Tuesday, November 29 at 6:00pm in the Room G85
Mr. Alan Gura, litigator of famous Supreme Court Second Amendment cases DC v. Heller and McDonald v. Chicago will speak on his current Second Amendment cases in NY and across the US.
Posts Tagged ‘Constitution’
Current Second Amendment Litigation with Mr. Alan Gura
Monday, November 28th, 2011Dangerous Territory: Katyal’s “make less money” argument
Wednesday, June 8th, 2011Last Wednesday, while defending the national healthcare law (AKA “Obamacare”), Solicitor General Neal Kumar Katyal said something that should strike fear into the heart of every American. While defending the “individual mandate” (the portion of the healthcare bill requiring virtually every American to purchase health insurance), Katyal said:
“The minimum coverage provision only kicks in after people have earned a minimum amount of income. So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income.”
In short, Katyal’s argument is this: the “individual mandate” isn’t exactly mandatory because Americans can theoretically make less money and thus utilize a “hardship exemption” to avoid the individual mandate. Because this exception applies only when health insurance premiums are more than eight percent of the exempted party’s income, in order to utilize this exception, one would need to earn an incredibly low amount of income — very likely well near or at minimum wage.
As I have mentioned before, the underlying logic of Katyal’s reading of the commerce clause — a reading which essentially grants Congress unlimited power over anything plausibly (or even theoretically) connected to commerce — is absolutely ridiculous. If we are to believe Katyal’s reading of the commerce clause, Congress may regulate “commerce” by making Americans buy into any industry — and if Americans don’t like buying in, they have the “option” of simply becoming poor and removing themselves from “commerce.”
Of course, this “go poor to avoid insurance” option is unrealistic, and it simply reflects the unique brand of groupthink being used to justify Obamacare. Katyal’s argument is not based in a solid interpretation of the Constitution or even a good-faith attempt at interpreting it — it’s an attempt to justify legislation plainly not permitted by the Constitution by simply boring a linguistic hole into the Constitution through which anything can pass through. In this linguistic fantasy land, virtually any legislation can be justified on the basis of commerce — and none of it would be compulsory, since Americans can simply leave the country and “depart the market” as they did in Heart of Atlanta Motel.
The DMCA, 17 U.S.C. §1201, and the Penumbral Right to Post-Purchase Control
Monday, February 28th, 2011A very important battle is being fought over the interpretation of a now infamous copyright statute that could possibly blur the line between government and the technology industry beyond the point of no return.
The anti-circumvention section of the Digital Millennium Copyright Act, 17 United States Code §1201(a)(1), prohibits the circumvention of “technological measure[s]” that “effectively control access” to copyrighted material. The statute also prohibits against, among other things, the manufacture of products “primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title”, where the product has “limited commercially significant purpose” and “is marketed [...] for use in circumventing a technological measure”. In short, the statute allows companies to criminalize the act of tinkering with the distribution methods of copyrighted works — making the mere act of playing around with the code on a DVD (or the selling of information on how to do so) a criminal offense.
In its application, 17 U.S.C. §1201 criminalizes not only garden variety copyright infringement, but it also has criminalizes the use of products in a way that could possibly facilitate copyright infringement, crafting a sort of “rights penumbra” around a copyrighted work that extends far beyond the traditional protections afforded copyright material. As noted above, §1201 does not merely apply to protecting copyrighted work itself — rather, it protects the copyrighted work’s access control measures from being circumvented. This “anti-circumvention” provision reflects a legislative desire to protect copyright owners from future copyright infringement — by criminalizing the methodology of copyright infringement itself, §1201 prevents the remotest possibility of copyright infringement. This protection comes at a price: it effectively sacrifices the interests of consumers and their right to their own property, making them pseudo-licensees of otherwise fairly purchased technological goods subject to the implied rights of copyright owners. Thus, in a way, the rights of consumers have been sacrificed to the corporate interest in copyright protection.
