Wednesday, November 9, 2011

Court Update: Obamacare, Indecent Broadcasting and GPS tracking privacy

 As our readers already know, one of the primary purposes of the ACLP is to analyze and bring attention to important legal decisions of the U.S. courts, especially those at the federal and appellate level dealing with matters of constitutional import.  The last week has raised various cases on national issues worthy of comment. 

  The decision by the District of Columbia Court of Appeals upholding Obamacare in the 'Seven Sky' case

  With impeccable timing coming immediately before the High Court "officially" decides on whether to review the Patient Protection and Affordable Care Act of 2010 aka Obamcare, (the Supreme Court will decide tomorrow which cases of the lower courts it will review, and even more importantly, on what basis), yet another decision by the Federal Court of Appeals has found Obamacare constitutional, (making it 2-1 for Obamacare in the Court of Appeals with one circuit court of appeals, the Fourth, declining to decide the case on the merits due to its perceived lack of jurisdiction). 

  The latest decision by the D.C. Circuit came yesterday in the case of "Susan 'Seven Sky' v. Eric Holder," District of Columbia Court of Appeals No. 1:10-cv-00950 and was authored by federal Judge Lawrence Silberman, a Reagan appointee.  The ruling upheld a decision by a lower court dismissing a challenge to the controversial law's "individual mandate" as an excessively broad and unconstitutional violation of Congress' power under the "Commerce Clause" of the U.S. Constitution, and was the second time a lawsuit regarding Obamacare has resulted in a split from the expected outcome based upon the political affiliation of the justices involved, (once in striking down the law and once, here, upholding it. NOTE:  As an aside it might be helpful to note this frankly is how judicial appointees are supposed to function rather than simply as another of the 'political branches' of the U.S. government which otherwise might be tempted to yield to special interests and public opinion in reaching decisions; indeed, it is the reason the Founding Fathers wisely established so called "Art. 3" judges as lifetime appointments, although undoubtedly this is sometimes abused).

  The ruling of Judge Silberman, which was joined by federal judge Harry Edwards, a President Carter appointee to the federal bench, held that the powers of the government under Obamacare, particularly those relating to the "individual mandate" requiring all citizens purchase health insurance or be penalized by the IRS, do not exceed the powers given the government under the "Commerce Clause" of the U.S. Constitution.  (For excellent and more detailed legal analysis of the decision and precedents underlying it see here and here).

  As above alluded, it also illustrates the tendency of this controversial law to cross political lines and join strange bedfellows, (as previously illustrated by a decision in the Eleventh Circuit, which also failed to hew to the usual political lines of demarcation in American politics with a Democrat-appointed judge there joining a Republican-appointed judge in ruling Obamacare unconstitutional, see here).  Most saliently, the ruling highlights not only the necessity of the U.S. Supreme Court's resolution of this landmark legislation on which we have expressed our opinion previously, (see here), but the difficulty in resolving the thorny questions of constitutional law which the "Patient Protection and Affordable Care Act," as it's officially called, raises.

  The basis for the majority opinion in the D.C. COA Obamacare decision; A harbinger of the future?

  In its ruling the majority, tracking the prior decision by the Sixth Circuit Court of Appeals in June upholding the law, (see here), the D.C. Court of Appeals cited previous and at-the-time equally controversial rulings of the U.S. Supreme Court in the early commerce clause case arising out of the FDR Administration's 'New Deal' laws Wickard v. Filburn, as well as decisions upholding the 1960's Civil Rights Act(s). 

  However, in perhaps a harbinger of things to come, in citing the relevant "commerce case" precedents in ruling on the primary matter at issue here, the Court less than convincingly concluded regarding the individual mandate, "It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race ... or that a farmer cannot grow enough wheat to support his own family," (from decision in case "Susan 'Seven Sky' v. Holder, District of Columbia Court of Appeals No. 1:10-cv-00950, pp. 36-37, slip opinion).

