Blog

The Times reports on a “wrinkle” (to put it mildly) in the Affordable Care Act, whereby members of Congress and their personal staffs can no longer obtain health insurance from the federal government (as do all federal employees), but must now go onto the exchanges–and to boot, there are no subsidies for these workers. Why wasn’t this “wrinkle” ironed out?

Ask Diana DeGette (D. Co.) who voted for the Affordable Care Act:

Representative Diana DeGette, Democrat of Colorado, said the Senate was responsible for the provision requiring lawmakers and many aides to get insurance in the exchanges.

“We had to take the Senate version of the health care bill,” Ms. DeGette said. “This is not anything we spent time talking about here in the House.”

Another House Democrat, speaking on condition of anonymity, said, “This was a stupid provision that never should have gotten into the law.”

Don’t both houses have to approve a law before it goes to the Senate? How could the House blame the “Senate version.”

A brief history lesson is in order–retold in glorious detail in Unprecedented. The Affordable Care Act passed an important test vote in the Senate on December 24, 2009, with a vote of 60-39. The version passed was not meant to be the final version of the bill, and contained the venial (in the words of Justice Scalia) Cornhusker Kickbacks and Louisiana Purchase. A few weeks later, Scott Brown was elected as the 41st vote to stop Obamacare in the Senate. So Obama, Pelosi, and Reid were forced with a dilemma. If the House voted on a bill, and sent it back to the Senate, it would die in a filibuster. Instead, the House decided to pass the Senate bill, with minor changes made through the Reconciliation process, without any substantive debate. Many of these so-called “wrinkles” would certainly have been ironed out in a normal reconciliation process, but the Democrats could not afford delay, and passed a version of the bill that was nowhere near ready for primetime.

So now we are stuck with this, and many, many other lurking “wrinkles.” Wait till they figure out the mandate isn’t high enough to work.

So what’s the solution? Not changing the law of course. As has been the President’s pattern, unilateral administration action to fix these “wrinkles.”

Representative Henry A. Waxman, a California Democrat who helped write the 2010 law, said, “The federal government, as our employer, should provide the same contributions it makes to our current health plans.”

The Office of Personnel Management could establish that policy administratively, without legislation, he said.

Totally unrelated, but I always found it somewhat odd that the same benefit plans were available to employees of all three branches of government. I found it odd that as a member of the Federal Courts, an Article II agency was administering my benefits. Same for the Article III judges. I realize this probably makes things much easier, and saves a lot of money, but it tingled my separation-of-powers nerves. Also, when I transferred from the DOD as a law clerk (Article I) to U.S. Courts as a law clerk (Article III), my status, and pay grade (higher than my co-clerks just starting out) transferred over. I never understood that either.

In a recent interview in the Times, the President is asked about the constitutional authority to delay the mandate. He seems to duck the issue of whether his lawyers told him that it was constitutional to delay the implementation of the mandate (I wonder if there is even an OLC opinion here).

NYT: People questioned your legal and constitutional authority to do that unilaterally — to delay the employer mandate. Did you consult with your lawyer?

MR. OBAMA: Jackie, if you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security —

NYT: No, but specifically –

MR. OBAMA: — but where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

He then disparages those who have criticized him for doing so–noting that they aren’t lawyers, or gasp, constitutional lawyers:

And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don’t have some folks in Congress who say that I’m usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don’t think that’s a secret. But ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. And if I can take steps on their behalf, then I’m going to do so. And I would hope that more and more of Congress will say, you know what, since that’s our primary focus, we’re willing to work with you to advance those ideals. But I’m not just going to sit back if the only message from some of these folks is no on everything, and sit around and twiddle my thumbs for the next 1,200 days.

Update: Here is the entire transcript:

MR. OBAMA: Well, this was a very practical decision that actually doesn’t go to the heart of us implementing the Affordable Care Act. The majority of employers in this country provide health insurance to their employees. And the number of employers who are potentially subject to the employer mandate is relatively small.

The way the law was originally written, it did not take into account the fact that we don’t necessarily need to load up the vast majority of companies that are already doing the right thing with a bunch of additional paperwork; are there simpler ways for us to allow them to certify that they’re providing health insurance? And if they do that, then the purpose, the spirit of the law is met, and we can concentrate on the few bad actors who are unwilling to provide health insurance to their employees even though they can afford it, and they’re relatively large employers.

And businesses came to us and said, listen, we were supportive of providing health insurance to employees, in fact, we provide health insurance to our employees; we understand you want to get at the bad actors here, but are there ways to provide us some administrative relief? And what we said was, given that that is not critical to standing up the marketplaces where people are going to actually be able to buy lower-cost, high-quality insurance and get the tax credits that make it affordable for them, we thought it made sense to give another year not only for companies to prepare, but also for us to work with Treasury and others to see if there are just ways we can make this a little bit simpler for companies who are already doing the right thing.

