A Round Tuit (24)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Eric Goldman undoubtedly summed-up the Viacom-YouTube smackdown best this week:

Who doesn’t enjoy a good old-fashioned mud-slingin' showdown? That’s exactly what we’ve got on our hands in the dueling summary judgment motions from Viacom and YouTube in the long-running copyright infringement case (see my initial post from March 2007). While we might have some voyeuristic fun watching the sparks, the latest salvos prove that the parties are both losers for not finding a way to settle this case. Only the lawyers win when two heavyweight contenders get locked into a cosmic death struggle. Everyone else would be better off if Viacom and YouTube instead had poured their millions of dollars of legal fees towards developing innovative and profitable ways to serve consumers’ interests. It’s ridiculous that they can’t find a way to do this.

The stakes are certainly high enough. Is YouTube, formerly a brash startup and now a jewel in Google's crown, a "Video Grokster" built on the theft of others' copyrighted works or a responsible player which does more than the (often ambiguous) law requires to protect those works? The dueling motions for summary judgment filed by Viacom and Google paint, as Goldman puts it, "a 'Tale of Two YouTubes'", with Viacom's brief focusing "on YouTube of Yore, circa 2005-06, while YouTube’s brief largely focuses on YouTube of Now. In that sense, the briefs largely talked past each other."

Mike Masnick covered the exchange often and insightfully. On balance, he concluded that Google's brief described the stronger position of the two; he highlighted a number of weaknesses in Viacom's arguments:

[N]owhere does Viacom explain how YouTube employees could distinguish which content was actually infringing and which was put up for promotional purposes or what was fair use. This is a major weakness in Viacom's motion.

Viacom's secondary arguments get weaker as you go down the list. It argues that because YouTube uses advertising to make money, that shows the company directly profits from infringement. That argument makes no sense -- because it would effectively wipe out any safe harbors for any commercial operation, which clearly was not the intent of Congress.

....

Viacom argues that Google could have blocked uploads with fingerprinting technology it had licensed, but fails to note the massive weaknesses in those fingerprinting technologies (which we still see thanks to Google's bad automated takedowns). It tries to bolster this argument by saying that Google refused to use the fingerprinting on Viacom content unless Viacom agreed to license its content to YouTube.... The way the fingerprinting works is that Google would need copies of the content to be able to recognize them -- and the only way to do that is if Viacom licensed works to them.

....

The crux of Viacom's argument rests on trying to break the DMCA safe harbors because Google and YouTube execs knew that there was a lot of infringing content on the site. But Viacom's argument breaks down entirely when you realize it doesn't explain how Google could ever make the actual determination of which videos are infringing. Viacom tries to get around this with some legal tap dancing, basically saying that it doesn't matter and Google just should have known what was infringing and what was not. But that makes no sense. Viacom is basically saying Google should have had a magic wand to figure out what's infringing and make it disappear. That's impossible. No law could possibly require Google to do the impossible. The fact that some of the videos Viacom sued over were uploaded by Viacom itself proves this point clearly.

He found Google's discussion of Viacom's own questionable marketing activities compelling:

Viacom tries to brush off the fact that it uploaded many videos itself, by saying (in a footnote) that most of those videos were clearly designated as being from Viacom. Google counters by pointing out that (a) this is not true and (b) Viacom repeatedly disguised who uploaded those videos on purpose -- even quoting Paramount's SVP of marketing saying that the clips "should definitely not be associated with the studio -- should appear as if a fan created and posted it." Among the users who uploaded Viacom clips on behalf of Viacom itself?

MMysticalGirl8, Demansr, tesderiw, GossipGirl40, Snackboard and Keithhn

On top of that, they registered with non Viacom email addresses, and even went to the local Kinkos to avoid uploading from Viacom directly. How Google was supposed to distinguish those clips from those uploaded by random users is not explained anywhere by Viacom, which is a hugely damning point against Viacom's case.

Further damning to Viacom's case -- the fact that Viacom regularly had to backdown on its takedown notices after it was realized that the takedowns were incorrect. This is a point that we've made before and is driven home repeatedly in Google's filing. If Viacom itself can't get it right -- when it holds the copyrights and some of the videos were uploaded by itself -- how the hell is Google supposed to know which videos are legit and which are not?

Masnick suggested that Viacom's underhanded "stealth" marketing might just put the company in the Federal Trade Commission's crosshairs: "While certainly helping Google make the point that it's ridiculous to expect it to know which videos were legit and which were infringing, these also seem to certainly violate the spirit of the FTC's recent guidelines on questionable 'stealth' marketing practices."

