Jan 19, 2014

Updated Article: “What Happens If Data Is Speech?”

My new article, “What Happens if Data is Speech,” will be published in the University of Pennsylvania Journal of Constitutional Law’s Heightened Scrutiny.

Here is the abstract:

Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. This essay considers the next question in this emerging area of the law. What happens if data is speech? I approach this inquiry from three angles.

First, I explore how affording constitutional scrutiny to data-based outputs impacts the validity of data privacy laws. Second, I turn to the power of search engines, and consider which poses a greater threat to free expression: the lack of regulations of these powerful intermediaries, or the regulations themselves. As search engines evolve into decision engines, and more of our choices are informed by the outputs of these algorithms, this tradeoff becomes more important based on what the search engines choose to reveal, and obscure.

I conclude by offering a framework of how courts should treat algorithmic outputs for purposes of the First Amendment, based on their nexus with human interaction. The more the human interacts, the closer the communication will be to something the human created herself, and something that warrants protection. In contrast, outputs that are created with isolated autonomy, and involve little personal involvement depart further from the humanistic expression that warrants protection. Whatever regime the courts settle on must confront this interwoven nature of human-computer interactions.

Also, here is a video of a talk I gave on the paper earlier this month at the Federalist Society Faculty Conference.

Read More
Jan 19, 2014

Penny Costs 1.8 cents to make and Nickel costs 9.4 cents, costing the government $100 million a year

Fortunately, the Mint is working on methods to make nickels cost less–but they’ll be brown. 

The Mint, which turns a profit on the dime, quarter, half-dollar and dollar, has driven manufacturing costs lower in recent years. But it now costs 1.8 cents to make a penny and 9.4 cents to make a nickel, costing the federal government about $104.5 million last year.

 And I really want one of these fake “nonsense” nickels with Martha Washington’s profile on it!

To test the viability of six different alloys under consideration, the Mint inside its lab here is making millions of what it calls “nonsense” pieces. The lab recently was minting about 2 million test nickels made of copper-plated zinc in one of its stamping machines. The pieces, with a profile of Martha Washington on the front, remain the same size and shape as current nickels, but weigh in at 4.06 grams, a little less than the current coin’s 5 grams, and are the same brownish color as a penny.

These coins should be abolished. Round all prices up to the next ten-cent interval if you are paying with cash. Or hell, round it down to the previous ten-cent interval for cash and up for credit cards.


Read More
Jan 19, 2014

Pepperdine Law Prof, and former Ambassador to Malta, Doug Kmiec Seeks To Be Clinton’s VP. Huh?

In 2008 ,Pepperdine Law Professor Doug Kmiec, a life-long Republican,  former head of OLC under Reagan, and steadfast opponent of abortion, endorsed Barrack Obama. He was pilloried by conservatives. I suppose as a reward for his support, the President appointed him as Ambassador to Malta. His tenure there was not a good one, and he was criticized by the State Department Office of Inspector General for spending too much time on his religious duties, and not enough on being an ambassador. The New Republic sums it up:

And yet, in April, halfway through the standard three-year term, Kmiec found himself stung by an unfavorable government audit issued by the Office of the Inspector General (OIG). Nine days later, Kmiec submitted a doleful resignation letter to Hillary Clinton, lamenting, “You and the President are being deprived of the intelligent insight of much of your Embassy’s work.” …

In the annals of diplomatic misbehavior, Kmiec’s is rather an unusual case. Even the critical OIG report notes that embassy morale was good, he was respected by the Maltese and his staff, and had “achieved some policy successes.” The problem, it seems, was that Kmiec may have taken the job a little too seriously. According to the OIG report, America’s man in Malta spent several hours a day holed up in his residence, penning speeches and lofty essays on religion for American and Maltese publications, believing he was promoting Obama’s interfaith initiatives. This irked officials back in Washington: His diplomatic schedule was “uncharacteristically light,” the OIG report noted, and “his unconventional approach” had created friction with his colleagues, not only in Washington, but at the embassy, who bristled at being asked to spend “an inordinate amount of time” editing papers and obtaining clearance for them.

Since he has returned, I’ve followed his curious posts on Facebook and Twitter. He consistently refers to himself in the third person as Ambassador, and posts these odd videos and photos of himself in his Ambassadorial role. But a few months ago, it got really weird. He started posting images promoting himself as Vice President in 2016.