This is the kind of routine modifications or tweaks to a large program that’s starting off that in normal times in a normal political atmosphere would draw a yawn from everybody. The fact that something like this generates a frenzy on Republicans is consistent with the fact that they’ve voted to repeal this thing 38 times without offering a alternative that is plausible. And from what I understand, based on recent reporting, they’ve just given up on offering an alternative.

So essentially — their central economic plan that they’re currently presenting involves making sure that 50 million Americans cannot get health insurance; that people with preexisting conditions are potentially locked out of the market; that the rebates that people have received from insurance companies are sent back; that young people who are right now on their parents’ plan because they’re 26 or under, that they suddenly don’t have health insurance. I do not understand the argument that that somehow grows the economy or strengthens the middle class.

And during the course of implementation, are there going to be some glitches? Are there going to be some complaints from employers who are still trying to figure it out and may not know what subsidies are available to them? Absolutely. Are there some folks who may say, we’re going to try to figure out ways not to provide health insurance to our employees? Yes. But that’s a small proportion of our overall economy, and the principle that everybody should be able to get health insurance is one that the vast majority of Americans agree with.

NYT: People questioned your legal and constitutional authority to do that unilaterally — to delay the employer mandate. Did you consult with your lawyer?

MR. OBAMA: Jackie, if you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security —

NYT: No, but specifically –

MR. OBAMA: — but where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don’t have some folks in Congress who say that I’m usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don’t think that’s a secret. But ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. And if I can take steps on their behalf, then I’m going to do so. And I would hope that more and more of Congress will say, you know what, since that’s our primary focus, we’re willing to work with you to advance those ideals. But I’m not just going to sit back if the only message from some of these folks is no on everything, and sit around and twiddle my thumbs for the next 1,200 days.

NYT: Polls this week have shown your health care law has lost support. What are you going to be doing to build support?

MR. OBAMA: We’re going to implement it.

Third-Party Litigation Finance–that is, outside parties funding litigation–is an emerging trend that raises a host of ethical issues. This essay, titled “Litigation Finance: What do Judges need to know?” offers judges a number of questions to ask when such funding is offered. Here is the abstract:

The growth of “litigation finance” — the funding of lawsuits by outside investors who are neither parties nor counsel — is being closely watched by academics, the press, and the bar. The practice poses risks of conflicting interests and improper influence; and yet if carefully managed it may in fact enhance party autonomy. What questions, then, should judges be asking when dealing with a case with outside funding?

This symposium essay offers judges a starting point: a menu of questions to ask parties who receive such financing. These inquiries aim to pierce simplistic labels such as “loan” or “investment,” in order to help judges grasp the true nature of the funder’s stake, incentives, and control. For instance: Is the investor taking interest payments, a share of the recovery, or both? Does the investor’s return depend on whether the outcome is a judgment or a settlement? Or on whether the remedy is injunctive or monetary? Has the investor in effect chosen the party’s counsel? Can it exert de facto influence over litigation decisions by threatening to withdraw funding? Does the arrangement limit investments by other funders? How does it affect the amount or timing of the party’s or counsel’s compensation?

Further questions are raised here to prompt judges to consider new ways not only to uncover, but also to respond to — or even to harness — such third-party involvement. Special emphasis is given to the context of mass litigation. For instance: Should opposing counsel be allowed to pose questions about the financing? Should the court direct that financing details be included in motions for class certification and in notices to class members? How might the court take the funding structure into account in assigning attorneys’ fees, say, or in approving settlements?

 

Of course how will firms decide which cases to invest in–that’s where legal prediction algorithms come into play.

The opinion upholding Judge Tingling’s (yes that is his real name) is here. Form the conclusion:

In sum, we find that under the principles set forth in Boreali, the Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion [*15]Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners’ argument that the subject regulation was arbitrary and capricious.

Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH’s legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.

I offer no expertise on New York constitutional law, or separation of powers, but this opinion strikes me as a significant setback to the Bloomberg Administration’s slapdash effort to regulate this area. The court makes clear that if the proper procedures were followed, such a health law would be permissible. So much for Emily Bazelon’s charges of “conservative activism.”

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. My new essay, titled “What Happens if Data is Speech,”  considers the next question in this emerging area of the law. What happens next? 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 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.

This essay builds on the important scholarship of three articles in this field: Jane Bambauer’s Is Data Speech in the Stanford Law Review, Stuart Benjamin’s Algorithms and Speech in the Pennsylvania Law Review, and Tim Wu’s Machine Speech, also in the Pennsylvania Law Review. I discuss these articles here.