Others saw the balance tilted more in Viacom's favor. Eriq Gardner was impressed by the damaging e-mails amongst YouTube's founders and the picture these painted (whether in context or out being a matter of some dispute) of a group of entrepreneurs willing to ignore copyright law to boost traffic to their site and more concerned with appearing to enforce the rules than actually enforcing them:

YouTube has proclaimed a "safe harbor" from liability under USC 512(c) thanks to efforts to respond dutifully to takedown requests. But Viacom goes out of its way to present the case that YouTube was founded upon and continues to exist as the result of intentional copyright abuse.

....

The brief positions Google/YouTube as "not just innocent and unwitting accomplices to infringement perpetrated by YouTube users" but rather liable for infringement they intentionally made possible in the interest of growing the website."

Viacom argues that the Digital Millennium Copyright Act provides no safe harbor due to "actual knowledge" of infringing activity and cites Google/YouTube's reluctance to use abilities to "control such activity." Finally, Viacom argues that YouTube is more than a web-hosting service but rather predicated on the public performance of videos, much like a television station.

These are all pretty strong arguments. Viacom clearly wants to hang its adversary by the neck of their own mouths. We understand how the lengthy discovery proved fruitful and why Google wished to keep much of this under seal.

Scott Vine also discussed the damaging discussions amongst YouTube's founders, Chad Hurley, Steve Chen, and Jawed Karim, as well as the gaps in the recollections of some key players on the YouTube/Google side:

Even more damning a memorandum personally distributed to YouTube’s entire board of directors by Karim just 6 months before the sale to Google stated: ” As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 91 1, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptivelv removing content that is blatantly illegal and likely to attract criticism. ”

Viacom then turns to Google – who it commends for running a totally legal rival video hosting service, Google Video, before its purchase of YouTube for $1.8 billion in October 2006. It points to internal Google documents where Google identified YouTube as “a rogue enabler of content theft”; “business model is completely sustained by pirated content”, and “it’s a video Grokster”.

It seems Hurley was not the only person to have difficulty finding and remembering what happened in the early days. When asked to produce any relevant documents including emails that dealt with the acquisition of YouTube, Google CEO Eric Scmidt managed to find just 19. He explained this by stating it had “been my practice for 30 years to not retain emails unless asked specifically” – this from a company that launched Gmail in 2004 so people would never have to delete an email again. Viacom also point to the testimony of Larry Page who apparently could not even remember whether he was in favour of Google buying YouTube or not.

While their briefs were directed toward the legal decision makers, Viacom and Google did not neglect to try their cases in the court of public opinion as well. Viacom issued a statement which characterized YouTube as the most wretched hive of scum and villainy this side of Mos Eisley:

Google bought YouTube because it was a haven of infringement. Google knew that YouTube’s popularity depended on infringing materials with several senior Google executives warning that YouTube was a “rogue enabler of content theft.” Instead of complying with the law, Google willfully and knowingly chose to continue YouTube’s illegal practices.

Google and YouTube had the technology to stop infringement at any time but deliberately chose not to use it. They would only offer to protect Viacom’s content if Viacom agreed to license those works, effectively holding copyright protection as ransom for a license.

The law is clear that Google and YouTube are liable for their infringement. The Supreme Court unanimously held in Grokster that a service that intends infringement is liable for that infringement. No case has ever suggested that the DMCA immunizes rampant intentional infringement of the sort Google and YouTube have engaged in.

These facts are undisputed. The statements by Google regarding Viacom activities are merely red herrings and have no relevance on the legal facts of this case.

To summarize, MMysticalGirl8, GossipGirl40, Snackboard, and the other red herrings have one final thing they want you to consider: "Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense! Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!" By the way, wouldn't "Snackboard and the Red Herrings" be a great band name? I digress. In reply, Zahavah Levine, YouTube Chief Counsel, touched on those red herrings and put things into perspective:

With some minor exceptions, all videos are automatically copyrighted from the moment they are created, regardless of who creates them. This means all videos on YouTube are copyrighted -- from Charlie Bit My Finger, to the video of your cat playing the piano and the video you took at your cousin’s wedding. The issue in this lawsuit is not whether a video is copyrighted, but whether it's authorized to be on the site. The DMCA (and common sense) recognizes that content owners, not service providers like YouTube, are in the best position to know whether a specific video is authorized to be on an Internet hosting service.

Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices.