  A disssent by Judge Brett Kavanaugh, a George W. Bush appointee, emphasized a perceived lack of jurisdiction based upon the view that the "penalty" for failure to comply with the individual mandate to purchase health insurance was actually a "tax," which would bar the federal courts from rendering a decision until the actual penalies under the law kick in after 2014 under the 'Anti-Injunction Act,' adding, "We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit."
  The good, the bad, and the ugly of the D.C. Circuit's beg-the-question and less-than-confident ruling

  However, as others have noted, (some of whom I cite here), there is some "good" news in the Court of Appeals decision, (if the D.C. Circuit's decision is even relevant at this point in light of the certainty that the Supreme Court must already in some fashion resolve the constitutionality of the controversial law due to the split in the views of the Sixth and Eleventh Circuits on the "individual mandate," as pointed out here).  And the "good" news is this:  Although the majority did in fact uphold the law, it was clear it did not do so on any clearly articulated legal basis, or a fervent belief in the innocuousness of the sweeping legislation and its admittedly pervasive impact on the liberty of every man, women and child in the nation (and its inherent regulation of almost any activity a citizen could do (or not do!) that could potentially impact interstate commerce in the aggregate), but at least arguably due to the court's inability to discern from constitutional writ or the court's prior precedents what precise criteria should be applied in establishing the proper limits of the commerce clause's reach.   Again, quoting from the majority decision:

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. 

SUSAN SEVEN-SKY, ALSO KNOWN AS SUSAN SEVENSKY, ET AL., APPELLANTS v. ERIC H. HOLDER, JR., ET AL., APPELLEES, District Court of Appeals decision No. 1:10-cv-00950, p. 33, slip opinion, download pdf of the full COA decision by clicking here).  
    Most alarming is the D.C. Circuit's open conclusion that the Commerce Clause allows the federal government to constitutionally require the purchase of "any product or service," (see above).

    In doing so the court clearly bought into the same sort of sweeping conclusions as the Sixth Circuit did previously that are not at all clear to us, (even if they were to the Democratic-controlled U.S. Congress at the time of passage, i.e., "Because virtually everyone will, at some point, need health services, no one is truly inactive, and the health services market is inextricably intertwined with health insurance... those who do not purchase health insurance, and instead self-insure, almost inevitably take health care services they cannot afford," Seven Sky, supra, p. 25, slip opinion).

    Our response to the "Everybody does it" argument put forward by the laws proponents and District of Columbia decision

    Again, as others in the blogosphere have aptly noted in various other ways, the "everybody does it (i.e. 'needs it' ) argument is clearly not true if a seemingly perfectly healthy person dies in his sleep at a young age of a massive and inexplicable heart attack having never used the national "health delivery system" previously, (stranger things have happened!), or a person of exceptionally good health and frugality lives his whole life having paid "cash only" for incidental visits to "fee for service" clinics for such things as minor infections, the flu, etc., and then throws himself off a cliff into a river to be eaten by crocodiles, (ending his life with an almost non-existent footprint on the "national" health care system).

   While such incidences of health care useage may be the exception and not the rule, (although we have not seen any hard data either way on the matter), and one might perhaps object, "but such isolated incidences are not the usual case and shouldn't be used to swing the debate one way or the other," our reply is that our citing such hypothetical and "isolated" examples is only necessary, and indeed, expressly justified in response to proponents of Obamacare themselves routinely including "everyone" in their contrary and just as hypothetical "everybody must significantly use the health system at some point in their life" argument.

   Indeed, it seems to us here at the ACLP that if proponents are going to use such an extremely inclusive argument which explicitly relies on the assumption-posed-as-fact that "everybody" eventually uses the health care system in such a way as to necessarily negatively impact the "commerce" of the entire nation, it is entirely legitimate for opponents of Obamacare to point out that, in fact, that is not the case (or, in other words, proponents are just plain wrong on the facts).

   One of the most interesting facets of the D.C. court's Seven Sky Obamacare ruling; The Dissent

   However, one of the most interesting features of the D.C. Circuit Obamacare decision, (other than the rejection of the "religious rights" challenge to the law, see below), is that from the perspective of legal interpretation the dissent's rationale that the "penalty" in the law is, in fact, a "tax," was the same rationale originally urged but eventually abandoned by the Obama Justice Department in defending the law in this case (a tactic they also employed before the Fourth Circuit which upheld the dismissal of a suit attacking the law partly on this basis, see here for an overview of the Fourth Circuit decision, click here to download actual decision). 

   Of course, legally speaking, it matters not that the Obama Administration, in attempting to procure political favor with the public for its plan and then, failing that, deciding to use whatever tactics were necessary in pushing the law through Congress anyway, (see here or here), repeatedly and emphatically claimed that the individual mandate-- and the penalties imposed for failing to comply therewith-- was not a tax! 

