Finally

The Supreme Court is finally getting around to deciding some of the more important cases of the Term (Monday's decisions were too boring to mention), and today it came out with the New Process Steel case and determined the fate of hundreds of NLRB decisions.

The question was, can the National Labor Relations Board operate with just two members? The normal membership of the Board is five members, and a quorom is normally three. So you might think that the Board couldn't operate with just two.

But, the Board's organic statute allows the Board to delegate its powers to a three-member group, and then provides that a quorom of such a group shall be two. Presumably, the idea here was for the Board to be able to authorize itself to meet in panels of three, the way an appellate court with many judges does routinely. So if the Board authorized a panel of three to consider a case, and then one of the members was disqualified, the remaining two could decide the case.

But the Board faced an unusual situation: toward the end of 2007, the Board was down to four members -- and two of their terms were expiring shortly. It would soon be down to two members, below the quorom of three.

So the Board delegated its powers to three of the members, including one whose term was expiring, and then claimed, when it was down to two members, that those two constituted a quorom of the group of three! The remaining two members thereby decided almost 600 cases, while the President and the Senate squabbled about whom to add to the Board as new members.

By a 5-4 vote, the Supreme Court has now squashed this maneuver. While recognizing that the Board's action rested on a "textually permissible" reading of the organic statute, the Court effectively said that it just couldn't believe that Congress intended the Board to be able to operate with just two members on a long-term basis. The statutory provision for a two-member quorom of a three-member group was for unusual circumstances, not for hundreds of cases over a period of years, the Court believed.

I have to give this one to the dissenters. I expect the Court is right that Congress didn't intend the Board to operate routinely with just two members, but it probably didn't intend the Board to cease functioning either. Congress probably didn't anticipate that the full Board membership would fall to just two members.

The question is how the statute Congress wrote applies to this unforeseen circumstance. The statute permits delegation of the Board's power to any three members and permits two of those three to constitute a quorom. That's what the Board did. As the dissenters observed, the Board's action was "a thoughtful and considerate exercise of its reasonable discretion when it was confronted with two imperfect alternatives."

The Repealer

Senator Brownback, in his campaign for Governor of Kansas, has proposed creating an office of the "Repealer," whose charter is a bit murky at this point but who would apparently have the task of disposing of silly, obsolete, or excessively burdensome state regulations and laws. The suggestion is part of a trend of states to clean up their law and regulation books to get rid of unnecessary and obsolete material. Michigan, apparently, has repealed the laws against prizefighting and dueling.

Wait a minute -- dueling? Look, the idea of going through the law books and getting rid of outdated and obsolete material is a good one. As Senator Brownback points out, it seems as though regulations just increase endlessly and "nothing is ever subtracted from the system." People are rightly frustrated that there seem to be never-ending incursions on everyday freedom, and it's a good idea to check that government regulations which may have made sense when adopted are still necessary, appropriate, and wise, and to get rid of them if they aren't.

But dueling? It's not as though dueling has become OK over time. There used to be a serious problem of people dueling over alleged points of honor -- and let's not forget that dueling involves a private agreement between two people that it's OK for one of them to kill the other. That was properly suppressed, and if dueling were made legal I could imagine some young hotheads taking it up anew. Kids do crazy things, and if you could get around the laws against murder so long as there was an agreement between the people involved I would expect some people would do it.

Fortunately, the stated reason for repealing the dueling law in Michigan is that other, more modern laws clearly make dueling illegal anyway, so there's no need to maintain a specific law against it. But frankly, I would have kept that one. The news headline is "dueling decriminalized," and that's not a headline you want.

LWOP

Having covered the truly significant decision in yesterday's post, let's get to the flashier but not really as important decision in Graham v. Florida. The Supreme Court held that it is unconstitutional "cruel and unusual" punishment to sentence a juvenile offender to life without parole ("LWOP") for a crime not involving a homicide.

I don't really have strong feelings about the decision -- although I think I might have joined the second part of the Chief Justice's opinion, which concluded that LWOP was an unconstitutionally disproportionate sentence for the crime involved in the particular case before the Court, without deciding whether such a sentence could never be appropriate for any juvenile convicted of a nonhomicide offense, no matter how horrible and depraved that offense might be.

What interests me about the decision, though, is this: Justice Thomas, joined by Justice Scalia, expressed the view that there is no proportionality requirement whatever in the Eighth Amendment's Cruel and Unusual Punishment Clause. That clause, they believe, prohibits torturous methods of punishment, but has no application to the question of whether a punishment that might be permissible for some crime is too severe for some other crime. The Court majority, on the other hand, stated that "[t]he concept of proportionality is central to the Eighth Amendment." How can five Justices think something is "central" to the Amendment and two Justices think it not involved at all?