At first I thought it may be some kind of joke, but it wasn’t. Then on October 6, 2013, he announced his “decision to run for vice presidency in 2016,” and noted that he had a “steering committee.”


The picture of him at the inaugural podium was taken at the National Constitution Center  in Philadelphia. You can see George H.W. and Barbara Bush, Nancy Reagan, and Jimmy Carter in the backdrop. I have a similar picture.


Then came this surreal video with some eerie voices touting Kmiec as an “independent voice” in 2014. He is apparently also running for Congress in 2014 before being Hillary’s VP. (I don’t know how many campaign finance laws were ignored here). As best as I can tell he photoshopped Hillary into the picture of him and Obama. Or she photobombed.


At the bottom it says “Breaking News: Kmiec NOT deferring Congressional bid to 2016: test race for Hillary in 2014.” Like a fake news headline. Yeah, no clue.

Then on January 15 came this lengthy jeremiad on Facebook declaring that he is pursuing the VP, and also running for Congress. Here is the beginning (it scrolls on for a while).

Thanks to my many friends who have asked me whether I intend to seek public office,

Yes, I am.

After a lifetime of supporting Democratic and Republican candidates, I am taking up the challenges that confront our nation directly.

Specifically, and some will no doubt say, quixotically, I am pursuing the vice presidency of United States,but if all goes well that possibility Will turn on the judgment of Pres. Hillary Clinton.

Of course public office should not be about titles and so I’m really just looking for a spot to do good in my last years while I still have energy and excitement of the ideas of social justice especially as they are now so well articulated by Pope Francis.

I suspect that if I emulate with sincerity the holy father’s sense of joy and humility possibilities of helping Mrs. Clinton, my former boss of State Department, will become readily apparent. If not, however there is much to do in particular, I am presently seeking a seat in Congress from the California 26th Congressional District.

And you can help:

This Saturday and Sunday, Jan 18 And 19, I need your help gathering signatures. We will begin saturday at 10:30 am at 1:30 pm Sunday from in front of SAMs club in Oxnard off Rose. Email if you can help.

If you would like to help with a small contribution, please email me back and I’ll tell you how to get that donation to our campaign consistently with the campaign regulations that apply. Your support of anynkind or amount is most welcome since it is with the work and small donations of many that we will see whether or not “Mr. Smith can still go to Washington” with his idealism intact and enough energy to meet the real needs so many face

This story got picked up by the Times of Malta.

Douglas Kmiec, US ambassador to Malta from 2009 to 2011, has announced he is pursuing the vice presidency of the United States, backing Hillary Clinton.

He had resigned his Malta post after a US State Department report rebuked him for spending too much time writing on subjects such as abortion and his Catholic beliefs to the detriment of American diplomacy.

And Politico couldn’t resist.

Does anyone know what the heck is going on? This is all somewhat surreal.

Read More
Jan 19, 2014

What if Congress had introduced the Voting Rights Amendments Act of 2014 Following NAMUDNO v. Holder?

In 2009, the Supreme Court avoided striking down Section 5 of the Voting Rights Act, and gave Congress a clear ultimatum–fix the law, or we will strike it down. Congress, which had just reauthorized the VRA in its entirety in 2006 by a broad bipartisan basis, did nothing to change it. Then Shelby County happened, and the Court nullified the coverage formulas, urging Congress once again, not so subtly, that they needed to create new formulas that reflected modern-day circumstances.

What would have happened if Congress introduced the Voting Rights Amendments Act in 2010, or maybe in 2006? Would the Supreme Court have even taken Shelby County or Namudno?

Rick Hasen poses the question:

Ironically, I think if this were the bill introduced in 2006 to amend the VRA, it would  not only have passed both Houses of Congress and become law, the Supreme Court would have been very likely to uphold the measure as constitutional despite its constitutional problems.

NAMUDNO was the “nudge.” Shelby County was the “shove.”


Read More
Jan 19, 2014

Court Rewrites Affordable Care Act To Uphold It. Again.

I have now had some time to read Judge Friedman’s opinion in Halbig v. Sebelius. Serious deja vu from NFIB v. Sebelius.

The question in this case is whether, when Congress wrote into the ACA that subsidies should be provided to “an Exchange established by the State” they actually meant “an Exchange established by the State or HHS.” A majority of states have declined to establish their own exchanges, so HHS stepped in, and created Healthcare.gov. The plain text of the statute is clear that subsidies can only be applied to the state-run exchanges.

