California Hippiespeak Comes to the U.S. Supreme Court

Although your Wizard has never personally argued a case before the U.S. Supreme Court, it is undoubtedly a daunting task.  The courtroom itself is majestic and impressive, and it is designed -- if not in intent, but certainly in effect -- to be humbling. 

One can only imagine, then, the butterflies that took up residence in the digestive system of one Jonathan Libby, who recently argued for the respondent in U.S. v Alvarez. 

Mr. Libby's client, Xavier Alvarez, had been convicted of violating the Stolen Valor Act, a 2006 federal law that made it a crime for a person to falsely claim that he had been awarded a medal for service in the armed forces.  It turns out that Alvarez, an elected member of the Board of Directors of the Three Valleys Water District in Claremount, California, stated to his fellow members during a meeting: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medial of Honor.  I got wounded many times by the same guy. I'm still around.”

These statements were lies—he never served in the Marines or received a Medal of Honor. In fact, Alvarez had frequently lied about his accomplishments in the past, often fabricating sensational stories about his purported military service.

After his conviction, Alvarez appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the conviction, holding that the Stolen Valor Act violates the First Amendment because it unconstitutionally limits free speech and is not narrow enough to meet a “compelling government interest.”

So that brings us to the argument before the Supreme Court.  After hearing from the U.S. Solicitor General, the Court called on deputy public defender Jonathan Libby:

          MR. LIBBY: Thank you, Mr. Chief Justice, and may it please the Court:

The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie. It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.

CHIEF JUSTICE ROBERTS: What is -- what is the First Amendment value in a lie, pure lie?

 MR. LIBBY: Just a pure lie? There can be a number of values. There is the value of personal autonomy.

 CHIEF JUSTICE ROBERTS: The value of what?

MR. LIBBY: Personal autonomy.

CHIEF JUSTICE ROBERTS: What does that mean?

 MR. LIBBY: Well, that we get to -- we get to exaggerate and create -

CHIEF JUSTICE ROBERTS: No, not exaggerate -- lie.

MR. LIBBY: Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain. That was creating a persona, and he made things up about himself -

CHIEF JUSTICE ROBERTS: Well, but that was for literary purposes. No one is suggesting you can't write a book or tell a story about somebody who earned a Medal of Honor and it's a fictional character, so he obviously didn't. It just seems to me very different.

 MR. LIBBY: Perhaps. But there are other things. In addition to the fact that people tell lies allows us to appreciate truth better.

So Mr. Libby would have the Court create constitutional doctrine on the psychobabble of "personal autonomy" and "lies allow us to appreciate truth better."  I think Mr. Libby may have spent too many years in the public defender's office or in California or both.  How about "murder is an expression of self-esteem and helps us appreciate life better" -- does that argument work for you?

I cannot predict the outcome of this case -- the Court will be sympathetic to Congress's intentions, but it has applied the First Amendment pretty broadly -- but I pray that, even if Alvarez prevails, the Court does not turn its hallowed courtroom into a haven for arguments more appropriately made on the Jerry Springer or Dr. Phil shows. 

Understanding the Health Care Litigation, Part One

After all the politics appearing in these hallowed pages lately, it's time to get back to fundamentals, as befits the Wizard of Laws.  (Though I dare say that my January 7 and November 9 posts below have been amply vindicated).

The big event of the U.S. Supreme Court's 2011-2012 term -- and perhaps the most important since Brown v Board of Education -- will be the decision on the various cases involving the Patient Protection and Affordable Care Act. commonly known as Obamacare.

The issues to be argued are known generally by the public, but few understand them in any detail.  For example, during a recent forum, the Lieutenant Governor here in the Enchanted Mitten, arguing for a state-established health care exchange, said that even if the Court finds the individual mandate unconstitutional, it will have no effect on health care exchanges, since HCEs are not before the Court.  This position is not exactly accurate.  If the Court determines that the individual mandate is unconstitutional. it will then  expressly decide whether the entire law must be struck down, including those provisions pertaining to health care exchanges.

The issue of whether to invalidate an entire law when one provision is declared unconstitutional is what is known as the issue of severability.  In other words, can the offending provision be severed from the rest of the law so that the law remains in effect, minus the severed provision?

There is a fair amount of misconception about severability.  Many people believe that an unconstitutional  provision cannot be severed unless there is a severability clause in the law itself.  Since Obamacare contains no severability clause, the argument goes that declaring the individual mandate unconstitutional will strike down the entire law automatically.

This is not true.

The Supreme Court established the applicable severability standard in the 1987 case of Alaska Airlines v Brock, in which it held that an unconstitutional provision may be severed "unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not."  So, severability is presumed, unless it is clear that, without the unconstitutional provision, Congress would not have enacted the law.

The Brock standard is not exactly a model that lends itself to metaphysical certainty.  The Court found that the "more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress."  Again, there is a certain subjectivity to this standard, which relies on faithful application by the courts.