As is often the case, part of the answer comes down to textualism versus other interpretive methods. Justices Thomas and Scalia, in my view, put too much weight on textualism in this question. The Eighth Amendment's single sentence provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It is true that the text does not expressly impose a proportionality requirement on prison sentences. But it does prohibit excessive fines. Can anyone possibly explain why the Constitution would provide that society cannot impose a fine on a criminal that is disproportionate to the criminal's offense, but could impose a disproportionate prison sentence?

I'm sorry, but it just doesn't make sense. One can understand how the Framers might have neglected to specify that prison sentences shall not be excessive, because, as Justice Thomas himself notes, prison sentences were not a common punishment in the eighteenth century -- criminals were punished by fines, whipping, or shaming, or, if that was not sufficient, then by death. But it is hard to understand how anyone could want to prohibit excessive fines but not excessive prison sentences, and the appropriate solution is to subsume the excessiveness requirement in the prohibition on cruel and unusual punishment.

Potentially Important Harbinger

Most of the legal press attention yesterday went to the Supreme Court's ruling that states can't impose life sentences without parole on juveniles who commit offenses other than murder. But really, in terms of overall significance, the more important ruling was the one that held that the federal government can civilly commit and detain sexually dangerous prisoners beyond the date they would be released under their criminal sentences.

This other case, United States v. Comstock, was significant because it turned on the scope of Congress's affirmative powers. It wasn't about constitutional limitations such as the Due Process Clause, but whether Congress has power to enact a statute in the first place. Under the Constitution, Congress, unlike a state legislature, does not have general, indefinite powers. Its powers are limited to those specified in the Constitution (mostly in Article I, section 8). If Congress doesn't have the power to pass a statute in the first place, it doesn't matter whether a state could pass the same statute without violating individual freedoms. That's why the Supreme Court struck down provisions of the Gun-Free School Zones Act in the landmark case of United States v. Lopez.

Comstock considered this issue in a somewhat rarefied context, but it could be an important harbinger of how the Supreme Court will rule on the vital question of the constitutionality of the individual health care mandate in the health care reform act, which is being challenged on the same ground. The important point is that Comstock confirmed the traditionally broad view of Congress's powers, including its power, under the Necessary and Proper Clause, to pass all laws that are necessary and proper to put its other powers into execution.

The Court reaffirmed that the word "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," but rather something more like "convenient" or "useful." The Clause, the Court noted, leaves Congress a "large discretion" in choosing the means to be employed in executing its powers. And the Court adhered to precedents showing that a statute may be valid under the Necessary and Proper Clause even though there are multiple steps in the chain of necessity from one of Congress's expressly enumerated powers to the statute in question -- Congress is not limited to things one step removed from expressly granted powers. Thus, for example, Congress is expressly empowered to "Establish Post Offices and Post Roads," from which, it has been inferred, Congress has the power to carry mail along the post roads, from one post office to another; and from this, it has been secondarily inferred, that Congress has power to punish those who rob the mails. The Court even went so far as to suggest that, in reviewing whether a statute is "necessary and proper" to the execution of Congress's powers, a court should apply the highly deferential standard of asking only whether the statute is "rationally related to the implementation of a constitutionally enumerated power."

Significantly, Chief Justice Roberts joined the Court's opinion, and Justices Kennedy and Alito concurred in the result. Justice Kennedy, the fabled "swing voter" of the Court, thought the Court's opinion went too far in invoking the "rationally related" standard -- he thought there should be somewhat more searching judicial review of whether a statute is "necessary and proper." But he agreed that there is no requirement that a statute be only one step removed from a specifically enumerated power, and he agreed that the test is deferential.

None of the Justices mentioned the health care mandate, but surely they all understand that it lurks in the background. The biggest challenge to the mandate, as I have previously discussed, will be the claim that it exceeds Congress's affirmative powers. The mandate looks a little more secure now than it did before this case. It's still not a slam dunk, but this case suggests that the Supreme Court is not in the mood for further radicalization of its jurisprudence regarding Congress's affirmative powers.

The Constitution and Car Bombs

As might have been predicted, the arrest in the NY car bombing case has set off a wave of arguments about whether the suspect should be afforded the usual protections of the criminal law. Some Republicans members of Congress are suggesting that we should ignore the usual constitutional rules of the criminal law, charge the suspect as an enemy combatant, and bring him before a military tribunal.

Let's not listen to anything I have to say about the issue. Let's turn to that noted radical liberal, Supreme Court Justice Antonin Scalia, who said:

"Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention
without charge."

Apparently lots of people are ready to ignore constitutional restraints in the war on terror. Justice Scalia thinks the Constitution is there to protect us in peacetime and wartime and that its time-tested restraints should be honored. Even as to citizens who wage war against us, the Constitution, Justice Scalia says, requires us to treat them as criminals and charge them accordingly.

