits are a hot issue because, like medical-malpractice suits, they have become highly effective for plaintiffs and even more so for their lawyers.  The natural response of the business interests that have to pay these awards is to tweak the rules to limit the effectiveness of the suits. 

Arbitration is a hot issue because business interests have decided that they have a much better chance of a favorable resolution if a dispute is decided by a professional arbitrator instead of a jury of typical Americans.  Not surprisingly juries seem to have more sympathy for a consumer than a business, whereas professional arbitrators are more business-oriented.  Through mandatory arbitration agreements, businesses have the ability to pre-select the adjudicatory mechanism that most favors them.

Consumer contracts are not the only place that business interests insert mandatory arbitration provisions.  Many large employers routinely require all employees to agree to mandatory arbitration of employment disputes.  Thus, if employees believe they are being discriminated against because of age, sex, or race, they are required to submit the dispute to a professional arbitrator instead of a jury.

The AT&T v. Concepcion decision involves a factual background that is perfect for a class-action lawsuit.  AT&T charged the Concepcions about $30 sales tax on the retail value of phones that were provided “free” under their service contract.  The Concepcions wanted to sue AT&T for false advertising and fraud, but what lawyer would take a case for $30?  The standard legal route around this financial hurdle is to bring a class-action suit on behalf of all the other customers who were charged the sales tax, but AT&T had blocked this route by drafting its cellphone contract to provide for arbitration of all disputes and to prohibit classwide arbitration.

California law generally prohibits an arbitration provision like AT&T’s because they find it unconscionable.  Specifically, according to the AT&T syllabus, “the California Supreme Court held that class waivers in consumer-arbitration agreements are unconscionable if the agreement is in an adhesion contract, disputes between the parties are likely to involve small amounts of damages, and the party with inferior bargaining power alleges a deliberate scheme to defraud.”

In AT&T v. Concepcion, a federal court and the Ninth Circuit Court of Appeals relied on that CA law to throw out AT&T’s provision, but the United States Supreme Court reversed those courts and held that the Federal Arbitration Act pre-empted the state law, and thus the mandatory arbitration provision should be enforced.

The NY Times editorial focused on negative practical effect of the Supreme Court decision, which was rendered 5-4 with the same five stalwart conservatives creating a majority.  The decision means that AT&T will be able to get away with practices like the $30 charge because no one will have the economic incentive to challenge them. 

Another example of this occurred a few weeks ago when I was refunded a large percentage of an early-termination fee that I had been charged after I had inadvertently terminated my plan a few days before my contract expired.  Phone companies typically didn’t pro-rate that fee until my company lost a class-action suit on the issue, and now I think they all pro-rate. 

The NY Times editorial points out that Federal Arbitration Act (FAA) was enacted in 1925, at a time when arbitration was relatively unsophisticated.  It also points out that there is currently proposed legislation in Congress to prohibit all mandatory arbitration provisions.  Such a prohibition is certainly appropriate for employment disputes.  To obtain justice, an employee must have access to a jury.  Although mandatory arbitration might have a place with some commercial disputes, Congress should at a minimum modify the FAA so that it doesn’t pre-empt laws like California’s on unconscionability. 

Like a democracy, courts and juries may be messy and inefficient, but they are essential to the American way of life.

February 24, 2011

Citizens United – the Supreme Court decision

In a recent blog entry about the anti-union movement in Wisconsin, I made a glib comment about the merits of a Supreme Court decision – Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010) – that I hadn’t read.  Fortunately, an anonymous reader called me to task for that glibness, and as penance I decided to read the decision. 

Citizens United (Citizens) is a non-profit corporation with an annual budget of $12 million.  Although most of its money comes from individuals, a small portion of it comes from for-profit corporations.  In January 2008, Citizens released an anti-Clinton movie titled Hillary: The Movie.  Because of Citizens’ concerns that the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited it from marketing the movie (and paying cable companies to make it available to free), Citizens sued the FEC to have the BCRA declared a violation of its constitutional right to free speech.

The BCRA, which was enacted in 2002, is also known as the McCain-Feingold law.  Among other things, it prohibited corporations and unions from making expenditures for speech defined as “electioneering communication” – “any broadcast, cable, or satellite communication… that refers to a clearly identified candidate for Federal office,” and is made within 30 days of a primary or election.  This limitation on electioneering communications was upheld in a 2003 Supreme Court decision (McConnell v. FEC) that relied on a 1990 Supreme Court decision, Austin v. Michigan Chamber of CommerceAustin had held that political speech may be banned based on the speaker’s corporate identity. In 2010 Citizens asked the Court to reconsider the Austin decision, and it did, with five justices ultimately agreeing to reverse the decision.  “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress the speech altogether.” 

