Health care reform rhetoric, vandalism and violence: what are the legal options?

Here is a disturbing CNN report on threats of violence and acts of vandalism triggered by heated rhetoric of the health care reform debate. I have to say that I’m especially troubled by Rep. Steve King (R-Iowa) and his smug admission that this is all melodrama.

Thanks, sir. Glad that putting your opponents in harm’s way is “just” a little game.

I’ve seen questions floating through blogs and social media about why these people can’t be stopped from abusive rhetoric.  Short answer is that the First Amendment generally prevents a court from telling someone that they can’t speak.

So the demigods, sideshow freaks, and rodeo clowns are free to continue heating things up with half baked allegations and over-heated rhetoric. But when violence results in injury, lines have been crossed. Only then will we be able to hold people accountable in court. Only then will an irresponsible speaker face a reckoning.

Not pretty, I know–especially when you see and hear the kind of stuff that we’ve faced over the last few days. But it’s a line that we have to honor.

A similar thing happened here in Oregon many years ago. When the White Aryan Resistance leader, Tom Metzger, incited a trio of skinheads to violence, he faced a wrongful death claim brought by the Seraw family, who lost their son in a senseless hate-filled attack.

If any wingnut is crazy enough to start firing shots or throwing bombs, there will be a reckoning. And it will be epic.The threats of violence aren’t going to shout the rest of us down. We’re going to have health care reform. Now maybe it’s time to act like grown ups and get on with the business of living in a democracy.

Constitutional challenge to health care reform-good luck with that

It took less than 24 hours for various states’ attorneys general to start the saber rattling. Apparently,  at least 10 states are lining up to litigate constitutional challenges to the historic passage of health care reform.

The talking points memo was apparently released early. My understanding from a casual review of the media stories is that various challengers claim that Congress lacks the power to require individuals to take actions to obtain health insurance.  The story goes that the Commerce Clause of the United States Constitution (“The Congress shall have power ****To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) does not allow Congress to require citizens to affirmatively act.

As I understand the argument, someone who doesn’t buy insurance isn’t affirmatively affecting interstate Congress. As a result, Congress has no power to regulate these non-actors  through federal legislation. Legal geeks know that the power to regulate interstate commerce is far-reaching. There are few limits on that power and very few acts that don’t otherwise impact interstate commerce.

So it’s an interesting theory. Novel, really. But wrong. People who don’t have insurance are only non-actors as long as they don’t seek medical care. But once they show up in an emergency room,  apply for benefits, or otherwise incur medical care costs, they are impacting interstate commerce. Thus, it’s facetious to claim that they are not affecting interstate commerce.

But there is a bigger technical problem here which each of these political attorneys general know. It’s such a big problem that it makes the mandate argument frivolous.  In order to pursue a claim, a party going seeking relief in court must be able to claim a real legal injury. The label in legal jargon is “standing.”  There is an awful lot of case law on standing out there. Much of it comes from environmental law with courts deciding who has suffered legal injury and who has standing.

As I understand it, the current version of the health care reform bill doesn’t mandate coverage until 2014. So no one has been injured yet.

Sorry cowboys, if you file the suit now, you won’t be able to establish legal injury or standing. And by the way, I’m sure all of you are very concerned about crowding the courts with frivolous lawsuits. And for all of the times you’ve denounced frivolous lawsuits, you would never, never, never file one yourselves.  Right?

The wisdom of requiring legal injury is illustrated by the opponents’ two-pronged approach to fighting health care reform.  At the same time that the GOP attorneys general are revving up the lawsuit teams, the Congressional republicans are yammering about a repeal.  They’re also laying plans to tie up the reconciliation bill in the Senate.  As it’s a long way until 2014, how can any court ruling made today be definitive?

This scenario potentially raises an interesting series of law-geek questions under the political-question prong of the abstention doctrine. I don’t have time to think about that on this busy day. And besides, you would have to be a serious law geek to be interested. And even if you were, you would probably want to read stuff by people much smarter than me.

In any event, if the courts will truly call this on the law and not take thinly-veiled political sides, this case gets flushed quickly at all levels. Of course the U.S. Supreme Court abandoned pretenses of deciding cases on legal principles. (See, e.g., Gore v. Bush)

I suppose the U.S. Supreme Court could change the law of standing to hear this premature challenge. That would lead to a radical new theory of standing. Radical changes to the standing doctrine would be a mistake because it would unleash a torrent of future litigation. You would allow all manner of excited people their day in court to litigate issues of what might happen four years from now. That would be a really bad idea.

I think the GOP AGs might want to think carefully about what they are doing. Or maybe they’re simply too desperate to reflect?

Add U.S. Chamber of Commerce to losers list on health care reform

Good post here at the PopTort, about the U.S. Chamber of Commerce’s latest legislative loss. This time it’s health care reform. But as the PopTort article goes on to note that loss is the latest in a string of losses for the U.S. Chamber, which also opposed financial regulation, EPA action on greenhouse gases, and Sen. Franken’s efforts to limit defense contractors’ use of mandatory arbitration clauses.

On my prior blog, I’ve noted the problems with the U.S. Chamber of Commerce. They supported Bush-Cheney policies that led us to financial crisis. The U.S. Chamber rails against lawsuits and verdicts for consumers. But when a big business obtains a $300 million verdict, they remain silent.

I imagine the talking heads will be sorting winners and losers over last night’s historic health care reform vote. Let’s be sure to add the U.S. Chamber of Commerce to the health care reform losers. To be fair, they are not alone.

At our house over the weekend, my teenage daughter asked whether health care reform was a good idea.  Her mom and I talked it through slowly, pointing out that over 30 million Americans who previously lacked insurance would have access to health care. We also explained the the dread and indefensible pre-existing condition snafu that would bar all four members of her immediate family from care in the current environment.  But we were quick to say that there were a lot of unanswered questions about the bill.

My own take is that the bill did not go far enough. I don’t think that access to medical care should be a luxury, and as a small business owner, I have serious doubts about the wisdom of continuing to tie health care to employment. Still, a step forward is better than none.

I was struck by the tenor of the opponents. They would not negotiate. They hurled horrifying epithets. They wanted to make it all or nothing, and now–having lost–they complain bitterly about the process. By choosing a loud and nasty campaign, they galvanized the middle against them. I’m not much of a legislative geek, but from my perspective, the anger and distortions helped drive the ambivalent to support the bill.

As the debate unfolded over the weekend, I followed with keen interest the comments on Twitter.  (Yes, I’m on Twitter–@DavidSug.) Lots of trash talk about Speaker Pelosi and President Obama.  Seemed like it was pretty simple. They did what none of our prior leaders could do. I’m impressed by their political skills and dedication in getting it done.

So as to the U.S. Chamber of Commerce, I can’t help but wonder how that high spendin’, loud talkin’ worked out for you.  Feel free to let me know.