Amidst the fingerpointing between Viacom and Google, Fred von Lohmann focused on the "YouTube of Yore" versus "YouTube of Now" characterizations noted by Eric Goldman:

One surprise from Viacom is a concession that it basically has no beef with YouTube as it has been run since May 2008: "[W]e do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom's summary judgment motion is granted, do not intend to do so at trial." What happened in May 2008? That would be when YouTube launched its Content ID system, enabling copyright owners to "claim" their content and decide whether it will be blocked or monetized on YouTube.

In other words, this case isn't really about YouTube (at least YouTube circa 2010). It's about Viacom's effort to get the court to re-write the DMCA safe harbors to require everyone else to implement (and pay for) copyright filtering. If Viacom succeeds, it would radically change the innovation environment for all Internet companies that depend on the DMCA safe harbors.

....

[W]hat Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft's Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the "send file" features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than the murky standards for "secondary liability." If Viacom is right, then there are no clear rules to follow, except "beg permission from every copyright owner first." And that's a rule that would hobble innovation and competition online.

Mike Masnick suggested that Viacom's endorsement of the "YouTube of Now" (after implementing filtering technology) indicates their "real intent":

Viacom is claiming that the DMCA requires filters. Yet, the DMCA is explicit that this is not true, and always has been. In fact, if I remember correctly, Paramount Pictures top lawyer (Paramount is a Viacom subsidiary) said in a discussion we wrote about last year, that he felt the current DMCA was deficient, in that it had a notice-and-takedown provision, rather than requiring proactive monitoring.

....

No one is saying that copyright infringement should be allowed on YouTube. The only question is whether or not it should be YouTube's responsibility to proactively monitor that content and stop it from being uploaded. The law is pretty clear that this is not required -- and, as Google's filing makes clear, even if it were required, given Viacom's own actions, this would be impossible.

This is certainly a case worth watching closely; whether you choose to watch on an authorized channel or on a haven of infringement is, of course, entirely up to you.

I feel sorry for our nation's youth. With all this "sexting" going on, these impressionable and naïve children are harming themselves and one another, perhaps irreparably in some instances.

You know who I feel sorry for more than our nation's youth? Myself. I was born after the Summer of Love, was too young for the sexual revolution, came of age in an era of protected sex and fear of AIDS, and am now too old and fat for sexting. Timing is everything.

Well, I suppose that timing is but one thing; location is another. Here's a pro tip: if you're underage, don't get caught sexting in Tunkhannock, Pennsylvania. But before I discuss sexting in Pennsylvania, did you know that you can't spell "Pennsylvania" without p, e, n, i, and s? I won't even tell you what "Tunkahannock" means in the local Native American dialect. Disgusting.

Anyhow, it seems that in Tunkahannock a kind-hearted prosecutor wanted to give a few local misguided youth a second chance after they were caught sexting or, as it's known in Tunkahannock, "participation in the distribution of child pornography". Contacting parents with threats to prosecute their children for sex crimes unless they set their Constitutional rights aside to attend moralizing lectures seemed like a great idea straight out of Angels With Dirty Faces, but as Ashby Jones reported, the Third Circuit wasn't buying it.

Eugene Volokh explained the decision in Miller v. Mitchell: "[T]he prosecutor (1) threatened to prosecute plaintiff’s daughter (2) even though it turns out he didn’t have probable cause for a prosecution (3) unless the daughter went through the “education program.” All three elements, it turns out, seem to be crucial to the decision." The court found that the "education" program requirement hit the trifecta — it violated parental rights, violated children's First Amendment right against compelled speech, and threatened government retaliation for the exercise of Constitutional rights.

Notwithstanding this clear condemnation, the court emphasized that the real problem was that the prosecution lacked probable cause — a number of the allegedly pornographic photos were hardly even risqué and no effort was made to connect those pictured to the distribution of the photos. This leaves open the question whether a prosecutor whose threats are less obvious or whose potential case is better-founded could get away with the conduct struck down in Miller. In a follow-on post, Volokh suggested that this decision, in conjunction with existing retaliatory prosecution law, was an important limit on other prosecutions:

What’s noteworthy about this Third Circuit decision is that it says there is something wrong with threatening a defendant — especially a juvenile defendant — with prosecution if she refuses to take a class.... And while [the decision] says that retaliatory prosecution can’t form the basis for a damages action unless there’s probable cause to prosecute, well-settled retaliatory prosecution law holds that retaliatory prosecution for constitutionally protected speech (and, presumably, the defendant’s parents exercise of their parental rights) is a defense to the criminal charge. So while the Circuit says that “if probable cause exists, the injunction must be lifted,” and the prosecution will be allowed, the prosecution will be futile, again even if there’s probable cause to prosecute.