In my mind, the best way to understand the utter ridiculousness of §1201 is to apply it to the automobile industry. Were §1201 applied to vehicles, for example, Ford would not only have control over the copyrights typically involving their vehicles, but they would be given the right to restrict the use of their vehicles entirely. Ford could not only lock the hood of their car with a proprietary mechanism that only their authorized mechanics could open, but they could also use the criminal law to prosecute auto body shops, car modification shops, and even private parties that dared unlock Ford car hoods. Ultimately, Ford would gain an unqualified power to control the use and modification of their vehicles post-purchase, using the pitiful excuse of copyright law to criminalize private action — that is, unless the Library of Congress arbitrarily determined that Ford was being naughty and created an exemption for Ford car owners.
It almost goes without saying that §1201 is an extreme federal intrusion into commerce under the guise of copyright protection. The Constitution’s Copyright Clause states that Congress has the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Applying this provision, the Federal Government routinely grants copyrights and patents, which are in many cases the cornerstones of commercial innovation and competition. Unlike “normal” copyright law, however, §1201 has little to do with securing exclusive rights to writings and discoveries — rather, §1201 secures the “penumbral right” to control security measures surrounding these rights, in essence expanding copyright law not only to “Writings and Discoveries” but also to tangentially related access control measures. In a sense, §1201 is not about copyright law at all: it is a law, ostensibly created through the Commerce Clause, that grants companies the legal right to control post-purchase use of their goods.
A number of cases are being fought on the topic of §1201, though sadly few raise the issue of the validity of §1201 itself. Of particular note recently is the Playstation 3 hacking case, SCEA v. Hotz, which involves a lone hacker “jailbreaking” the Playstation 3 video game console, where “jailbreaking” allows users to run private software (and allegedly, illegally copied games) on their consoles. While the Defendant, George Hotz, contends that his hacking was for interoperability (that is, garden variety innocent use of unapproved programs that do not violate copyright), Sony Entertainment of America argues that Hotz’s hacking has enabled users worldwide to illegally copy video games, and thus contends that Hotz should be severely punished. What makes SCEA v. Hotz intriguing is that Hotz has a very legitimate defense to SCEA’s allegations: the modifications he provided may, in the future, allow other hackers to figure out how to violate copyright, but his hacks themselves did nothing to allow copyright violation. If SCEA wins their case, Hotz will essentially be punished for instigating a long series of events that may lead to copyright violation — and thus, §1201 will become even more extreme in its power.
The largely unrestricted grant of power given copyright holders via §1201 is incredibly worrisome because it jeopardizes the concepts of fair use and fair competition. In allowing copyright owners the right to create inviolate access control measures, Congress essentially demanded that purchasers of copyrighted work subject themselves to whatever arcane or unfair access control measures that the copyright owner places on his or her work, lest they be punished by extreme sanctions. This extreme grant of power not only nearly destroys the idea of the “fair use” of a product, but it allows companies to immunize their products from distributional competition through federal law. Moreover, given the incredibly tenuous Copyright Clause basis upon which §1201 relies, §1201 itself appears to be an overly broad extension of Congressional power, even if modern interpretations of the Commerce Clause allow Congress virtually unlimited power.
One can only hope that courts, such as the court in SCEA v. Hotz, identify the many issues of §1201 and limit it — if not invalidate it — accordingly. §1201 is an overly broad, unjustified, ill-applied, and patently unfair mess of legislation that, as some allege, indicates that Congress myopically focuses upon the interests of companies before it does the rights of Americans. Congress, by enacting §1201, has turned the government into an enforcement tool for copyright owners, which sets a very dangerous precedent: where copyright holders have absolute power over their creations, innovation and competition all but grind to a halt. The rights of individuals to use what they legally purchase — as well as the right of Americans to freely and fairly compete in the marketplace — should always trump the alleged needs of monopolistic copyright owners.
The Sibelius ruling as a defense of state and individual autonomy
Sunday, December 19th, 2010The court in Virginia v. Sibelius has provided a small victory for federalism and individual autonomy.