Still No Bilski

Another sitting of the Supreme Court has come and gone, and the Court still hasn't decided In re Bilski, which promises to be a big deal in patent law. I was teaching Intellectual Property this term, and I kept putting off teaching patentable subject matter in the hopes that the Court would decide the case, but no such luck.

The case will give us some insight into the longstanding problem of the degree to which patents are available for processes that lie outside the area of traditional industrial, manufacturing processes. A "process" is specifically listed as patentable under section 101 of the patent act, and everyone agrees that a process for vulcanizing rubber, for example, is patentable, but the courts have tied themselves up in knot over more abstract processes, particularly those that involve something like a mathematical algorithm. The Supreme Court started things off by denying patentability for a process for converting numbers from one number system to another and ever since then things have been rather confused.

The Federal Circuit, created to fix up patent law, took great liberties in this area and seems to have regarded itself as authorized to ignore Supreme Court precedent. The Supreme Court gave the Federal Circuit a great deal of leeway for a while -- perhaps to let the experiment work -- but lately has been reining it in almost every Term. Now this case could be another big deal in patents.

Personally, I think mathematicians get unfairly shafted in the subject matter area. Math was my undergraduate major, so perhaps I am biased, but why should achievements in mathematics be less rewarded than those in physics or chemistry? If I invented a fast algorithm for factoring large numbers, for example, it would be extremely important -- all of encryption, as I understand it, is based on the fact that it's easy to multiply two numbers together but hard to break a large number into its factors. A factoring algorithm would be a useful and important achievement, and it's not clear to me why it shouldn't be patentable.

I think I would allow more leeway in subject matter but tighten up in obviousness. A lot of the controversial subject matter patents should clearly have gone down on the obviousness criterion. Mr. Bilski, for example, is basically saying, "I've invented hedging!," which is ridiculous. See also In re Comiskey ("I've invented arbitration!"). Let's give mathematicians their due, but only if they come up with something really new.

Do States Have Standing?

Now that 14 states have sued to block the new health care law, the next question in the continuing federalist battle over this issue is whether the states have "standing" to sue. Under federal law, you can't challenge a law in court just because you don't like it; you have to show that the law injures you in some way. Do states satisfy this standard with respect to the new health care law?

First off, this question is a good illustration of why the rules of standing law are so often silly. As I have explained at length, standing doctrine doesn't serve much discernible purpose. The new health care law, and particularly its individual health insurance mandate, are obviously going to be challenged at some point, and courts will resolve the issue of the mandate's constitutionality. States would make excellent plaintiffs to bring these challenges -- they will have good lawyers and make all the arguments against the new law's constitutionality. And an important part of the case is whether the states or the federal government should be regulating health insurance. So what do we care whether the states are "injured" in some legal sense? Is there any actual value to waiting until suit is brought by some individual who has to pay the tax penalty for not having health insurance (and who would therefore clearly have standing to challenge it)? The courts are going to resolve this law's constitutionality one way or another, and it's hard to see what difference it makes who the plaintiff is.

Having said that, there is some real doubt as to whether the states have standing to challenge the health insurance mandate. The mandate applies to individuals, not to states. According to the states' complaint, many other parts of the act affect states directly, but it's not clear how the mandate does. So the direct injury could well be lacking. And that's not to mention that the mandate doesn't even kick in until 2014, making the suit somewhat premature.

States might try to assert standing under the parens patriae doctrine, under which governments can assert the rights of their citizens. But the Supreme Court declared long ago in Massachusetts v. Mellon that the states cannot use this doctrine to sue the United States. The Court said, "It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof." That's exactly what the states are trying to do with the present lawsuit, so it seems to be forbidden. For the same reason, it seems doubtful that a state passage of a law purporting to declare that citizens of that state don't have to buy health insurance if they don't want to makes any difference to the state's standing -- that's just more of the same.

On the other hand, in the recent case of Massachusetts v. EPA the Supreme Court took a more generous view and said that states were entitled to "special solicitude in our standing analysis." The standing of Massachusetts in that case was based primarily on its ownership of affected land (which might have been swamped by ocean level rises caused by global warming), but the Court included a footnote giving a narrow reading to Massachusetts v. Mellon and hinting that states could have standing to assert "quasi sovereign interests." The same footnote also, however, reiterates that states cannot sue to protect their citizens from the operation of federal statutes.

So while one hesitates to be dogmatic, and while there are cases that could be cited on both sides, the claim of the states to have standing to challenge the health care mandate seems doubtful. If it were up to me, I would say, let them go ahead, we might as well get these issues resolved now as later, but the courts may require us to wait until an individual with clearer standing brings suit.

Health Care Mandate

I've done some more media lately on the constitutionality of state laws that purport to exempt a state's citizens from the new federal health care mandate, which has led to more e-mails on this topic. I've already given a more detailed explanation of my point, but there's obviously a lot of interest in this issue, so let's go over it again.