Jeff Gamso was less optimistic that this case be a restraint on other prosecutions; he suggested that in this instance, the prosecutor "left the smoking gun" and others will be more circumspect:

It's always nice, and far too rare, to see a prosecutor slapped around for being a heavy-handed, moralistic, jackass.

....

Most prosecutors don't make such overt, public threats, on the record.

In fact, people are arrested and prosecuted every day for exercising their constitutional rights. Sometimes the charges are eventually dismissed. Sometimes the defendants are found not guilty. Every time there is damage - arrest, jail time, public opprobrium, loss of income, maybe of family, the not-inconsiderable cost of hiring counsel, and that's just for a start. But there was no smoking gun, no prosecutor declaration that "I'm going after this guy for what he says or what he thinks or how he looks or what he does that the law and the constitution protect."

It's not hard to find those cases.... Just open the newspaper.

Good for the Third Circuit to prevent heartbreak and slap [Prosecutor George] Skumanick around. Too bad it won't happen more.

Emily Bazelon agreed that this was a case study in how not to prosecute sexting, but was was otherwise essentially sui generis:

In the end, George Skumanick is such an outlier that his loss on appeal won't mean all that much in terms of setting precedent. Other prosecutors can find ways to be hard-charging about sexting. The problem for the court here was the retaliation for not attending the education program, after all, not the idea of the prosecution in itself. But as organizations like the National District Attorneys Association back away from harsh reprisals against teens who sext in most contexts, the 3rd Circuit's ruling has a like-minded ring of sanity. A girl who poses in her bra while making a peace sign, or whose photo is snapped while she's coming out of the shower in a towel, shouldn't have to sit in class for months while a prosecutor's office schools her on female identity. Or anything else.

In other criminalization-of-youthful-hijinks news, Marc Randazza discussed an unusual (we hope) announcement at a New Jersey Wal-Mart store:

A 16 year old boy grabbed a public address system microphone at a New Jersey Wal-Mart store and said “Attention, Wal-Mart shoppers: Will all the black people please leave the store. Thank you.” He and his friends then ran out of the store, and were off to more of whatever it is 16 year old dipshits do.

For some reason, this incident sparked an investigation that finally led to this dangerous scofflaw being apprehended.

....

Is this what we have come to? A 16 year old kid engages in a stupid prank. Everyone knew it was a prank. “Witnesses said store officials took about 5 minutes before announcing that the statement was a prank and apologizing.”

Instead of that being the end of it, there was a police investigation, and a police press conference, and this 16 year old moron has to face the possibility of a year in jail?

In my opinion, the only person in this equation who belongs in jail is the dipshit cop who decided that this incident required not only a police investigation, but an actual arrest.

Perhaps he'll get some time knocked-off for concluding his announcement with "Thank You"? Scott Greenfield was similarly dismayed that an obvious prank — however offensive — has led to a criminal prosecution:

Harassment statutes are deliberately vague and meaningless, as they are meant as a catch-all for conduct that people think should happen and have to be written in such a way as to cover a broad array of conduct. As bad conduct goes, this comes relatively close to something that, at least arguably, is covered.

But do we really want to put kids into jail, or even saddle them with a conviction, for pulling stupid pranks where no harm occurs? This remains a great teaching moment, both for the kid as well as the rest of us. Are we afraid he's going to become a serial prankster, roaming from Wal-Mart to Wal-Mart, trying to sneak onto the announcement system?

If he does it again, throw the book at him. This time, let's turn one incredibly stupid act into something positive. And that doesn't include the standard prosecutor announcement that this kid's going down. Every stupid and offensive act does not require a prosecution.

As Ken Lammers noted, several legal bloggers recently discussed bad criminal defense attorneys and the clients who love them; he produced a handy field guide to recognizing the various types, from the true believers and the overly-empathetic to the raging asshole and the BigLaw partner out of his element in criminal court. The commonality amongst them is that, good intentions or bad, all are failing when their clients need them the most.