My glib comment in an earlier blog was:

  • When I campaigned for Congress, I was asked about Citizens United and I indicated that I supported it.  It makes perfect sense that political speech by rich people should be constitutionally protected, so why make a distinction for corporations?  As George Will suggested decades ago – don’t limit the speech, just require full disclosure of who is paying for the speech.  Then let the voters decide.  I realize that many think my view is impractical and Pollyannaish – that American voters aren’t capable of avoiding manipulation by slick marketing – but I believe we can rise to the occasion.

Despite the glibness of the comment, it does contain two important concepts:

  1. Why make a distinction for corporations?  According to the Citizens decision, there is no good reason to make a distinction – “Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster. [We] rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not natural persons.
  2. American voters will be duped by slick corporate ads.  The 1990 Austin decision was based on the government’s interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”  In the 2010 Citizens decision, the Supreme Court rejected that basis and declared – “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it…. When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.  This is unlawful.  The First Amendment confirms the freedom to think for ourselves.”

The majority decision for Citizens was written by Justice Kennedy and joined by Scalia, Thomas, Alito, and Roberts.  The dissent, which was written by Stevens and joined by Sotomayor, Breyer, and Ginsberg, warned that the majority decision, “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.”  It concluded by noting:

  • At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

President Obama was so upset with the decision that he referred to it unfavorably in his weekly radio address (“this ruling strikes at our democracy itself” and “I can’t think of anything more devastating to the public interest.”) and in his State of the Union address (“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”)

Well, I think our democracy and our Democrats will survive the involvement of corporations and unions in elections.  As I said in my earlier blog entry, American voters will rise to the occasion.

February 4, 2011

DUI checkpoints in Texas

I’ve always been a rebel against authority figures.  Once in high school, I was threatened with expulsion for rebelling against the school dress code.  Although I don’t smoke, I stood in solidarity with smokers opposing anti-smoking rules, first by employers and later by municipalities.  And I joined my brother Kelly’s chapter of D.A.M.M. – drunks against mad mothers.

The latest assault on our liberty by the politically correct in San Antonio – DUI checkpoints.  According to an article in the San Antonio Express-News, the city’s police chief is pushing for legislation to authorize DUI checkpoints.   

DUI checkpoints were initially challenged as an unconstitutional “seizure” under the Fourth Amendment, but the U.S. Supreme Court approved them in 1990 in Michigan State Department of Police v. Sitz.  The Court held that the legality of such a seizure must be determined by balancing three interests – “the state’s interest in preventing accidents caused by drunk drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of intrusion on an individual’s privacy caused by the checkpoints.

On each of those three points, the Court concluded:

  1. No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.”
  2. “Conversely, the weight bearing on the other scale – the measure of the intrusion on motorists stopped briefly at sobriety checkpoints – is slight.”  (Less than 45 seconds.)
  3. Approximately 1.6 percent of the drivers passing through the checkpoint were arrested for alcohol impairment….  By way of comparison… illegal aliens were found in only 0.12 percent of the vehicles passing through [a San Clemente checkpoint set up to detect illegal aliens]….  We sustained its constitutionality. We see no justification for a different conclusion here.”

Despite the Sitz decision in 1990, the Texas Court of Criminal Appeals in 1994 held that DUI checkpoints were invalid in Texas unless the legislature established procedures and guidelines.  

According to an article in CBSDFW.com, Texas is one of only twelve states that don’t authorize DUI checkpoints.  A similar article in USA Today reported:

  • “Legislators in Texas, which has one of the nation’s highest proportions of drunken-driving deaths and is one of 10 states that ban sobriety checkpoints, say they will introduce a bill next year to allow checkpoints. The measure has failed in the past because of resistance from ‘drunks, people who make money off drunks and civil libertarians,’ says state Rep. Todd Smith, a Euless Republican.  Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Washington, Wisconsin and Wyoming also ban checkpoints, MADD says.”   

You could almost hear Representative Smith sneer when he said, “civil libertarian,” like that is a bad person.  Smith is the Texas representative who has proposed the legislation that San Antonio’s police chief is endorsing – House Bill 439.

House Bill 439 authorizes “sobriety checkpoints” only in the 18 counties with more than 250,000 (that should help secure votes from rural legislators) and only in locations with a history of alcohol-related driving violations.  The bill prohibits the officer from asking for a driver’s license or proof of insurance or asking the operator to leave the vehicle.  The bill requires that (a) a video and audio recording be made of each “encounter,” (b) the intrusion be minimized (no more than three minutes), and (c) the inquiry is “reasonably related to determining whether the operator is intoxicated.”

Unfortunately, I was unable to learn how an officer determines intoxication.  I suppose it is the smell of alcohol, slurred speech, or an admission of drinking.  Thus, if you have been drinking, it would be a good idea to roll down your windows before you face the officer and don’t admit that you have been drinking, even if the checkpoint is near a bar at 2am. 