Here is the crux of Judge Friedman’s ruling:

On its face, the plain language of 26 U.S.C. § 36B(b)-(c), viewed in isolation, appears to support plaintiffs’ interpretation. The federal government, after all, is not a “State,” which is explicitly defined in the Act to mean “each of the 50 States and the District of Columbia.” ACA § 1304(d), codified at 42 U.S.C. § 18024(d). The phrase “Exchange established by the State under [42 U.S.C. § 18031]” therefore, standing alone, could be read to refer only to state-run Exchanges.  …

Looking only at the language of 26 U.S.C. § 36B(b)-(c), isolated from the cross- referenced text of 42 U.S.C. § 18031, 42 U.S.C. § 18041, and 42 U.S.C. § 300gg-91(d)(21), the plaintiffs’ argument may seem the more intuitive one. Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)-(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.11

Because each side provides a credible construction of the language of Section 36B(b)-(c) – though defendants’ is the more credible when viewed in light of the cross- referenced provisions – the Court moves on to consider the other “traditional tools of statutory construction” under Chevron step one, including the structure of the statute and the context in which the language of Section 36B is set.

The court then goes on to look at other provisions of the law, legislative history, and the government’s rationales to explain the legislative purposes. Once you go past clear and unambiguous text, it isn’t hard to rule in favor of the government.

In sum, the Court finds that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges. What little relevant legislative history exists further supports this conclusion and certainly – despite plaintiffs’ best efforts to suggest otherwise – it does not undermine it. The Court therefore concludes that “Congress has directly spoken to the precise question” of whether an “Exchange” under 26 U.S.C. § 36B includes federally-facilitated Exchanges. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 842. And that must be “the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-83. The IRS has done exactly that by promulgating regulations authorizing the provision of tax credits to individuals who purchase health insurance on federally-facilitated Exchanges as well as to those who purchase insurance on state-run Exchanges.1

There are lots of provisions of the ACA that don’t make much sense when read together. That is the byproduct of passing a 2,700 page bill that no one read in two weeks so they could get home for Christmas break, and then skipping the reconciliation process to clean out any bugs to avoid a Senate filibuster with the seating of Scott Brown. It is absurd to assume the ACA is some sort of cohesive hole that cannot lead to any “absurd” results. Anyway, I digress.

The court’s strongest purposive argument focuses on the fact that the challengers could point to nothing in the legislative record to support their reading–that Congress only offered subsidies to the states to encourage every state to sign up.

Plaintiffs’ theory is tenable only if one accepts that in enacting the ACA, Congress intended to compel states to run their own Exchanges – or at least to provide such compelling incentives that they would not decline to do so. The problem that plaintiffs confront in pressing this argument is that there is simply no evidence in the statute itself or in the legislative history of any intent by Congress to ensure that states established their own Exchanges. And when counsel for plaintiffs was asked about this at oral argument, he could point to none. See Dec. 3, 2013 Tr. 8-18. Indeed, if anything, the legislative history cuts in the other direction and suggests that Congress intended to provide states with flexibility as to whether or not to establish and operate Exchanges. See infra at 35-38.

I understand that there are a few other arrows in the challenger’s quiver here, but I’m inclined to agree with the court here. From my reading of the record, the Congress was concerned of the Printz commandeering issue, and went out of their way to make sure the Feds could backup states that opted out. Although, they did not offer such discretion for the Medicaid expansion. Here, HHS threatened to revoke all funding if the states did not participate. To the extent that Congress thought about this particular provision (no one actually read it), this purposive argument is stronger.

So this raises the never-ending question of statutory interpretation: text and purpose. When the text is clear, do you look to the purpose? Do you assume it was a drafting error, and go with intent?

The court resolved everything under Chevron Step 1, and did not go onto Step 2. But this footnote was added in the very last sentence of the analysis:

Even if the statute could be characterized as ambiguous – which it cannot – the IRS Rule must be upheld at Chevron step two as a permissible construction of the statute. For the reasons set forth above, the plain text of the statute, when considered in light of the statutory structure, the statute’s purpose, and the limited legislative history, establish that the Secretary’s interpretation is, at minimum, a reasonable one. Similarly, because the Court finds that the IRS Rule comports with the unambiguous meaning of the statute, and, alternatively, the Secretary’s interpretation of the statute in promulgating the Rule was at least permissible, it finds no merit in plaintiffs’ argument that the agency has failed to demonstrate that it arrived at its interpretation of the statute through reasoned decision-making.