  But such an interpretation of the 'Anti-Injunction Act' could, in the absence of a concensus on how to resolve such issues by the Supreme Court, potentially be the basis on which the High Court, at least for the time being, upholds the law, (rather than immediately resolving it, as they say, "on the merits"). 

   Does the Court of Appeals Ruling increase the likelihood the Supreme Court will 'punt' on the merits?   

   From the perspective of the 26 states embroiled in litigation with the federal government over the difficult (and expensive!) implementation of this behemoth law, this could result in a very costly delay in procuring a ruling on the ultimate constitutionality of the law, (during which in the intervening time in "limbo" the states would be obliged to enforce and implement this sprawling legislation). 

   Of course, the Supreme Court knows this-- raising overall the probability that the High Court will, in fact, find a way to get beyond the "Anti-Injunction Act" argument to a substantive ruling on the merits of the constitutionality of the law itself under the Commerce Clause-- but that doesn't mean the D.C. Circuit's decison isn't still enough to suggest a potential logistical nightmare sufficient to give all states, as well as the state plaintiffs to the various challenges to the law, a painful case of political and legal indigestion in the meantime.  (Not to mention dash the hopes of states' rights advocates and libertarian interest groups of a chance for the High Court to re-examine its Commerce Clause jurisprudence with an eye to a possible "retooling" of its precedents that would reign in the power of the federal government over the states generally and breathe life into the Courts application of the 10th Amendment).

   First Amendment religious freedom arguments given short shrift in upholding trial court's dismissal

   Finally, as above noted, the D.C. Circuit upheld the dismissal of plaintiff's claims re: a violation of their rights under the Religious Freedom Restoration Act.  Since the appeals court failed to reach the significant merits of the religious rights claim and such a claim, and its arguments, may be relevant to further legal action on remand if the Supreme Court reverses the decision without reaching the merits of the law's constitutionality under the commerce clause, (an improbable but possible outcome), we address it here for the benefit of our readers in line with our .

   Such claims by the Plaintiff's-- one of which included Susan 'Seven Skye,' a native American who ostensibly adheres to traditional native American medicine and eschews modern medical treatment-- are of particular interest for the implications of not just traditional Native American practitioners but those of other minority religious faiths, (such as Jehovahs Witnesses, whose legal actions in defense of their beliefs against vaccinations almost single-handedly are responsible for the "religious exemption" now enshrined in most states' "mandatory vaccination" laws).  

   Indeed, such a scenario is particularly apropos, we think, to the discussion on Obamacare not only for the important religious freedom claims it raises under the First Amendment, but for the overlapping ground it shares with OC by virtue of the distinctly "states rights" nature of mandatory vaccination laws, (which few would argue don't squarely fall in the province of the individual states' "police powers" to regulate conduct for the health, welfare and benefit of their citizens, a power which, at least until now, has expressly been reserved to the states absent explicit constitutional grant of authority to the national government in our federal constitution of enumerated and limited powers).  And that, in essence, is the ultimate "rub" to all of this.

   No articulable legal basis on which to uphold any limits to Feds power under Commerce Clause according to D.C. Court of Appeals decision and ObamaCare proponents

   Indeed, proponents to the sweeping legislation known as "Obamacare" have yet to come up with a principled and articulable argument to defeat Obamacare's opponents' concerns that if the government can coerce citizens under the commerce clause into buying as commercial and personal a product as health insurance, and further determine the sorts of services and terms under which those health "services" are delivered, there is virtually no personal conduct or activity which the government might not next claim has an "aggregate impact" upon interstate commerce in some way which means our republican form of government based on a rule of law of enumerated and limited powers has ceased to exist

  Wickard v. Filburn: A short primer of a tortured legal case and its inevitable result

  Along those lines it is important to remember that, in the seminal 'Wickard v. Filburn' case from 1942, (which is still valid law as shown by its extensive citation by both the Sixth and D.C. Circuit decisions), the farmer in that case was forced to throw his excess wheat he grew onto the ground to rot rather than feed it to his own family on the basis that he would otherwise have to buy his family's food on the open market and thus impact in aggregate the "interstate commerce" of the national (and/or international?) wheat market! 