First, here's a link to an article by Jack Balkin of Yale, which appeared in the New England Journal of Medicine, explaining in more detail why the health care mandate would be constitutional. As Professor Balkin explains, there are several constitutional bases of congressional power to impose this mandate.

The health care mandate is structured as a tax. It doesn't actually require people to buy health insurance; it taxes them if they don't. Congress has the power to "lay and collect taxes." And Congress is constantly using the tax code to incentivize or disincentivize behavior for social policy purposes -- there are all kinds of tax breaks and tax penalties for doing or not doing something. So using the tax code to incentivize buying health insurance would be in keeping with what Congress does with the tax code all the time. So Congress's taxing power supports the health care mandate.

In addition, Congress has the power to "regulate commerce . . . among the several states," and it also has the power to do everything "necessary and proper" to make its regulation effective. Remember that the main point of the health care bill is to prohibit insurance companies from discriminating among customers based on pre-existing health conditions. In order to make that prohibition effective, an individual health care mandate is necessary. Otherwise, healthy people wouldn't buy health insurance until they got sick. Only sick people would buy health insurance, and the health insurance companies would all go bankrupt. So the commerce power, combined with the "necessary and proper" power, also supports the health care mandate.

It's true, as my e-mail correspondents note, that the commerce power applies to interstate commerce. But this power has been interpreted broadly, and it has been understood to cover matters that "substantially affect" interstate commerce. Health care is commerce (in fact, it is one sixth of our national economy), and there can be no doubt that the primary goal of requiring insurance companies not to discriminate based on pre-existing conditions would substantially affect interstate commerce.

So that's why I would predict with pretty strong confidence that the individual health care mandate will be held constitutional by courts, although, as I have remarked before, the argument is not a 100% slam dunk and different views are possible. Suits challenging the new law's constitutionality have already been filed, which is perfectly proper. By all means let these suits go forward and we'll see what the courts say.

The other point, which is the main one that I have been making in the media, is that, in determining whether the health care mandate is constitutional, state law is irrelevant. And that really is a slam dunk.

If the health care mandate is constitutional, it trumps state law because, under the Constitution, federal law is the "supreme law of the land." So, again assuming the mandate is constitutional, no state can exempt its citizens from the mandate.

Of course, as noted above, it is conceivable (thought not, I think, likely) that the mandate is unconstitutional. If so, it's ineffective. But it would then be ineffective everywhere, without regard to what any state's law says about the matter.

So maybe the individual health insurance mandate is constitutional and maybe it's unconstitutional. I think it's constitutional. But in any event, no matter how you look at it, state law is irrelevant. The states that have passed laws that purport to exempt their citizens from the mandate are grandstanding. They must know that those laws are ineffective. If they want to challenge the federal mandate, by all means let them do so. We'll see what happens. But passing a state law about it is not the right means to challenge the mandate and will have no impact on whether the mandate is upheld.

Response on the Census

In response to my last post, a faithful reader (one of my most faithful readers, actually), objected. I was commenting about people who are protesting the census, and faithful reader "Peter" commented:

"It seems that when dissent and protest of government action suits you (during a Republican administration, perhaps), civil disobedience is a sacred and patriotic duty. But when it doesn't suit you, it's kooky and unpatriotic.

"Ignoring the census is, for many, a form of civil disobedience. And a rather mild one at that. . . ."

Not an unreasonable point, Peter, but here are two responses:

1. There's a distinction between "dissent and protest" and breaking the law. If people want to march around with signs protesting the census (or draft registration, or income tax), that's one thing. But breaking the law -- e.g., not paying income tax, not registering for the draft, or not returning the census form when required by law to do so -- is something else. I don't enjoy paying income tax, but I do it because it's required by law. I wasn't wild about draft registration when it was instituted, but I registered, because it was required by law. I'm not saying one should never break the law (we'll get to that in the next point), but let's at least recognize that there are lots of ways to dissent from and protest public policy without actually breaking the law.

2. Yes, America has a long tradition of civil disobedience. But I only respect those who engage in civil disobedience if they're ready to accept the penalties. When Ben Sasway was upset about draft registration in the 1980s, he wrote a public letter to the President about it, saying that he wasn't going to register. He got prosecuted. I respected that. That was civil disobedience. But when people simply throw away their census forms, or don't pay their taxes, that's not civil disobedience, that's just crime. The essence of civil disobedience, I think, is that one breaks the law and accepts the penalties, in the hope of convincing society to change the law.

Of course, if the census forms were really unconstitutional, one could lawfully throw them away. But I covered that earlier. The census is constitutional and has been so held by the courts for decades.

OK, maybe the term "census kooks" was a little harsh. But really, people should do 5 minutes of research before proclaiming the census to be unconstitutional. If you just Google "census constitutional," the second result is the Census Bureau's web page citing the cases that hold the census to be constitutional. You can't just point out that the Census Clause doesn't require all the questions on the census (which is true) and proclaim the census to be unconstitutional. At least do the research. Thanks to Google, it doesn't take long.