Abbe Gluck notes that the court “references Chevron deference as an alternative, but not necessary, basis for the holding in a footnote.” 

Usually when the text is plain and unambiguous, that is the end of the road. But let’s be frank about the consequences of this case. If this suit is successful, the exchanges in about 35 states would no longer be able to provide subsidies. The premiums would skyrocket. Those who already signed up would (presumably) now face much higher bills, and maybe even need to pay back any subsidies given. Those who are waiting to sign up will be deterred from doing so due to the high costs.

Of course, the easy fix would be for Congress to insert two words into the statute: “and HHS.” But the chances of the House Republicans permitting an *expansion* of Obamacare are zero. So the law would stay as it is, in a totally inoperable form.

The court alludes to this in the opinion:

Plaintiffs’ proposed construction in this case – that tax credits are available only for those purchasing insurance from state-run Exchanges – runs counter to this central purpose of the ACA: to provide affordable health care to virtually all Americans. Such an interpretation would violate the basic rule of statutory construction that a court must interpret a statute in light of its history and purpose.

This fear, I’m sure, animated the court’s opinion. Judge Friedman is on strong footing for putting aside the actual text of the ACA, and adding a few words here and there to uphold it. Look no further than the Chief Justice of the United States,who rewrote the law’s mandate into a tax penalty as part of his saving construction. That text was clear (“shall” have insurance and “penalty”), and he found it violated the commerce clause, so he decided to uphold a different statute. At least Judge Friedman found something (anything) in the record to support his purposive analysis.

In any event, this case is already being appealed. On 1/17/14, the D.C. Circuit granted the challenger’s moment to expedite briefing [Update: The D.C. Circuit didn’t actually grant the motion to expedite, but ordered expedited briefing]:

PER CURIAM ORDER filed [1475796] considering motion to expedite [1475591-2]; directing that appellees file a response to the motion, not to exceed 20 pages, by 12:00 noon on Wednesday, January 22, 2014, and that appellants file a reply, not to exceed 10 pages, by 12:00 noon on Thursday, January 23, 2014. The parties are directed to file the paper copies of their pleadings by hand. [14-5018]

Onto the D.C. Circuit we go.

Read More
Jan 19, 2014

President Obama on his race, his popularity, and federalism

In a wide-ranging interview in The New Yorker, President Obama touches on a number important topics, including his race, how he is viewed because his race, and the relationship between federalism and race. A Bloomberg report notes that these are his “most direct comments on how race has affected his political standing since he’s been in office.”

First, the President notes that part of his unpopularity stems from the fact that people “don’t like the idea of a black President.”

“There’s no doubt that there’s some folks who just really dislike me because they don’t like the idea of a black President,” Obama said.

Second, he observes that other people, black and white alike, gave him the “benefit of the doubt” because he was a “black President.”

“Now, the flip side of it is there are some black folks and maybe some white folks who really like me and give me the benefit of the doubt precisely because I’m a black President.” The latter group has been less in evidence of late.

I’m not sure what to make sure of this “flip side” of the coin analogy. On the one side, people don’t like him because he is black. On the other side, people like him because he’s black.  But this isn’t a two sided-coin. Certainly there are people (of all races) who like him because his job as President, and there are people (of all races) who dislike him because of his job as President.

I recognize the New Yorker may have taken these two quotations out of context, but it severely oversimplifies the President’s views of his own popularity, and risks racially polarizing a remarkable feat–five decades after the March on Washington, a black president won re-election by a wide margin with  40% of the white vote–and obscuring the actual merits and demerits of this presidency, coming off the worst year of the administration.

As Bloomberg notes, “Obama won 43 percent of the white vote in 2008 against 55 percent for opponent John McCain.” In 2012, “Republican candidate Mitt Romney won 59 percent of the white vote, compared with Obama’s 39 percent.” By way of comparison, Bill Clinton received 39% of the white vote in 1992 (and this on top of a declining percentage of white Americans voting for Democrats).

From 2008 to 2012, Obama lost four percent of the white vote. I suppose some of that change could be attributed to the first side of the coin Obama identified, though I imagine if a person is inclined to dislike him because he is black, that sentiment would not magically manifest in 2009. So what do we attribute the drop-off too? Is it white people, who wanted him to succeed because he was black, lost that sentiment from 2008 to 2012? Or, maybe, just maybe, people opposed his policies and realized that the country needs a new direction?