The case, brought to federal court by Virginia Attorney General Ken Cuccinelli, involved a challenge to the Patient Protection and Affordable Care Act (AKA “Obamacare”), which among other things required that virtually all US citizens had to maintain a minimum amount of health care by 2014 lest they face a hefty fee. The reason such a system was enacted was to force those who were not part of the system (i.e. those for whom it would be a bad investment) into the system, where their money would essentially subsidize the addition of those with pre-existing conditions who would utilize the lion’s share of insurance funds. Supporters of the law characterized the lack of purchasing health care as a “decision” that could be regulated by Congress because the “decision” allegedly burdened society as a whole. Cuccinelli argued that the “individual mandate” in the law violated the Commerce Clause by forcing citizens to purchase services in the private economy when they chose not to. Secretary of Health Kathleen Sebelius defended the law by arguing that the individual mandate was necessary for the stability of the program and, alternatively, the individual mandate was a legitimate form of taxation. The court decided in Cuccinelli’s favor this week, holding the portion of the law involving the individual mandate unconstitutional.
Without strong decisions limiting Congressional power like the decision in Sibelius, one could scarcely imagine what Congress could not do. The ruling in Sibelius is far from surprising given the restrictions the Court has placed on the Commerce Clause. Though some political commentators believed the individual mandate was justified by cases like Gonzales v. Raich and Wickard v. Filburn, both cases (regarding the private noncommercial production of marijuana and wheat, respectively) involved deliberate activity, not the “decision” of non-action. In other words, these cases only spoke to the ability for Congress to influence similar commercial and non-commercial activity, not the fundamentally non-commercial lack of activity “decisions”, and thus the cases were not on point. As Sebelius indicates, the essential limitations on the Commerce Clause outlined in cases such as US v. Morrison still stand: Congress may not use the Commerce Clause as a catch-all for any and all legislation with tenuous connections to economic activity, no matter how commendable the legislation is.
The opinion of Virginia v. Sibelius (which can be viewed here) clearly upholds the Morrison check of power. In short, the opinion decided that the individual mandate exceeded the powers granted to Congress through the Commerce Clause, despite the fact that the health care legislation needed the individual mandate to remain economically feasible. Theoretically, parts of the law (including the requirement that insurers accept those with pre-existing conditions) still exist, despite the fact that these provisions will now become difficult to maintain without the individual mandate.
This decision is a strong victory for American public, and a much-needed protection of state and individual autonomy. If Congress could determine inaction is action within the economy, the economic regulatory power granted through the Commerce Clause (and gratuitously expanded through cases such as Lopez) would become all-encompassing, touching nearly every aspect of American life. Such a wide berth would essentially nullify the 10th Amendment and other parts of the Constitution dealing with federalism — where unlimited power is given to the Congress, for all intents and purposes no power remains vested in the states. Such a wide berth would also enable Congress to invade private autonomy in a way that could render individual autonomy virtually meaningless — with such freedom, Congress could easily regulate everything from how long you sleep to what stores you purchase food at, where the former would involve your “decision” of inaction in the economy and the latter would involve your actual “decisions” within the economy. Without strong decisions limiting Congressional power like the decision in Sibelius, one could scarcely imagine what Congress could not do.
Ultimately, it appears that a final determination will have to be left to the Supreme Court — numerous federal courts have split on whether or not the Commerce Clause allows such a power, and thus the entire issue seems ripe for certiorari. Let us only hope that the Supreme Court is willing to defend state and individual autonomy and not let misleading emotional appeals blind their eyes.
How the new TSA “Security Theater” may violate the 4th Amendment
Saturday, November 27th, 2010The new TSA backscatter x-ray machines — as well as the procedure surrounding them — may very well violate the 4th Amendment.
