No harm, no foul in Joe the Plumber’s First Amendment case

Samuel Joseph Wurzelbacher

Samuel Joseph "Joe the Plumber" Wurzelbacher

What’s Samuel Joseph Wurzelbacher — you know him better as “Joe the Plumber” — been up to lately?

In the 2008 presidential campaign, John McCain, Sarah Palin and the media made Wurzelbacher the icon for Republican opposition to then-Senator and candidate Barack Obama’s economic policies.

Obama was campaigning in Wurzelbacher’s neighborhood. Wurzelbacher asked Obama about the potential tax consequences of opening a plumbing business. Obama’s reply included a statement that he wanted to “spread the wealth.”

The exchange was caught on video and soon after, McCain, during a presidential debate, dubbed Wurzelbacher as “Joe the Plumber.”

Wurzelbacher became a media darling, dispensing criticism of Democratic policies in general and Obama’s in particular.

He’s capitalized on that by running for Congress in Ohio’s 9th District. Earlier this month, he won the Republican primary and will face incumbent Democrat Rep. Marcy Kaptur in the November general election.

He’s also been watching a federal First Amendment and privacy rights lawsuit that he filed swirl right down the drain.

Wurzelbacher’s exchange with Obama drew more than just media attention.

According Wurzelbacher’s suit, several days after his Oct. 12, 2008, encounter with Obama, three high-ranking officials in the Ohio Department of Job and Family Services, all Obama supporters, huddled together. They decided to authorize searches related to Wurzelbacher on child-support enforcement, welfare and unemployment databases, which were at their disposal.

Did they uncover any dirt? We’ll never know because the search results were never made public. But what became known, after the Office of the Ohio Inspector General made inquiries, was that the searches took place.

Wurzelbacher’s suit alleged that all three officials were suspended, and when the dust settled, two had resigned and the third was fired.

He alleged First Amendment and privacy right violations, claiming his exchange with Obama motivated the searches.

The federal district court granted defendant officials judgment on the pleadings.

In the Sixth Circuit, Judge Richard Griffin noted:

In order to adequately plead a First Amendment retaliation claim, a plaintiff must allege:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.

Griffin, joined by Judges Julia Gibbons and Bernice Donald, agreed with the federal district court that Wurzelbacher came up short on pleading an “adverse action.”

He asserts that defendants, without his knowledge, performed several improper database searches under his name. However, the complaint contains no information regarding what, if any, information was discovered. Moreover, if any information was obtained, it was never publicly disclosed. …

Wurzelbacher did not suffer a threat to his economic livelihood … was not defamed … did not endure a search or seizure of property … and did not experience the public disclosure of intimate or embarrassing information … .

In addition, Wurzelbacher was not threatened with a continuing governmental investigation, and he does not allege that defendants’ actions in fact caused a “chill” of his First Amendment rights.

As to that last point, it’s tough to imagine how he could have possibly done so.

The appeals panel also ruled that informational privacy rights are violated when released information may lead to bodily harm or concerns matters of a sexual, personal or humiliating nature.

Wurzelbacher pleaded none of this.

No harm, no foul.

The case is Wurzelbacher v. Jones-Kelley, et al.

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6th Circuit finds health care mandate constitutional

The Sixth Circuit affirmed the U.S. District Court judge’s finding that the health care mandate of the Patient Protection and Affordable Care Act is constitutional under the Commerce Clause.

U.S. District Court judge George Steeh had found the mandate falls within the Commerce Clause because:

(1) the provision regulates economic decisions regarding how to pay for health care that have substantial effects on the interstate health care market; and (2) the provision is essential to the Act’s larger regulation of the interstate market for health insurance.  Because the district court found the provision to be authorized by the Commerce Clause, it declined to address whether it was a permissible tax under the General Welfare Clause.

In Thomas More Law Center v Obama, a 6th Circuit panel consisting of Judges Boyce Martin, Jeffrey Sutton and U.S. District Court Judge James Graham (Ohio) agreed.

Writing for the majority opinion, Martin said the law falls within the Commerce Clause because it

There is debate over whether the provision regulates activity in the market of health insurance or in the market of health care.  In the most literal, narrow sense, the provision might be said to regulate conduct in the health insurance market by requiring individuals to maintain a minimum level of coverage.  However, Congress’s intent and the broader statutory scheme may help to illuminate the class of activities that a provision regulates.  The Act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader health care market.  Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring.  Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs.
Thus, set against the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation on the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services. 

By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons.  First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce.  In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.

Martin also said that, even if the mandate wasn’t economic activity under the Commerce Clause, it would still be constitutional because it’s part of a larger regulatory scheme for interstate health insurance markets.

Martin also shot down the challenge based on the idea that Congress can’t regulate inactivity by fining those that choose not to buy insurance:

Similarly, this Court has also refused to focus on imprecise labels when determining whether a statute falls within Congress’s Commerce Power.  For example, we rejected the argument that the Child Support Recovery Act is unconstitutional because it regulates an individual’s failure to place an item in commerce.  Instead, we held that Congress had a rational basis for concluding that a non-custodial spouse’s failure to send court-ordered child support payments across state lines substantially affects interstate commerce. Here, too, the constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable
label.  Congress had a rational basis for concluding that the practice of self-insuring for the cost of health care has a substantial effect on interstate commerce, and that the minimum coverage provision is an essential part of a broader economic scheme.  Thus, the provision is constitutional notwithstanding the fact that it could be
labeled as regulating inactivity.