The President’s comments also remind me of remarks Rush Limbaugh made in 2003 concerning Philadelphia Eagles quarterback Donovan McNabb.

Here is what the President said:

“Now, the flip side of it is there are some black folks and maybe some white folks who really like me and give me the benefit of the doubt precisely because I’m a black President.”

Here is what Limbaugh said:

“I think what we’ve had here is a little social concern in the NFL. The media has been very desirous that a black quarterback do well,” Limbaugh said. “There is a little hope invested in McNabb, and he got a lot of credit for the performance of this team that he didn’t deserve. The defense carried this team.”

I think the comments are similar, coming from completely different angles. Both noted that some people are willing to give a black person in a unique position of power the benefit of the doubt because they want him to do well for reasons beyond his qualifications and performance.

The President continued the theme of race by connecting those who oppose expanding the power of the federal government with nullificationists and segregationists.

“There is a historic connection between some of the arguments that we have politically and the history of race in our country, and sometimes it’s hard to disentangle those issues,” he went on. “You can be somebody who, for very legitimate reasons, worries about the power of the federal government—that it’s distant, that it’s bureaucratic, that it’s not accountable—and as a consequence you think that more power should reside in the hands of state governments. But what’s also true, obviously, is that philosophy is wrapped up in the history of states’ rights in the context of the civil-rights movement and the Civil War and Calhoun. There’s a pretty long history there.”

These remarks may prompt an engaging discussion in a constitutional law classroom, focusing on critical racial studies, but I am troubled when the President of the United States offers this not as a theory of society, but as a way to explain why millions of Americans oppose him (including many who may have voted for him twice–his popularity among Democrats has plummeted). In the President’s mind that those who oppose his agenda due to concerns about federalism and state’s rights are motivated by the same “philosophy” and “historic[al] connection” that supported John C. Calhoun and Jim Crow.

The President continues, and attributes this “history” to explain “Arguments against [his] Presidency”

And so I think it’s important for progressives not to dismiss out of hand arguments against my Presidency or the Democratic Party or Bill Clinton or anybody just because there’s some overlap between those criticisms and the criticisms that traditionally were directed against those who were trying to bring about greater equality for African-Americans.

The President is blaming opposition to his presidency from federalists who are animated by the spirit of John C. Calhoun. This is par for the course for Think Progress (my good friend Ian Millhiser loves to use the Calhoun image whenever he can), but is (sorry to use the phrase again) unprecedented for a President. Opposing Obama is like opposing equal rights for African-Americans. You get the dichotomy? Now how do you feel about opposing the President.

And then we have another “flip side” from the President. What’s with this turn of phrase?

The flip side is I think it’s important for conservatives to recognize and answer some of the problems that are posed by that history, so that they understand if I am concerned about leaving it up to states to expand Medicaid that it may not simply be because I am this power-hungry guy in Washington who wants to crush states’ rights but, rather, because we are one country and I think it is going to be important for the entire country to make sure that poor folks in Mississippi and not just Massachusetts are healthy.”

Now, this comment cannot be directed only at “conservatives.” No, it can’t. For Justices Kagan (whom he appointed) and Breyer (appointed by Clinton) joined Roberts, Scalia, Kennedy, Thomas, and Alito, in holding that this “power-hungry guy in Washington” could not coerce the states into joining the Medicaid expansion. Recall that his Secretary of HHS told states that if they did not expand Medicaid they would lose *all* of their funding. This is federalism, and justiciable limits on the spending power. This is not nullification or segregation. I would hope that a former constitutional law professor knows better, but this doesn’t even matter anymore.

This interview is striking. Not because it represents a change in the President’s thinking. No, it represents a president, no longer concerned with reelection, telling us what he thought all along, but could not say.

Read More
Jan 19, 2014

Reason’s 12 “Broken Promises” of Obamacare

In the January edition of Reason, Peter Suderman lists the top 12 “broken promises” of Obamacare:

1. “If you like your insurance plan, you will keep it.”

Reality: According to a November 4, 2013, report in Politico, more than 3.5 million Americans have been hit with health plan cancellations. Millions more are expected to follow.

2. “What we said was you can keep it if it hasn’t changed since the law passed.”