The clients of public defenders are failed as often, and most likely more often; there's certainly as much variation in the competency and performance of public defenders as there is in the private criminal bar and the scarcity of resources and excessive caseloads diminish the effectiveness of even the most competent public defenders. Jeff Gamso read recently of a couple of public defense failures which can't be chalked-up to excessive caseloads or cuts in budget; he noted that a defendant urged to to plead guilty to a felony, serve several months in jail, and spend several years on probation was failed by her counsel — her offense was a misdemeanor which wouldn't ordinarily carry a serious penalty, information her attorney ignored. Acknowledging that such clear instances of incompetence exist in public defense, Gamso wrote that resources are root of the problem:

Indigent defense is problematic pretty much everywhere - even when it's superb - because at some point the system, and in particular its funding, is in the hands of the government. And indigent criminal defendants don't have a great lobby and don't make big campaign contributions.

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Public defense at its best provides superb representation. There are places and settings (and lots of individual public defenders and appointed counsel) who provide that level of representation on a regular basis. But the system doesn't. Not broadly enough, anyway.

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That just makes me more sure that these cases are important. If standing up for our clients is what we do (the rest is mechanics and details), if we understand that the clients, rich or poor, are on one side and the weight of the government is on the other, then the Sixth Amendment right to counsel needs constant and vigorous defense precisely because the clients have no lobby and don't make big contributions.

It's often said that public defense comprises good lawyers (with a few bad apples here and there) attempting with little-to-moderate success to manage excessive caseloads and to defend their clients without adequate resources. Mike Cernovich suggested that a double standard exists — individual police misconduct is highlighted and used to attack "the system", but the incompetence of many within the public defender system is papered-over in favor of ascribing all weakness in that system to lack of resources specifically and racial or economic prejudice more broadly. He discussed "the dirty truth about public defenders" and the similarities between defenses of the public defense system and the "blue wall of silence":

Criminal defense lawyers often decry the blue wall of silence. Why don't police officers speak out about corruption? Yet criminal defense lawyers defend the indefensible public defense system.

There isn't a criminal defense lawyer reading this post who would, if charged with a crime, choose to be thrust into the public defense system rather than hire counsel. Sure, you know a guy in the office you'd entrust with your case if he had the time to spend on your case.

You'd go into the public defender's office if - unlike poor people - you could choose your lawyer, and demand that he not treat you like another piece of meat on the assembly line. Which means, in reality, you do not trust the public defender system.

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Aren't public defenders who allow incompetent colleagues to take on clients the Burkean men who allow evil to flourish by doing nothing? If we were talking about police rather than public defenders, you know how you'd answer, don't you?

"They are overworked, and their caseloads are too high." Why don't you demand that public defenders go on strike? Bring the system to a halt. That's what you demand of police: Speak out, even if it means risking your job. Well, why don't you demand that public defenders risk their jobs to improve the system?

The general defense of public defender is to ignore the individuals, while attacking the system. Yet when criticizing police misconduct, criminal defense lawyers attack both the system and the individuals who are part of the system. After all, change is possible only when those on the front line take bold action.

Gideon, a public defender himself, couldn't disagree more with Cernovich's take:

The fault in the system lies with the players, he essentially argues. That the good lawyers are few and far between. That there is no internal management, no checks, no corrections for poor performance and that we support one another blindly.

On one hand, I think it overestimates the authority that one colleague has over another. On the other, I think the points he makes are somewhat valid. While I would not hesitate for a second to place my liberty in the hands of those I work in close proximity with, there are several public defenders that I wouldn’t let within 5 miles of own criminal case. But this isn’t the issue in the fight for adequate funding or the fight against ineffective lawyers. Any lack of training or oversight or personal responsibility can be traced directly back to the issue of money.

As it is, public defenders are underpaid. The resources they are given are meager. They’re routinely ridiculed, demeaned and dismissed. Even those that work tirelessly for their clients are compared unfavorably to the “real lawyers” that the client could hire, only if he had money. We’re the backup to the backup.

This perception won’t change if I decide to go on strike. This perception won’t change if I step in front of an overworked colleague and prevent him from misrepresenting a client.

Agree or disagree with this particar viewpoint, you'd be hard-pressed this week to find a legal blogger who wrote more persuasively on difficult subjects than Gideon did. Two other of his posts deserve your attention: one concerning proposed restrictions on the right of Habeas Corpus in his home state of Connecticut and another which discussed proposed residency restrictions for sex offenders. As he put it, some of what he writes "is extremely rude and vitriolic. But if you don't read it, you support terrorists." I couldn't agree more. Go Gideon! Beat Osama!