The TSA’s new backscatter x-ray machines are body scanners that read reflected radiation off of a scanned subject, a process presumably intended to replace metal detectors. The result of backscatter scans is an essentially nude x-ray “photograph”, which can be viewed (and, as some allege, saved) by TSA officials. The point of these scanners is to search airline passengers for weapons, explosives, and other contraband. If the passenger does not consent to this search, he is subjected to a full body (“enhanced”) pat-down which in many instances can involve a full strip search. Refusing both of these methods can result in a $11,000 fine. These procedures all contribute to what some pundits call the “security theater” of the TSA — a series of entirely useless but showy anti-terrorism measures that pretend to protect against risk that may not even exist.
The TSA contends that their backscatter x-ray machines are a much more efficient at finding weapons and other contraband, but this allegation is questionable at best. A recent German TV show (video available here) showed a man sneaking materials through the new scanning system with minimal effort. Science TV show co-host Adam Savage was able to sneak 12-inch razorblades through the system. According to the Electronic Privacy Information Center, the scanners are “unlawful, invasive, and ineffective.” Even assuming that the machines are effective, the “enhanced” pat-down measures that are required for passengers that refuse to use the backscatter machines are ineffective and would have easily missed the December “underwear bomb”. Some health groups even claim that the machines are physically dangerous to certain groups (such as the elderly) due to the use of radiation.
As a general rule, suspicion-less checkpoint searches (and seizures) are allowable where the court finds a reasonable balance between “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Illinois v. Lidster, 540 U.S. 419, 427 (2004) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)). As it is fairly undisputed that preventing air terrorism is a strong public interest, warrantless searches of the kind performed by the TSA in past years (involving metal detectors and the like) have generally been held acceptable. United States v. Marquez, 410 F.3d 612, 618 (9th Cir. 2005). Among determinative factors in courts permitting such searches was the finding that the searches were “minimally invasive”, “escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search”. United States v. Hartwell, 436 F.3d 174, 180 (3d Cir. Pa. 2006).Because the TSA has increased the invasion of individual liberty with no tangible benefit to the public interest, the courts may very well have a strong reason to hold these new searches unconstitutional per the Brown v. Texas test.
As the TSA has radically changed its searching methodology, the legality of its methods is now in question. In Hartwell, then-Circuit Judge Alito added in a footnote that the court “[did] not purport to set the outer limits of intrusiveness in the airport context”. Hartwell, 436 F.3d at 180. The message sent by this footnote was clear: the court had no intentions of giving the TSA a blank check for any and all searches, and thus search methods (and perhaps individual searches themselves) will be reviewed de novo. Because the TSA has now adopted a security methodology that involves both nude “photographs” and “enhanced” pat-downs, there may very well be standing for the courts to re-examine the legality of TSA searches, as the court’s approval of the search in Hartwell is now antiquated and likely inapplicable to the TSA’s latest search methods. In other words, because the TSA has increased the invasion of individual liberty with no tangible benefit to the public interest, the courts may very well have a strong reason to hold these new searches unconstitutional per the Brown v. Texas test.
Even assuming the flaws of the new TSA methodology, some persist in arguing that the values of these procedures outweigh the costs. An argument can be made that airline passengers willingly subject themselves to TSA searches, as they could simply abstain from air travel if they objected to these searches. Ignoring the effectiveness of the backscatter machines entirely, some also argue that the “security theater” effect of the searches may effectively deter criminal activity even if the machines themselves are useless. Both of these arguments are flawed. Airline travel has been a mainstay of American travel ever since it was commercialized, and requiring Americans to forfeit their 4th Amendment rights to exercise their right to travel is ridiculous, not to mention unrealistic. Furthermore, perceived mental benefits from draconian search procedures do not justify government expenditures and rights violations. No matter how you look at it, the search procedures of the TSA are unjustified in terms of their expense and ineffectiveness, especially considering the rights they violate every day.
The courts may be the only way to motivate the TSA to change their methods. While National Opt-Out Day gained quite a bit of traction, it nonetheless has done very little to persuade the TSA or Congress. Unfortunately, but perhaps predictably, President Obama has adopted a passive “better safe than sorry” approach regarding the new procedures. While one might wish that such issues could be resolved through the political process rather than through litigation, it may ultimately take the force of the courts to save Americans from the TSA.