Yes, I said "faithful," not "consistent."  In the four cases in which the individual mandate was found unconstitutional, the courts dealt with severability in four separate ways.  The courts in question decided:

1.  Only the mandate and those directly-dependent provisions which make specific reference to the mandate were to be severed;

2.  The mandate is non-severable and the entire law is invalidated;

3.  Only the mandate itself is severed; and

4.  The mandate is non-severable from the guaranteed-issue and preexisting conditions provisions, but the rest of the law remains intact.

One Supreme Court petitioner wrote:

As these four divergent opinions make clear, there is serious confusion as to how to apply this Court's severability jurisprudence to the [Act].  That confusion stems in large part from the unusual facts at hand, including the extraordinary length and complexity of the Act, and 'the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.'

As you can tell, this is a complicated issue, but it is now before the Court and, if the individual mandate is declared unconstitutional, the Supreme Court will then determine whether Congress would have enacted Obamacare without the individual mandate.  If the Court declares the mandate non-severable, the entire law will be invalidated, including those provisions related to health care exchanges.

Next time:  a closer look at the individual mandate and interstate commerce.

The Wizard of . . . Politics?

After the GOP at Oakland University on November 9, I wrote:

Santorum:  He does well on every question.  They just won't ask him enough of them.  If he was in the middle of the stage and got 10 questions, the dynamics of this race would change instantly.

Now, after Iowa, there will be two more debates before the New Hampshire and South Carolina primaries.  The debates will surely feature more questions to Sen. Santorum, and we'll find out quickly if The Wiz is ready to branch out.

Stay tuned!

America's Newest Protected Class -- Felons!

Your Wizard doesn't usually have a crystal ball, but he may have accidentally careened into the future over a year ago when he wrote about growing efforts to give special status to felons.  At that time, there were signs that in elections, the census, and the workplace that felons were going to get special status, on the theory that, since minorities commit felonies in greater proportion than white people, to discriminate against felons is nothing more than thinly veiled racial discrimination.

These signs are now coalescing into a full-fledged attempt to elevate felons into America's newest protected class.  Massachusetts now prohibits employers from asking about criminal records on initial employment applications, except under certain limited circumstances.  The city of Cleveland will no longer ask applicants whether they have ever been convicted of felonies.

In fact, over 30 cities, including Detroit and Kalamazoo here in the Enchanted Mitten, have joined the "ban the box" (BTB) movement to prohibit any job application questions about a prospective employee's criminal history.  Litigation is pending in Illinois, New York, Pennsylvania, and California, designed to hold employers responsible for discrimination because they asked for criminal histories on their job applications.

The professed theory behind BTB is that by removing criminal history as an automatic disqualifier at the outset, more felons will be able to get deeper into the application process and be judged on their positive qualities, not just on their criminal records.  This is obviously based on the premise that, for many jobs, a felony history is irrelevant and should not disqualify the applicant,

The BTB theory falls apart, however, when one looks at the later stages of this new employment process.

Let's take a look at Detroit's approach.  Section 13-1-12 of the City Code provides:

Except as provided for in section 13-114 of this Code, the City of Detroit shall not inquire into or consider the criminal conviction of an applicant for employment with the City of Detroit until the applicant is being interviewed or is otherwise qualified for employment by the City.

In other words, don't ask until later.

This approach comes completely asunder with subparagraph 2 of Section 13-1-14:

This division does not limit the right of the City:
(2) To otherwise take into consideration during the hiring process a potential employee's criminal conviction[.]

So, you can't ask about a criminal conviction on the application, but you can take it into consideration any other time you feel like it.

What kind of protection is that?

Answer:  it is no protection at all, but it allows the City to say it is doing something to help felons and, more importantly, it reveals the lie inherent in the "ban the box" lunacy -- while pretending to assist felons in re-entry into the workplace and society, the code contains a loophole big enough to drive a stolen semi through.  And it's all to protect the people who really need protecting -- city employees.

Despite the hypocrisy and empty promises, it's only a matter of time before BTB-types step up the pressure and start getting real concessions from city leaders.  At some point, it will be completely illegal to inquire at any time into an applicant's criminal background and, given the growing segment of our population with felony records, our government offices will be staffed with sizable percentages of felons.

Then crime won't just be for our elected officials.  But, that's just my crystal ball talking.

I'm on Alec Baldwin's Side

One of America's most annoying personalities, Alec Baldwin, got tossed off an American Airlines flight for playing Words with Friends on his iPad.  Ordinarily, I would applaud this turn of events, but I have to say that, this one time, I'm on Alec Baldwin's side.

Words with Friends should be banned.  It's far more addictive than meth or crack or Ghirardelli peppermint bark.  I know.  I've been there.  I live with an addict.

Read my tragic story here.

Giving Thanks

In the law biz, conflict is constant, and unpleasantness abounds.  And yet, I truly appreciate the opportunity to be of service to so many over the last 29 years.  Still, I am most thankful for my beautiful wife, who endures so much, and my two amazing children, who bring us such joy and laughter.