From Osama to Obama (still different people, despite what you may have heard on Fox News), this was the week when Obamacare officially took over our lives and our grandchildren's bank accounts. How exactly the federal government has the Constitutional authority to compel citizens to purchase health insurance is a bit murky at this point. Speaker Nancy Pelosi famously said that Congress had to pass the healthcare bill so that the hoi polloi could find out what was in it; perhaps now that it's passed, she can explain how it's Constitutional (assuming she's concerned about such trivialities). Though many have suggested that the bill falls under the government's very broad commerce power, others have suggested that it's defensible under the taxation power. This prompted David Kopel to explore whether the tax power has limits:

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.

A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.

It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in instrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.

The Constitutionality question is no longer an academic thought exercise; as Ashby Jones reported, the ink was not yet dry on Obamacare before numerous states' attorneys general filed a lawsuit to stop it:

The suit makes a variety of assertions:

First, it alleges that Congress, in passing the bill, overstepped its authority; that the Commerce Clause of the Constitution does not grant Congress the power to pass so sweeping a law;

Second, the plaintiffs allege something we, frankly, didn’t see coming — that the bill deprives the states a “Republican Form of Government,” in violation of Article IV, Section 4 of the Constitution;

Third, it asserts that in passing the law, the feds have encroached on state sovereignty, in violation of the Tenth Amendment to the Constitution;

Fourth, it alleges that the provision of the bill mandating that all Americans purchase health care or be fined constitutes an unconstitutional tax that violates Article I, Sections 2 and 9.

Though he's no fan of either the Obamacare legislation or modern commerce clause doctrine and would dramatically change both if he could, Orin Kerr is not putting his money on the attorneys general:

I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

Kerr's co-blogger Jonathan Adler is slightly more optimistic — but only just:

[W]hile I think judicial rejection of the mandate is unlikely, I hardly think the chances are as remote as Orin suggests.

....

It is also worth speculating on the politics of the individual mandate by the time any legal challenges reach the Court. If, as many believe, the Court is somewhat responsive to political pressures and popular sentiment, this could influence how the Court evaluates arguments that Congress has gone too far. If recent polls are to be believed, a substantial majority of Americans oppose the health care reforms passed by Congress, and those who strongly oppose the reforms outnumber those who strongly support them by about two-to-one. Striking down a popular health care provision would be a risky course for the Court. But what if unhappiness with health care reform were to fester and grow? What if the only thing preventing repeal were to be the same supermajority requirements that almost killed health care reform in the first place? Were this the case, the Court would not be picking a fight with the political branches so much as it would be reaffirming the popular will. In such a case, a Court decision against ObamaCare would not provoke howls of protest so much as sighs of relief.

In closing, let me also stress that the arguments against the individual mandate are anything but frivolous.... And while it’s a relatively safe bet to predict the Court will reaffirm federal power if pressed, the Court has confounded such expectations before — and there’s a non-trivial chance it could do so again.

Do I hear one percent? One percent? One percent? Thank you, Mr. Kerr! Do I hear ten percent? Ten percent? Eight percent? Five percent? Come now, five percent, gentlemen? Five percent? How about "a non-trivial chance"? Excellent, Mr. Adler! Thank you, sir! Now, can I hear moral support for these fine attorneys general? Anyone? Yes, I see Scott Greenfield, the Virginian from New York:

Within minutes of President Barack Obama signing health care reform into law, the attorney general of Virginia (and maybe 13 other states) will file suit against the United States of American to block imposition of the mandate as being unconstitutional. The basis for this suit will be that the federal government has exceeded its authority under the commerce clause. I stand with the Virginny AG.

The argument that Congress has applied the commerce clause with Hamiltonian abandon such that it covers everything short of a dirty look between spouses under some ill-conceived theory that the air molecules moving through the lungs of Americans originated in some foreign state has long been troubling. Virginia says it's unconstitutional. I do too.

No particular reason to mention at this moment that if Virginia prevails, every federal criminal law and regulation enacted within the past 50 years is also unconstitutional.

....

Forget the odds, Virginia. Go for it. Stand up to those usurpers in Washington. Don't let them tell you that you can't win.

Go Virginia! Fight, Fight, Fight!

Ah well, win or lose, it's not the end of the world... is it? Richard Eisenberg wondered the same thing this week:

Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.

The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.

It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously – and now ironically – thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what – save some other constitutional restriction – it cannot require you to do – or prohibit you from doing.

I appreciate that many people – including most of my colleagues in the legal academy – see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won’t.

The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to “get it right.”

I am not very comfortable. I am not very confident.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., techshout.com, the East Riding of Yorkshire Council (Thomas Savage, A Child Criminal), and Paris Odds n Ends Thrift Store.