08 September 2011

Just in Time for Football Season

... Judge Motz, on the Fourth Down Circuit, shows that she knows how to punt for distance on the Affordable Care Act (aka "Obamacare"). Given the controversy over "death panels," I won't make any more jokes than this one about coffin-corner punts, either.

  • Virginia v. Sibelius, No. 2011–1047 (33pp, 15 of which are caption material)

    Holding: Virginia does not have a sufficient interest in its state law providing that no one "shall require" individual purchases to have standing; vacated with directions to dismiss for lack of SMJ.

    Comment: This one is a bruised-or-no-brainer, which is all too appropriate to too much football these days...

  • Liberty University v. Geithner, No. 2010–2347 (140pp)

    Holding: The Anti-Injunction Act, 26 U.S.C. § 7421(a), "strips [the federal courts] of jurisdiction" to hear a pre-enforcement action seeking an injunction against an "assessable payment" required by 26 U.S.C. § 4980H and potentially imposed on "large employers" whose employees need further assistance with health care than provided by the employer. Vacated with directions to dismiss for lack of SMJ.

    Comment: This one is much more dangerous, because the reasoning is not quite consistent with some associational-standing decisions. Although it seems to be limited to pre-enforcement actions against a required payment to the Treasury for a hypothetical future condition precedent, I think this is a slightly overbroad reading of the AIA's prohibition on injunctions against tax collections... and I'm still to be convinced that the AIA is itself sound policy or fully constitutional itself (admittedly, it's a close call not well presented on these facts).

    The theoretical problem with the AIA is that it runs headlong into a long line of cases requiring a government actor to offer a predeprivation hearing before taking the right/property of a private citizen. The distinction made in the AIA is that it is purportedly limited to "taxes." This distinction, however, raises more questions than it answers. First, why are "taxes" special in this sense? One might argue that they are so central to the function of government that they must be treated differently from other ways that the government might take a right or property. That may, in fact, be the "right" result; it is not, however, so self-evident that it can (or should) be accepted without examination. More importantly in this case — and the reason that it's so damned long and generated a dissent — is the question of whether calling this "assessable payment" a "tax" because it appears in the Internal Revenue Code and is administered by the Treasury seems nearly the height of formalism, in the manner of defining "glory" as "a good knock-down battle." On the other hand, it also seems inane to pick on this particular bit of formalism in the Internal Revenue Code as somehow too much; consider, for example, the definition of "capital gain" (§ 1221) is less than crystal clear, less than reflexive, and less than logical; it seems to largely work, though.

    All of that said, if this panel had reached the merits, there are two clear votes (the dissent and the concurrence) to uphold § 4980H as a proper exercise of either the Commerce Clause (dissent) or tax-and-general-welfare (concurrence) powers of Congress. The plaintiffs would make a big deal about this concerning an involuntary market transaction, but they didn't think very far ahead when they raised that issue... because it applies at least equally to any objections made by taxpayers to government payments to religious groups and institutions like the lead plaintiff itself.

The next stop is going to be the Supreme Court. I think there is a high probability that the Court will sit on the petitions in these matters until a Court of Appeals fully rules on the merits (the Sixth and Eleventh Circuit rulings were only partial)... unless the rest all punt on jurisdictional grounds, which is a distinct possibility (but somewhat unlikely, particularly given the Tenth Circuit's history of pushing the envelope on subject-matter jurisdiction).

The political meaning of these decisions, taken together — in the broadest sense of "political" — is that private actors, and even subordinate political subdivisions, must be discouraged from using the courts to undo legislative acts with which they disagree, except in the most egregious circumstances. For something that is merely a matter of policy, that is, the place to fight the battle is the legislature. That the plaintiffs in the respective cases would recast a policy disagreement as an infringement of rights says a lot of very unfavorable things about them as "sore losers." Face it: Nobody is going to be 100% satisfied all the time in a democratic or other representative system that is more than mere window-dressing for oligarchy. In short, there will always be "losers" in policy battles. I'll say little more about the wretched record of the particular lead plaintiffs in these actions regarding noneconomic rights that greatly exceed any non-self-serving definition of "policy"... but I could throw out a couple of hundred citations to their respective litigation histories, beginning with Loving v. Virginia and going downhill from there.

Why does this matter to writers? Well, gee, how about writers' need for healthcare? More directly, the "assessable payment" scheme in § 4980H just might have an effect on medium- and larger packaging mills, because it's arguable that authors who are otherwise freelancers but are doing only work for hire for those packaging mills are "employees" under the prevailing fifteen-factor test. (I have three packaging mills specifically in mind here.) And it's not just writers, either; consider the production line that produces Thomas Kinkade's dreck...

In any event, it matters. It's too bad that I think this punt is going to be called back for illegal procedure without a ruling on the merits to compare it to...