Recent Commentary from Inter Alia

YLPR’s online edition
Ian Millhiser
Tuesday, November 15, 2011 - 4:45pm

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden. Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. And, of course, half Congress thinks that health reform is unconstitutional.

Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution?

And yet, there is a growing movement on the American right that believes just that. Part I of this Essay begins in familiar territory: the battle over the Commerce Clause. It explains how the ubiquitous lawsuits challenging the Affordable Care Act (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart—a methodology which allows judges to impose novel and extra-textual limits upon Congress’s enumerated powers. As this Part makes clear, a legal theory that would strike down the ACA bears no resemblance to the much more modest limits on congressional power outlined by modern cases such as United States v. Lopez and United States v. Morrison. Unlike Lopez and Morrison, cases like Hammer and the two recent district court decisions striking down the ACA have no grounding in constitutional text.

Part II dives even further back into constitutional history. It explains that a growing number of prominent conservatives, including many current Members of Congress, want to revive a 230-year-old constitutional “ghoul” which would so completely eviscerate federal power that even the Lochner-era Supreme Court unanimously decided that it must remain buried. Under these conservatives’ vision of congressional power, cherished federal spending programs such as Social Security, Medicare, Medicaid, and Pell Grants would all cease to exist. The Essay concludes by briefly exploring why the emergence of these unusual constitutional views among elected lawmakers is sadly likely to influence judicial decisions in the future.

Michael Lee
Friday, September 9, 2011 - 9:15am

In the shadow of a Presidential veto, it will be impossible to repeal health care reform completely—despite the overwhelming number of additional seats Republicans won in the 2010 election. Congress could, however, strip implementation funding from the Patient Protection and Affordable Care Act (PPACA) and its companion bill, the Health Care and Education Reconciliation Act (HCERA), known jointly among detractors as “Obamacare,” and more properly as the Affordable Care Act (ACA). Defunding the health care bill has been advocated by Republican leaders such as Rep. John Boehner (R-OH) and Sen. John McCain (R-AZ), who view the ACA as simultaneously unpopular and counterproductive. The economics of the bill do appear unsustainable, and the ACA may unravel American health insurance entirely. This Essay, however, argues that because the bill functions as a single, coherent whole, even ardent opponents of the bill should avoid slashing funding. Stripping out certain provisions while leaving others intact would result in a vastly more destructive and incomprehensible package—and incalculable damage to the the party authoring the alterations.

Even if health care reform is viewed as a ticking time bomb, defunding would produce shrapnel that would be vastly more destructive than the bomb would have been on its own.

Susan P. Crawford
Tuesday, June 1, 2010 - 2:30pm

Labels are important in policy debates. The “broadcast flag” effort was very nearly successful in forcing all devices capable of receiving television broadcasts (including PCs) to be designed in order to protect “flagged” content. Who could be against a flag? By contrast, “net neutrality” advocates have had difficulty convincing anyone to care about something that sounds so, well, neutral.

One effective label that has often been used during the first two years of the Obama administration is the “looming spectrum crisis.” FCC Chairman Genachowski said in October 2009: “I believe that that the biggest threat to the future of mobile in America is the looming spectrum crisis.” As the crisis loomed, the administration—worried about the lack of spectrum allocated for high-speed Internet access—declared it would re-allocate 500 MHz of spectrum. There is a hunt on for spectrum: Every closet in every agency is being searched. Looming. Crisis.

It may be time for yet another label to enter the lists: “the looming cable monopoly.” It is gaining strength, and it is not terribly interested in the future of the Internet. This is the central crisis of our communications era.

Frank Pasquale
Saturday, May 15, 2010 - 10:15am

Bottlenecks at any layer of the Internet—physical, social, application, or content—create opportunities for the exercise of undue power over the flow of information and ideas online. Corporate forces menace both user privacy and free expression on the Internet. Market concentration lets powerful business leaders develop unprecedented digital dossiers on users. Such concentration also allows leading companies to pervasively shape culture and politics, elevating some voices and silencing others.

The privacy and First Amendment cases for net neutrality are compelling. But net neutrality’s opponents are inverting the debate by asserting their own rights to “free speech” and asserting a form of corporate privacy-trade secrecy. While Christopher Yoo’s theory of “architectural censorship” has not yet vindicated Internet Service Providers’ (ISPs) claims to expansive First Amendment rights, ISPs’ business alliances with search engines and other internet companies that monitor content may make their decisions sufficiently “speech-like” to attract protection from the current Supreme Court, thereby insulating ISP decisions from regulation and scrutiny. Classifying network management decisions as “trade secrets” could also hamper public scrutiny of and regulatory attention to ISPs’ actions. Corporate trade secrecy privileges would make it difficult for consumers to determine if their privacy rights have been violated. Corporate First Amendment protections would likely foil lawsuits (and even some regulation) designed to promote the public interest by ensuring fair, open, and neutral ordering of data flows online.

Legal argument may stop this inversion. First Amendment and trade secrecy doctrines, as applied to ISPs and seach engines, are vague, and there may be openings to establish new legal doctrines on this front that would promote the free flow of information online. But given Google’s success in advancing its legal interests, the recent collaboration between Google and Verizon in developing a “legislative framework” for network neutrality,[5] and the present composition of the Roberts Court, consumer advocates who care about individuals’ rights to privacy and free expression should start moving beyond the legal system to develop more transparent and open alternatives to increasingly unregulable networks of dominant online intermediaries.

Jonathan Zittrain
Saturday, May 1, 2010 - 10:00am

Popular imagination holds that the turf of a state’s foreign embassy is a little patch of its homeland. Enter the American Embassy in Beijing and you are in the United States. Indeed, in many contexts—such as resistance to search and seizure by a host country’s authorities—there is an inviolability to diplomatic outposts. These arrangements have been central to diplomacy for decades so that diplomats can perform their work without fear of harassment and coercion.

Complementing a state’s oasis on foreign territory is the ability to get there and back unharried. Diplomats are routinely granted immunity from detention as they travel, and la valise diplomatique—the diplomatic pouch—is a packet that cannot be seized, or in most cases even inspected, as it moves about.[1] Each pouch is a link between a country and its outposts dispersed in alien territory around the world.

Citizens and their digital packets deserve much the same treatment as they traverse the global Internet. Just as states expect to conduct their official business on foreign soil without interference, so citizens should be able to lead digitally mediated—and increasingly distributed—lives without fear that their links to their online selves can be arbitrarily abridged or surveilled by their Internet Service Providers or any other party. Just as the sanctity of the embassy and la valise diplomatique is vital to the practice of international diplomacy, the ability of our personal bits to travel about the net unhindered is central to the lives we increasingly live online.

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