More on Health Care

While we're on the topic of health care federalism, we are so proud of the great state of Idaho, which has now actually passed the Idaho Meaningless Political Grandstanding Act -- pardon me, the Idaho Health Freedom Act, which, among other things, provides that "the public policy of the state of Idaho, . . . is that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty by the federal government of the United States of America."

As I explained yesterday, this law will have no impact on the validity of a federal health care mandate. Such a mandate might be valid or invalid, but it won't matter what any state's law says.

What's particularly cute about the Idaho law is that only covers federal penalties. In fact, the statute even defines "penalty" as something imposed by the United States. So I guess Idaho thinks it's fine for the state to push people around with regard to health care choices. Which is not a wholly indefensible position from a federalism perspective, but is somewhat bizarre if one thinks the issue is really about personal freedom.

Federalism in the News

I've been getting a lot of e-mail (some sensible and restrained, some apoplectic and vituperative) because I told CNN that state laws that purport to exempt a state's citizens from the proposed federal health care mandate would be ineffective. My correspondents ask, what about the 10th Amendment? How does Congress have the power to mandate that we all buy health insurance? Here's a little more detail:

1. By virtue of Article I, section 8 of the Constitution, Congress has the power to "regulate Commerce . . . among the several States." This power has been understood broadly, and includes the power to regulate matters that substantially affect interstate commerce.

Health care is commerce. That is why Congress has power to regulate it, including the power to impose a health insurance mandate. Doing so would substantially affect interstate commerce.

The Tenth Amendment would not affect Congress's power in this regard. The Tenth Amendment concerns "[t]he powers not delegated to the United States by the Constitution," but the power to regulate commerce is one of the powers that is "delegated to the United States by the Constitution."

2. I recognize that point #1 is not a 100% slam dunk. Someone will surely challenge the federal health insurance mandate (if it gets passed), and it is conceivable -- though, I think, unlikely -- that the Supreme Court will hold it to be outside the scope of Congress's commerce power. But that's not what I was saying to CNN anyway.

The point I was making to CNN is that whether any particular state passes a law prohibiting health insurance mandates in that state is irrelevant. That's because federal law trumps state law. The Constitution provides that federal law "shall be the supreme Law of the Land." So where state and federal law conflict, federal law wins.

That's why, for example, the Supreme Court has held that Congress (using its commerce power!) can prohibit the use of marijuana, even in states, like California, that expressly permit marijuana use for medical purposes. The Court specifically said, "state action cannot circumscribe Congress' plenary commerce power." In other words, federal law trumps state law.

So if Congress passed a law requiring everyone to buy health insurance, that law would trump any state law that says that no one in the state has to buy health insurance.

Of course, to be supreme, a federal law has to be constitutional. So yes, someone could challenge the constitutionality of a federal health insurance mandate. Maybe it would be constitutional, maybe not (I think it would be). But in any event, it wouldn't matter what any state's law said.

That's the point that I was making to CNN. Some states are passing or considering laws that declare that there are no health insurance mandates in those states. Those laws are pure political grandstanding. They will have no effect of the validity of a federal health insurance mandate. The federal health insurance mandate might be valid or invalid, but it will be valid or invalid everywhere, without regard to the law of any state.

Census Kooks

As faithful readers know, I have an interest in "tax protestors," who are kooks who believe that there's no law that requires payment of federal income taxes. Every ten years, these tax kooks are joined by census kooks, who proclaim that people shouldn't fill out their census forms.

The latest nonsense along these lines is the idea that the census is unconstitutional because it asks for more information than the Constitution authorizes. The Constitution, the argument goes, only allows the government to gather sufficient information to apportion the House of Representatives, which would require only knowledge of how many people live in each place. Depending on how far this argument is pressed, it could theoretically mean that the census isn't even allowed to ask people for their names, but it would certainly suggest that the census isn't authorized to ask for people's race, age, or home ownership status, as in fact it does. People who should know better, including Cato Institute members and members of Congress are pushing these arguments.

It's always tiresome to see people making arguments like this without doing even the most basic research. As can be easily discovered on the Census Bureau's website, courts have considered and upheld the constitutionality of the census. As early as 1870, the Supreme Court used the census questions as an example of a "power [that] may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive." Legal Tender Cases, 79 U.S. 457, 536 (1870). The Court did not have the census before it, so technically it did not pass on the issue, but it used the extra census questions as an example of something that was not specifically provided for in the Constitution, but was so clearly constitutional that no one would even question it. Other court cases, cited on the Census Bureau website, specifically uphold the constitutionality of the census against the objection that it gathers unnecessary information.