   It does not take a legal scholar to tell that if the government can apply the same reasoning of Wickard in regulating something so personal as health care, (which the Supreme Court has said again and again is a person's autonomous right to refuse outright if he wishes), there is nothing the federal government can't force you to buy or do.  (The oft-cited example of forcing someone to "eat their brocholli" has often been mocked as a ridiculous paper tiger by supporters of Obamacare, even as they cannot refute the logic of such concerns; From our perspective however, with the contemporary emphasis and increasing obsession of health and governmental authorities on the "health risks" and costs to society of obesity vis a vis its increased risk of heart disease, stroke, diabetes, etc. etc. already resulting in national changes to the school lunch program, laws against salt and transfat use in private restaurants in New York City and other places, and banning of soda sales in public schools, we don't think such "regulation creep" is so far fetched as proponents of Obamacare claim).

   Case Two: CBS News, the FCC and the case against public lewdness vis a vis the Superbowl 'wardrobe malfunction.'

   In other news, a divided Third U.S. Circuit Court of Appeals has thrown out the roughly half million dollar fine levied against CBS following its public broadcast during the 2004 superbowl of Janet Jackson's bare right breast during the infamous alleged "wardrobe malfunction" in a tawdry dance scene with Justin Timberlake which was viewed by millions of children during daylight hours over free airwaves. 

   The Court held that imposition of this fine was an "arbitrary and capricious" departure from a supposed "Thirty year record of non-enforcement" of "fleeting" nudity in other cases by the FCC.  (While we don't pretend to be experts in this area of the law and time fails for a searching analysis of the court's reasoning and the precedents on which it relies), we fail to see the salience of this any more than the Google TOS we all agree to in opening a google account, (ya know, something about failure to enforce any provisions of the contract do not "waive" or give up Google's rights to do so in the future?).  Of course, I suppose that the really, really smart men in robes know better, (because we all know that wearing a black robe makes one a better arbiter of such matters! ;)   However, another aspect of this long-tortured case deserves mention.

   In the procedural labrynth that has become the hallmark of this case in the years ensuing since the 2004 incident that would give even the most detailed and erudite legal watchers whiplash, perhaps the most interesting twist in this long running case is that the fine imposed in this case had previously been vacated by the Third Circuit and then re-instated after a 2009 case in which the U.S. Supreme Court upheld the FCC policy as "rational" in another appeal, resulting in the Janet Jackson case being sent back to the Third Circuit for further proceedings.  It was these "further proceedings" which resulted in the most recent decision.

   Although we have our doubts from the vague comments of the FCC following the most recent decision that it would use "all the authority at its disposal" to ensure that broadcasters serve the public interest when they use the public airwaves, (as well as the Obama Administration's more liberal stance towards such matters overall compared to the Bush 43 Administration), we urge the FCC to appeal once again to the Supreme Court so the independent ability of the FCC to enforce common decency can be upheld

  In the meantime, (as if that's not confusing enough!), the Supreme Court itself is set to rule on the overall constitutionality of the F.C.C.'s policy in another case out of New York, making at least a stay of the Third Circuit's decision reasonable.

  We hope and pray that the Supreme Court will help, and not hinder, the regulation of the culture's unmitigated assault and sexualization of our nation's youth that is unrelenting in todays' media by whatever decision they ultimately reach.

  Case three:  The Supreme Court's seeming unease with unmitigated, warrantless GPS tracking of the public

  Finally, the Supreme court, in opening arguments yesterday regarding GPS tracking of suspects' movements by the government without any court oversight whatsoever, the High Court seemed troubled at the prospect of the government affixing GPS units to privately-owned cars without first obtaining a warrant or having any probable cause that the vehicles or persons involved were actually involved in illegal activity.

   Indeed, in intense questioning regarding this practice, (which we previously reported on here), the Supreme Court seemed taken aback by the Solicitor General for the United States' assertion that the government could legally, if it so desired, even place tracking devices on the justices own private automobiles for extended periods of time without any court oversight at all under the Fourth Amendment

  Needless to say, we think it fairly safe to say that, from all appearances, the Supreme Court is not willing to go quite so far as the Obama Administration is urging it to in this "brave new world" of technology in which we live, (which is, to us, a good thing). 

  We will continue to keep you apprised of important developments in these critical areas of law which effect all our lives as citizens in the greatest nation on earth, the good ol' United States of America!  jp

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