Graham dissented from Martin’s Commerce Clause analysis, arguing the law doesn’t regulate “the commercial activity of obtaining health care,” but “the status of remaining uninsured.” His dissent ends like many do, with the slippery slope argument.

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.  What aspect of human activity would escape federal power?  The ultimate issue in this case is this: Does the notion of federalism still have vitality?  To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. …  Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.  A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

Take a bite out of the Kagan Burger, and you’ll get a taste of Obama, too

Politics make strange bedfellows. But it looks like they also make for a tasty sandwich.

Turns out that Mr. Bartley’s Gourmet Burgers, a storied Cambridge, Mass., haunt near Harvard, recently added the Elena Kagan Burger to its menu.

Yet, the $10 burger wasn’t intended to honor the former Harvard Law School dean who’s President Obama’s pick for the Supreme Court. Rather, the move was, in part, a political statement.

“It has a liberal amount of salsa, grilled pineapple, because of the Obama connection — she’s cozy with Barack and he’s from Hawaii — and it comes with onion rings,” general manager Billy Bartley told The Boston Globe.

“I thought the coziness [between] her and Barack was inappropriate, but what do I know? I thought a Supreme Court justice should be further from the president than she is.”

The burger’s menu description shows that the sandwich wasn’t exactly created with love for the nominee. “Experience??? ‘Don’t ask, don’t tell,’” the menu reads, according to The Harvard Crimson. It presumably refers both to the fact that Kagan has never been a judge, and to her stance on the military’s policy on gays.

But Bartley revealed to the Globe another motivation behind the burger, and it’s about as American as it gets: “For the attention, so I can make money.”

Justice Stevens leaving SCOTUS at end of term

From the Associated Press:

WASHINGTON (AP) — Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.

Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed "well in advance of the commencement of the court’s next term."

Stevens’ announcement leaves ample time for the White House to settle on a successor and for Senate Democrats, who control a 59-vote majority, to hold confirmation hearings and a vote before the court’s next term begins in October. Republicans have not ruled out attempts to delay confirmation.

Stevens’ announcement had been hinted at for months. It comes 11 days before his 90th birthday.

Throughout his tenure, which began after President Gerald Ford nominated him in 1975, Stevens usually sided with the court’s liberal bloc in the most contentious cases — those involving abortion, criminal law, civil rights and church-state relations. He led the dissenters as well in the case of Bush v. Gore that sealed President George W. Bush’s election in 2000.

Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Obama’s presidency.

Chief Justice John Roberts said in a written statement that Stevens "has enriched the lives of everyone at the Court through his intellect, independence, and warm grace."

Senate confirmations of Supreme Court justices have increasingly become political battles and this one will come amid the added heat of congressional election campaigns.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, appealed for civility. "I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse," Leahy said.

Looking toward those hearings, Senate Republican Leader Mitch McConnell of Kentucky said, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law."

Stevens informed Obama in a one-paragraph letter addressed to "My dear Mr. President." It was delivered to the White House by court messenger at 10:30 a.m. EDT, two minutes before the court’s public announcement. The news came on a day when the court wasn’t in session.

White House counsel Bob Bauer telephoned the news to Obama on Air Force One, as he returned from a trip to Prague.

The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, in Washington and Diane Wood, 59, in Chicago.

Stevens’ departure will not change the court’s conservative-liberal split because Obama is certain to name a liberal-leaning replacement, as he did with his first nominee, Justice Sonia Sotomayor. But the new justice is not likely to be able to match Stevens’ ability to marshal narrow majorities in big cases.

Stevens was able to draw the support of the court’s swing votes, now-retired Justice Sandra Day O’Connor and Justice Anthony Kennedy, to rein in or block some Bush administration policies, including the detention of suspected terrorists following the Sept. 11, 2001, attacks, its tilt toward protecting businesses from some lawsuits and its refusal to act against global warming.

But after the arrival of Roberts and Justice Samuel Alito, President George W. Bush’s appointees, Stevens more often was among the four liberal justices in dissent.

Stevens’ recent dissent in a major case involving campaign finance laws showed both the eloquence of his writing and, in his stumbling reading of his opinion in the courtroom, signs that his age might at long last be affecting him, though he remains an active tennis player and swimmer.

He is the court’s last World War II veteran and that experience sometimes finds its way into his writings, recently in a reference to Tokyo Rose, the English-speaking Japanese radio announcer who addressed U.S. soldiers in the Pacific.

Stevens had a reputation as a bright and independent federal appeals court judge when Ford, acting on a recommendation by Attorney General Edward Levi, nominated him to the Supreme Court.

His friendly manner of questioning lawyers who appeared before the court could not hide Stevens’ keen mind. His questions often zero in on the most telling weaknesses of a lawyer’s argument and the case’s practical effect on everyday people.

A pleasant, unassuming man, Stevens has been a prolific and lucid writer. For many years, he wrote more opinions each court term than any other justice.

Most justices let their law clerks write the first drafts of opinions, but Stevens has used his clerks as editors.

He’d write the first draft and submit it to the clerks for comment. "That’s when the real fun begins," Stevens once told a visitor. "The give and take can get pretty fierce."

As a result, his opinions have reflected his personal writing style — a conversational one that contrasted sharply with the dry, dull efforts of some other justices.

He said recently that one sign that it would be time to retire would be an inability to churn out those first drafts. But he insisted in recent days that he was still writing them.