The census kooks conveniently ignore the fact that Congress, in addition to its specific powers, has the general power to do all things "necessary and proper" to carry its powers into execution, and this power has always been read broadly. As one court that considered a challenge to the census pointed out, the Census Clause only requires the gathering of enough information to apportion the House of Representatives, but nothing in the clause forbids the gathering of additional information, and if the information is "necessary and proper" to the intelligent exercise of Congress's powers, it is perfectly constitutional for Congress to gather it, and there can be no objection to doing so through the convenient mechanism of the census. United States v. Moriarity, 106 F. 886 (C.C.N.Y. 1901).

So census protesting seems about as logical as tax protesting. But having said that, let me add that if census kooks want to throw their census forms in the trash, fine, it'll just end up helping people like me. The more people refuse to fill out the census, the fewer representatives their states will get, and the less federal money too. So go ahead, census kooks, we all know which states you're mostly from, and if you want those states to get less representation in the House and less federal money, those of us who will end up with more representation and more federal money aren't going to complain too much.

Who Signed This Complaint?

So watch this e-trade ad, featuring those annoying talking babies, and ask yourself, whose right of publicity does it violate?

Of course! Lindsay Lohan!

That's right, Lindsay Lohan is suing e-trade (really!) on a claim that, because the "milkaholic" baby is referred to as "Lindsay," the ad exploits Lohan's identity to tout e-trade.

OK, there is something called the "right of publicity," and it does prevent companies from using the name or likeness of celebrities (or non-celebrities, for that matter) in their advertising without consent. And it's true, the cases show that a use doesn't have to involve the celebrity's full name or likeness to count -- it's enough that the ad uses something "associated with" the celebrity. Thus, a maker of port-a-potties was successfully restrained from calling them "Here's Johnny," because that phrase was so associated with Johnny Carson, and a maker of copiers was successfully restrained from running an ad featuring a robot in a blond wig in front of a board of big letters that was reminiscent of Vanna White on Wheel of Fortune.

But the key to both cases is that the ads conjured up the identity of the celebrities involved by using things strongly associated with them. Here, the only thing involved is the first name, "Linsday," which is a common name. Oh, and I suppose it's true that the ad calls the baby Lindsay a "milkaholic," and Lindsay Lohan has her own famous substance abuse problems. But it's beyond silly to say that the ad violates Lohan's right of publicity. Celebrities don't own their first names, particularly when the name is common. I suppose if the baby were called "Paris" there might be something to argue about. But this suit is a publicity stunt.

Maybe Lohan will be trying to suppress this ad too.

Watch What You Say

I am quoted in this week's Newsweek, which has got people e-mailing me about it. It's got me remembering that press quotations can be misleading.

Newsweek's reporter initially contacted me about some bills working their way through the Virginia legislature that would say that no one in the state would be required to buy health insurance. It had previously been reported that these bills, if passed, would "make it illegal to require people to buy health insurance." Federalism is one of my areas of expertise, so he asked me whether a state could prevent Congress from requiring people in that state to buy health insurance. I pointed out that (a) that's not even what the bills say, and (b) of course if they did say that, they would be pre-empted by a federal law that mandated health insurance, if Congress passed one. So any state that passed a bill that purported to protect people in that state from a federal mandate requiring health insurance coverage would just be engaged in meaningless grandstanding, as politicians so often are. (The chairman of the Federation of Virginia Tea Party Patriots said that the bill was a focus of major lobbying by Tea Party volunteers. It says a lot about the Tea Party that one of their major priorities is a bill that wouldn't actually do anything.)

He also asked me more generally about the health care bill working its way through Congress, and whether it would be constitutional for Congress to require people to buy health insurance. I spent a good ten or fifteen minutes explaining that while of course we don't know yet what the final bill, if any, will actually say, it looks to me like it would be constitutional.

I pointed out that (a) health care is commerce, in fact 1/7 of our national economy, and Congress's power to regulate commerce is very broad, and (b) as I understand it, the bill doesn't actually require people to buy health insurance; it just imposes a tax penalty on people who don't, and Congress is constantly using the tax system to impose incentives or disincentives on various behaviors, so that would be commonplace and would probably be OK. I also referred him to the analysis by my old professor Akhil Amar, which supports the bill's constitutionality. And I observed that lots of governments require people to buy things, including insurance (e.g., auto insurance), so that wouldn't be unheard of either.

I even explained why Senator Orrin Hatch's analysis claiming the bill would be unconstitutional is wrong. Hatch doesn't like the fact that the bill provides that if states don't set up "health insurance exchanges," the federal government will do it for them. But this makes the plan constitutionally better, not worse, because this way the states aren't required to set up health insurance exchanges; they have the option to do so or not.

Having said all that, I did say that the federal government would be doing something new, and that whenever that happens, people challenge it. Given that, as far as I know, the federal government has never done this before, I suggested that a constitutional attack on a federal mandate to buy health insurance would not be trivial or frivolous, but that, in my opinion, it would fail.