Reality: President Obama promised repeatedly, with no caveats or qualifications, that people who liked their plans could keep them, and that no one would ever take them away, period. Versions of the promise were captured on video at least 36 times.

3. “If you like your doctor, you will be able to keep your doctor, period.”

Reality: People who can’t keep their plans often can’t keep their doctors, because doctors are affiliated with particular networks and insurers. Many of the new plans offered through the law’s insurance exchanges were built with narrow networks to keep costs down. Top hospitals are available under relatively few of the exchange plans, generally those with relatively high premiums.

4. “We’ll start by reducing premiums by as much as $2,500 per family.”

Reality: The average annual premium for an employer-provided health plan rose from $13,375 to $16,351 between 2009 and 2013, according to a survey by the Kaiser Family Foundation. Prices for individual market plans like those found on the exchanges are also up, with the average state facing premium increases of 41 percent, according to a November 2013 analysis by Manhattan Institute health policy analyst Avik Roy.

5. “It will create 4 million jobs-400,000 jobs almost immediately.”

Reality: The gush of jobs never materialized. The unemployment rate slowly receded in the months after Obamacare passed, but largely because more people had quit searching for work. By 2021, according to projections by the Congressional Budget Office, the law is expected to shrink the nation’s work force by about 0.5 percent, since fewer people will hold onto their jobs to maintain their health insurance.

6. Obamacare “pushed back on the undue influence of special interests.”

Reality: Obama cut deals with major incumbents in the health care industry to obtain their nearly unanimous support. America’s Health Insurance Plans, an industry group, backed the law because of the individual mandate to buy health insurance. The American Medical Association was reportedly promised that, in return for its support, Democrats would fix the way Medicare pays doctors-a fix that never came. And as documents released by congressional Republicans eventually revealed, the White House cut an explicit deal with the pharmaceutical industry guaranteeing that the administration would not pursue several policies that drug makers opposed, in order to get the industry’s support for the law. Meanwhile, Obamacare has never been popular with the public it was supposed to be working for.

7. “We are on schedule, and will be ready for the marketplaces to open on October 1.”

Reality: The launch was a disaster, with serious problems in many state exchanges and with the federal website freezing up just minutes after going live. It was a catastrophe that some in the administration knew was on the way. “Confidential progress reports from the Health and Human Services Department show that senior officials repeatedly expressed doubts that the computer systems for the federal exchange would be ready on time,” The New York Times reported on October 12, 2013.

8. “Regardless of how the Marketplace is managed, consumers will be able to access the Marketplace with ease.”

Reality: As Obama and Cohen were making their promises, they had no idea whether the site would even be functional. On September 26, the day of Obama’s Maryland speech, “there had been no tests to determine whether a consumer could complete the process from beginning to end,” according to an October report in The Washington Post. That month Businessweek reported that such testing still had not been conducted.

9. “We expect to resolve these issues in the coming hours.”

 Reality: The problems went much deeper than the administration initially claimed. Six weeks after launch, online enrollment in the federal exchanges was still stymied by serious technical failures. “The website is not working well,” White House Press Secretary Jay Carney admitted on November 7, and it “hasn’t been working well for the first month of the rollout.” An HHS report later revealed that the site had been accessible just 42 percent of the time during the month of October.

10. “Take away the volume, and it works.”

Reality: Volume dropped, but malfunctions continued. Outside experts contacted by multiple news organizations found many shortcuts, messy construction, and unnecessary functions in the visible portions of the code. And insurers reported that the enrollment information they were receiving from the system was frequently flawed. The system was not just overwhelmed; it was poorly designed.

11. “No, we don’t have that data.”

Reality: Leaked notes from the administration’s daily Obamacare war room meetings later revealed that on launch day there were a total of six enrollments through five different insurance issuers. By the second day, the number had climbed to 248. The numbers were terrible, so the administration pretended they did not exist.

12. “[We] follow high standards regarding the privacy and security of personal information.”

 Reality: By launch day, the deadline-driven operational demands outweighed security concerns. The exchange went live under a last-minute temporary security authorization signed by Marilyn Tavenner, the head of the Centers for Medicare & Medicaid Services. It said “aspects of the system that were not tested due to the ongoing development exposed a level of uncertainty that can be deemed as a high risk.”

Read More
Jan 19, 2014

Texas Community Property Law: Wendy Davis’s Husband Claims He Made “Last Payments On Her Student Loans,” and “the next day she left.”