To celebrate the holiday and recall those things that are most important to me, I am re-linking letters to my children.  Please take a look here and here, then embrace your own family in the true spirit of Thanksgiving.

Have a wonderful holiday!  God bless you.

The Wiz.

The Last Word

Ron Paul gets the last word in the debate.

Why can't anyone get the name of Oakland's mascot right?  It's Golden Grizzlies, not just Grizzlies.

All told, not that much elucidation.  Here's my take on their performances (in stage order, from left to right):

Santorum:  He does well on every question.  They just won't ask him enough of them.  If he was in the middle of the stage and got 10 questions, the dynamics of this race would change instantly.

Bachmann:  Can't seem to find her voice.  She's got the facts and her instincts are good, but she needs polish.  Example:  "The Chinese army is the number one employer of the world," when she really means, "The Chinese army is the largest employer in the world."

Gingrich:  Helped himself tonight, although he needs to stop looking for opportunities to pick fights with the moderators.  He is the most knowledgeable, and he will be more formidable if he can stay in the race long enough to be one of the last 2 or 3 or 4 standing.

Romney:  Had the most questions, handled them well, no major gaffes.  Another plus night for Mitt.

Cain:  He did okay, but he is starting to sound like a broken record.  He relates everything to his 9-9-9 plan and doesn't stretch out beyond it.  We may look back at this night as the night when Cain's candidacy began to recede.

Perry:  Thanks for playing, Governor, we have some lovely parting gifts for you.  We could overlook an uneven performance if it varies within a fairly high range.  Perry fluctuated significantly; at times he was good and seemed to hit his stride, only to falter again.  Then, that enormous gaffe when he couldn't remember the name of the third agency he wanted to get rid of.  For him to recover now would be nothing short of miraculous.

Paul -- The usual stuff.  I don't really see him gaining any traction.

Huntsman -- A thoroughly mediocre performance.  And again, what's with the one raised eyebrow all the time?  He alsways looks half-suprised.

Winners tonight:  Romney, Gingrich

No significant damage:  Santorum, Bachmann, Cain, Paul.

Time to pack it in:  Perry, Huntsman.

My final unofficial question count:

Santorum:  4
Bachmann:  6
Gingrich:  7
Romney:  14
Cain:  8
Perry:  7
Paul:  5
Huntsman:  6

The Homestretch

Cain gets a laugh with his customary opening to his answer on a California bridge question, "That's why I have proposed a bold plan. . . "  I don't think he meant it to be funny.

Romney says he would bring an action "at the WTO level," charging China as a currency manipulator.  Is that a real solution or is it an acceptance of our subservience to the global economy?

Gingrich says we have to "dramatically raise the pain level for the Chinese" for cheating.

Huntsman should avoid any attempts at humor. 

Huntsman accuses Romney of "pandering" by "throwing out applause lines" about tariffs.  But he offers nothing of substance.

Bachmann has a pretty good grasp on the Chinese problem.  "We need to stop enriching China with our money." 

Cain's answers and his style seem repetitive and, at times, condescending.  He always comes back to his 9-9-9 plan, and he is starting to seem like a one-trick pony.

Oh, wait -- great line from Herman Cain:  There are two other big problems with Dodd-Frank -- Dodd and Frank.

It's feast or famine with Rick Perry.  Either he's good or he's not.

Education and Knowledge

Gingrich demonstrates -- again -- his knowledge, this time on higher education.  I think he is the most knowledgeable on the stage, and he would demolish Obama in a debate.  But, can he get the nomination and overcome his personal and political baggage?

Perry says governors and legislatures need to force higher education to lower tuition and increase quality.  Another weak moment for him, as he sidesteps a question on student loans.

At the third break, by my unofficial count, here are the question totals:

Santorum:  4
Bachmann:  5
Gingrich:  6
Romney:  12
Cain:  6
Perry:  6
Paul:  4
Huntsman:  6

Questions on the Budget and a Huge Stumble for Perry

Gingrich looks like he's in pain.  I don't think he has much regard for the intellectual abilities of the other candidates.

After a video from Caterpillar's CEO, Perry deftly points out, "There's a reason Caterpillar moved to Texas, and it doesn't have anything to do with Republicans or Democrats." 

Oh no, Perry can't remember the third agency he'd get rid of -- Energy, Commerce, and ...?  A terrible moment.  (He meant Education, right?)

Romney:  The issue of deficits and spending is a moral imperative.

Bachmann says she opposed reducing payroll taxes because it would "blow a hole" in the social security trust fund."  Pretty gutsy.

Huntsman says he would "clean up the balance sheet."  How?  He doesn't say, just switches to the "trust gap."  Then he goes back to taxes, and says he's the only one who delivered a flat tax while governor. 

Ron Paul needs to see his tailor -- his suit jacket doesn't fit properly, and it makes him look like Irwin Corey with a haircut.  He is right on student loans, however.