So out of the whole 20 or 30 minute interview, what got quoted? Naturally, the quote is:

"The federal government would be doing something new," says Jonathan Siegel, a constitutional-law scholar at George Washington University. "It's not a trivial claim" for the states to make. "It's not frivolous."

There you are. I am accurately quoted, and I can't put any fault on Newsweek, but it looks like I am attacking health care legislation, when I spent 99% of the interview defending it.

So watch what you say when you talk to the media. They only have space to quote one thought from you, and you never know which one it will be.

About Time

It's only been 52 years since Congress decreed that corporations are deemed to be citizens of their "principal place of business" for diversity purposes, so it was about time the Supreme Court got around to deciding what that means. The circuits have spent decades debating between the "muscle" test, which considers that the principal place is business is the place where the corporation does its main business activity, and the "nerve center" test, which locates the p.p.o.b. at the corporate headquarters. The statute has meant different things in different parts of the country all this time.

Finally, the Supreme Court has stepped in and settled the debate. The principal place of business is the nerve center -- the corporate headquarters. It was unanimous, and the Court even wrote a pretty good opinion, pointing out that the nerve center test has the virtue of being easier to apply, even though it will lead to occasional anomalies.

The only question is why it took so long!

News Flash -- It's Illegal to Kill People

After a mere 37 minutes of deliberation, a jury convicted Scott Roeder first-degree murder for killing George R. Tiller.

The defendant had been permitted to testify that, in his mind, the killing was justified because the victim was a doctor who performed abortions. Ultimately, however, the judge didn't give the jury the option of finding the defendant guilty of voluntary manslaughter.

Thank you, jury. Abortion is controversial, but if we allowed people to get out of murder charges on the ground that they really thought it would be a public good to kill the victim, society would completely break down. It can't be a defense to murder that you didn't like the lawful activities the victim was engaged in.

Fantasy Prisoners

The Seventh Circuit has upheld a prison's decision to ban the game "Dungeons and Dragons" among inmates. The prison adopted a rule against the game because it "promotes fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling.”

Sheesh. As Ilya Somin points out over at the Volokh Conspiracy, The Count of Monte Cristo could give rise to escape behaviors. Football encourages organized, competitive hostility.

Without necessarily disagreeing with the court's decision that there is no constitutional right to play Dungeons and Dragons in prison, I would have to say that this prison rule seems over the top and also seems to be a continuation of standard, unverified cliches about the dangers of this form of game. I haven't played D&D for decades, but I used to play when I was in high school and certainly my group never had any difficulties confusing the advisability of fantasy violence with that of real violence.

Of all things, the prison said it was concerned about D&D, not just because of the fantasy violence involved, but because the game involves cooperative behavior: the prison was concerned "about cooperative activity among inmates, particularly that carried out in an organized, hierarchical fashion." Such organized, cooperative activity can be the basis of forming a prison gang, the prison officials said.

My goodness, what if one of the prisoners organizes a book group and instructs the members on which book to read for the next meeting? Does the prison forbid that?

Maybe it does, but I doubt it.

Another Dreary 5-4

A snappy little per curiam from the Supreme Court this week on the question of whether to stay the decision of a district court in California to broadcast the current trial on the question of whether the state's ban on same-sex marriage is unconstitutional.

Now, look. You may or may not like same-sex marriage. You may or may not like broadcasting trials. But that isn't even what the Court's decision is about. The question was whether the district court followed proper procedures in amending its rules, which previously prohibited broadcast of trials, to allow the broadcast of this trial as part of a "pilot program."

But before reading further, see if you can guess which five Justices thought it hadn't and which four thought the change was OK?

The question of whether federal trials and other federal judicial proceedings should be broadcast has gotten a fair bit of attention over the last few years. The national Judicial Conference (a body that represents the whole federal judiciary) has been steadfastly against it. Congress has been considering some bills to permit it, but they haven't gotten very far yet. At the moment, broadcast is generally banned but it's open to federal courts to change that by rule.

But there are procedures that have to be followed to change federal court rules. In particular, the Rules Enabling Act requires a court that wants to make or change a rule to give "appropriate public notice and an opportunity for comment," unless there is an "immediate need" to make the rule change without such notice and opportunity.

Did the district court in this case do that? You decide. As early as September 25 of last year, the district court informed the parties that there was interest in having the trial broadcast. One month later, the court of appeals's chief judge appointed a committee to consider changing court rules to permit such broadcast. On December 17, the Ninth Circuit's Judicial Council announced that it had approved a limited pilot program to test broadcasting of judicial proceedings.

On December 23, the district court announced that it had changed its local rule, which had prohibited broadcasts, to permit broadcasts in connection with the pilot program. But then on December 31, the district court withdrew that announcement and instead announced that it was proposing a revision of its local rule, and that public comment was solicited, with a deadline of January 8. Then on January 4, 2010, the district court again changed the announcement, to state that it had changed its local rule, effective December 22, based on the "immediate need" to make the rule change.