When teaching marital property, a common problem arises concerning situations where one spouse supports another spouse to pursue an education. This entails one spouse working, paying tuition, taking out loans, assuming more household duties, and other tasks, to ensure that the other spouse can finish an education. In almost every case, this arrangement is made because of the increased earning potential for the couple with the degree. The dispute arises, however, when the spouse who went to school divorces the supporting spouse–and in particular when this separation is shortly after the schooling is completed, or the bills are paid.

Courts are forced to grapple with two related question. First, should all of the time and money the supporting spouse contributed to the marriage be considered for purposes of division of assets and awards of spousal support. Second, is the degree itself (and it’s capacity for increased earning potential over a lifetime) marital property that should be separated in the division of assets, or be factored into awards of spousal support.

More often than not when I teach these cases, the situation is a husband studying while the wife puts him through school. The leading case in the textboooks is  In Re Marriage of Graham. Here, a husband obtained an MBA while his wife toiled away as a flight attendant. Shortly after he graduated, he sought a divorce. This case presents the question of whether the future earning potential of an MBA is marital property. The Colorado Supreme Court said it as not marital property.  This is the general rule. In nearly every state (New Jersey and I think New York excepted), the future earning potential of a degree is not considered marital property, nor is the money contributed by the supporting spouse, but the increased earning potential can be a factor when calculating spousal support. Also, these cases are a good time to explain to law students the value of a law degree over a lifetime.

In reading an article about Wendy Davis, the Democratic candidate for Governor here in Texas, I saw similar issues pop up. Her second husband, a lawyer thirteen years her senior, supported her financially while she finished her undergraduate education at TCU, and paid for her tuition at Harvard Law School. He reports (and of course, there is reason to take this with a grain of salt as they had a contested divorce) that right after he made the last payment to her student loans, “the next day she left.”

Here is the account from the Dallas Morning News:

A single mother working two jobs, she met Jeff Davis, a lawyer 13 years older than her, married him and had a second daughter. He paid for her last two years at Texas Christian University and her time at Harvard Law School, and kept their two daughters while she was in Boston. When they divorced in 2005, he was granted parental custody, and the girls stayed with him. Wendy Davis was directed to pay child support. …

While they dated, Wendy Davis enrolled at Texas Christian University on an academic scholarship and a Pell Grant. After they married, when she was 24, they moved into a historic home in the Mistletoe Heights neighborhood of Fort Worth.

Jeff Davis paid for her final two years at TCU. “It was community resources. We paid for it together,” Wendy Davis said.

Under Texas community property law, that is exactly right. Any money brought into the marriage obtained during the marriage is presumptively community.

When she was accepted to Harvard Law School, Jeff Davis cashed in his 401(k) account and eventually took out a loan to pay for her final year there.

“I was making really good money then, well over six figures,” he said. “But when you’ve got someone at Harvard, you’ve got bills to pay, you’ve got two small kids. The economy itself was marginal. You do what you have to do, no big deal.”

The daughters, then 8 and 2, remained with Jeff Davis in Fort Worth while Wendy Davis was at Harvard.

Over time, the Davises’ marriage was strained. In November 2003, Wendy Davis moved out.

Jeff Davis said that was right around the time the final payment on their Harvard Law School loan was due. “It was ironic,” he said. “I made the last payment, and it was the next day she left.”

Wendy Davis provides an alternate account:

Wendy Davis said that as a lawyer, she contributed too.

“I was a vibrant part of contributing to our family finances from the time I graduated to the time we separated in 2003,” she said. “The idea that suddenly there was this instantaneous departure after Jeff had partnered so beautifully with me in putting me through school is just absurd.”

And what was the outcome of the divorce?

In his initial divorce filing, Jeff Davis said the marriage had failed, citing adultery on her part and conflicts that the couple could not overcome. The final court decree makes no mention of infidelity, granting the divorce solely “on the ground of insupportability.”

Amber was 21 and in college. Dru was in ninth grade. Jeff Davis was awarded parental custody. Wendy Davis was ordered to pay $1,200 a month in child support.

“She did the right thing,” he said. “She said, ‘I think you’re right; you’ll make a good, nurturing father. While I’ve been a good mother, it’s not a good time for me right now.’”

Wendy Davis declined to discuss the circumstances or terms of the divorce.

I don’t know if the husband sought to return any value he paid towards her education during the divorce, but he would probably lose that case.

Read More