Last summer, I encountered a similar situation during my annual pilgrimage to North Dakota.  After closing down my hometown’s only bar at 2am, I was driving home to the family farm when a highway patrolman stopped me for rolling through the city’s only stop sign.  He asked if I had been drinking, and instead of lying, I told him that I had.  (I did lie when he asked me how many.)  That response earned me a walk back to the officer’s car and a field sobriety test while sitting in his car.  Fortunately, he concluded that I was sober enough to drive and sent me on my way.

I don’t intend to diminish America’s problem with drunk drivers.  And I fully support the effort by the National Transportation Safety Board to eliminate “hard-core” drunken drivers, which they define as drivers with blood-alcohol concentration of 0.15% or repeat offenders within a 10-year period.  But their 11 recommendations to accomplish this objective belie their contention that they are focused on “hard-core” drunks: 

  1. Statewide sobriety checkpoints;
  2. Programs to identify individuals driving on a suspended or revoked license;
  3. Defining a repeat offender as anyone arrested on a DWI offense within 10 years of a prior DWI arrest;*
  4. Imposing tougher penalties, assessment and treatment for DWI offenders arrested with a blood alcohol content level of 0.15 or higher;*
  5. Using administrative license revocation;*
  6. Prohibiting plea bargaining;
  7. Prohibiting diversion programs;
  8. Establishing court-based sanction programs;*
  9. Using vehicle sanctions including ignition interlock devices and vehicle impoundment;
  10. Implementing alternatives to jail confinement such as home detention with electronic monitoring; and
  11. Requiring DWI offenders to maintain a zero blood alcohol content level.

The state of Texas is criticized for having adopted only four of the eleven items on the list (I have placed an * after each of the four items), but it has adopted the only two that are directed at hard-core drunks – #3 and #4.

I have a drinking friend who complains that they keep increasing the penalties and lowering the DUI standard to a point that potentially includes social drinkers.  We remember when driving with an open container was legal in Texas (pre-9/1/01). 

Social drinking is one of life’s pleasures for millions of Americans, and that is something worth defending against unnecessary government encroachment.  Go after the drunks, but leave us social drinkers alone.

January 11, 2011

A rush to judgment in Tucson

Remember the rush to judgment following the Fort Hood shooting?  No?  Actually I remember the school-marmish media scolding us for wondering whether an Arab-American Muslim opening fire on a gathering of Army personnel might have been politically motivated.

Revealingly, the media has taken a different tack with the Tucson shooting of Congressperson Gabrielle Giffords by Jared Loughner.  Instead of waiting for facts to reveal any political motivation, the mainstream media has quickly assumed that Giffords was shot because conservative opponents had denounced her liberal positions on ObamaCare and illegal immigration.  According to this argument, the vitriolic, inflammatory rhetoric by Rush Limbaugh, Bill O’Reilly, and Sarah Palin created an environment that prompted Loughner to do his dastardly deed. 

Thus far, there has been no evidence suggesting that this shooting was politically motivated, and in the absence of any political motivation, it is shameful for the media to be discussing whether Limbaugh, O’Reilly, Palin et al. have any responsibility. 

Instead of focusing on right-wing vitriol and the absence of gun control in Arizona, the media should be examining something more relevant to the Tucson shooting – involuntary commitment.  

Yesterday, I was talking to a NY friend about the Tucson shooting, and he mentioned that back in the olden days, people like Jared Laughner would be locked up in a “state hospital.”  That comment prompted me to remember the olden days in my home state of North Dakota.  Yes, we had a state hospital in Jamestown, and everyone knew what it meant to be sent to Jamestown.  Somehow, the concept of locking up mentally-ill people has disappeared, and I decided to find out why.

A check of history reveals that the process of involuntary commitment was controlled by the states until 1975 (just as I was graduating from college).  At that time, the U.S. Supreme Court decided the states didn’t know what they were doing and needed guidance from the Court. 

  • In O’Connor v. Donaldson (1975), the Court required that individuals must be exhibiting behavior that is a danger to themselves or others in order to be held, the hold must be for evaluation only, and a court order must be received for more than very short-term treatment or hospitalization (typically no longer than 72 hours). 
  • In Addington v. Texas (1979), the Court raised the bar for involuntary commitment for treatment by raising the burden of proof required to commit persons from the usual civil burden of proof of “preponderance of the evidence” to the higher standard of “clear and convincing” evidence.

As a result of the direction from the U.S. Supreme Court and lower courts, states have developed various statutory processes for involuntarily committing an individual.  These processes typically include legal representation and periodic reviews. 

In response to the Tucson shooting, some bloggers have suggested streamlining the process for involuntary commitment.  For example, a blog in The New Republic suggests (a) improved reporting of problematic people like Loughner and (b) a lower standard for committing an individual.  Of course, the range of options available to a state is limited by the direction already provided by the courts.

The Giffords shooting may lead to improved government policy, but not in the area gun control or civil discourse.  Rather, the most important lesson to be learned has to do with improving the involuntary-commitment process.

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