Well. As the Supreme Court ruled this week, it sure seems like the district court didn't know what it was doing. Speaking as an administrative law professor, I would say that this sounds rather like an agency that discovered only at the last minute that it was subject to procedural requirements and that scrambled around to try to justify procedurally what it had already decided to do. The Supreme Court suggested -- rightly, in my opinion -- that an agency that tried to pull this kind of stuff would get slammed by a reviewing court.

The district court proposed a public comment period that lasted a whopping five business days -- and it didn't even hold the comment period open for that long before acting. Most agency public comment periods last at least 30 days. Also, when agencies claim an emergency need to avoid a public comment requirement, it's usually for something really important, not something like, "we have a particular case that we'd like to get into the new program." I mean, let's face it, federal trials have been not broadcast for hundreds of years; it won't kill anyone it this particular trial isn't broadcast and the new pilot program only takes effect after it's over.

So it seems to me that the district court was engaged in absurd procedural shenanigans and it rightly deserved to get smacked.

Now, I recognize that there are arguments the other way. As the dissenting opinion in the Supreme Court pointed out, the parties to the particular trial involved had sufficient notice (3 months or so) of the possibility of broadcast. There was some period of public comment -- and apparently there was a huge response; over 130,000 comments were received, almost all favorable. In addition, the Supreme Court isn't supposed to act on just anything that gets filed with it; its jurisdiction is discretionary and it's supposed to reserve its time for really important matters, which this isn't. So there's a good argument that the Court should have declined to act.

So I think I agree with the Court's action, but it's not entirely one-sided.

But here's the thing: the vote was 5-4, and it was the five conservatives against the four liberals, as usual.

Sheesh! Does everything have to be politicized and ideologized? Just because the hot-button issue of same-sex marriage is involved, does every small procedural detail of the trial have to be split along liberal/conservative lines? Couldn't just one of the liberals have decided that, as an administrative law matter, it's wrong for government bodies to ignore procedural constraints because they're in a hurry on a particular case? Couldn't just one of the conservatives have decided to follow the Supreme Court's usual practice of not bothering with piddling matters?

Sigh. I find it increasingly depressing that no one seems to be able to break out of their ideological cocoons. This case was primarily a procedural issue. But everyone's so focused on the hot-button background that no one can (one might say) think straight.

Blasphemy!

It is easy to smile at the new Irish blasphemy law, which apparently imposes a whopping fine of 25,000 Euros (over $35,000) for "publishing or uttering matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby intentionally causing outrage among a substantial number of adherents of that religion." A group of Irish athiests is attempting to challenge the law by breaking it with a posting of famous blasphemous quotes.

But did you know that some American states also prohibit blasphemy? Oh, yes, they do. And it's not even the states you're thinking of.

A 1931 Michigan state law, still in force, provides "Any person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor." (And the next section says, "Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor.")

A Massachusetts statute (apparently going back to 1697, but still in force) provides, "Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior."

Oklahoma law (sorry, no ready link) provides that "Blasphemy consists in wantonly uttering or publishing words, casting contumelious reproach or profane ridicule upon God, Jesus Christ, the Holy Ghost, the Holy Scriptures or the Christian or any other religion," and that "Blasphemy is a misdemeanor," although it exempts words used in the course of "serious discussion."

Sure, these laws are probably unconstitutional. But they're on the books. So Ireland isn't the only one limiting free speech in the name of protecting God from verbal abuse.

Falsely Accused

Faithful readers, the new term has started (on January 4!), but I am still finishing up my grades from last term, so expect minimal blogging for a while longer.

For today, though, let's consider the now-dismissed Supreme Court case of Pottawattamie County v. McGhee. The plaintiffs, some 20 years ago, were convicted of murder, apparently on the basis of false testimony deliberately procured by prosecutors. They brought suit claiming that deliberately procuring false testimony violates their constitutional rights. The case turns on complicated issues of prosecutorial immunity -- sometimes, the law lets prosecutors off even when they do something awful and wrong, because otherwise prosecutors would spend their whole life getting sued -- but among other things, the prosecutors have claimed that there is no constitutional right not to be framed.

The case has been settled, so we won't find out the answer soon, but sheesh, of course there's a constitutional right not to be framed. The Supreme Court decided over 40 years ago, in Brady v. Maryland, that prosecutors have a constitutional duty to turn over exculpatory evidence to the defense. If prosecutors have framed the defendant by deliberately procuring false testimony against him, they have exculpatory evidence in their possession that they have not turned over -- namely, the fact that they have framed the defendant by deliberately procuring false testimony against him. So framing a defendant necessarily violates his constitutional rights under Brady.

Thank you. Next case.