Suburban Guerrilla

Here in Philadelphia, we have people who have been in jail for weeks because they can’t afford the drunk and disorderly fine. Nothing quite like the high cost of being poor:

CHILDERSBURG, Ala. — Three years ago, Gina Ray, who is now 31 and unemployed, was fined $179 for speeding. She failed to show up at court (she says the ticket bore the wrong date), so her license was revoked.

When she was next pulled over, she was, of course, driving without a license. By then her fees added up to more than $1,500. Unable to pay, she was handed over to a private probation company and jailed — charged an additional fee for each day behind bars.

For that driving offense, Ms. Ray has been locked up three times for a total of 40 days and owes $3,170, much of it to the probation company. Her story, in hardscrabble, rural Alabama, where Krispy Kreme promises that “two can dine for $5.99,” is not about innocence.

It is, rather, about the mushrooming of fines and fees levied by money-starved towns across the country and the for-profit businesses that administer the system. The result is that growing numbers of poor people, like Ms. Ray, are ending up jailed and in debt for minor infractions.

“With so many towns economically strapped, there is growing pressure on the courts to bring in money rather than mete out justice,” said Lisa W. Borden, a partner in Baker, Donelson, Bearman, Caldwell & Berkowitz, a large law firm in Birmingham, Ala., who has spent a great deal of time on the issue. “The companies they hire are aggressive. Those arrested are not told about the right to counsel or asked whether they are indigent or offered an alternative to fines and jail. There are real constitutional issues at stake.”

Geeze, wouldn’t it make more sense for towns to hire these unemployed people to collect the money? Of course, they wouldn’t be able to pay big kickbacks – er, campaign contributions. But maybe that’s the point.

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Ruth Bader Ginsburg.

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From The Nation.

The law’s challengers—and the Court’s dissenters—rejected the characterization of the law as a tax. They noted that it was labeled a “penalty,” not a tax; that it was designed to encourage people to buy health insurance, not to raise revenue; and that Obama himself had rejected claims that the law was a tax when it was being considered by Congress. But Roberts said the question is a functional one, not a matter of labels. Because the law in fact would raise revenue, imposed no sanction other than a tax and was calculated and collected by the IRS as part of the income tax, the Court treated it as a tax and upheld the law.

Chief Justice Roberts did go on to say (for himself, but not for the Court’s majority) that he thought the law was not justified by the Commerce Clause or the Necessary and Proper Clause, because rather than regulating existing economic activity it compelled people to enter into commerce. When one adds the dissenting justices, there were five votes on the Court for this restrictive view of the Commerce Clause. But that is not binding, because the law was upheld on other grounds. And while some have termed this a major restriction on Commerce Clause power, it is not clear that it will have significant impact going forward, as the individual mandate was the first and only time in over 200 years that Congress had in fact sought to compel people to engage in commerce. It’s just not a common way of regulating, so the fact that five justices think it’s an unconstitutional way of regulating is not likely to have much real-world significance.

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Jon Perr.

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UPDATE: The opinion is now up. http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

Update: UPHELD. Not under the commerce clause, but under the taxing authority of Congress.

Via SCOTUSblog:

“Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions.

The key comment on salvaging the Medicaid expansion is this (from Roberts): “Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)
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Hmm. This part is not so good. Removes big stick that permits administration to compel states to comply with Medicaid expansion. Republican governors could be really big problem.
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Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn’t. Her opinion on Commerce does not control.

Justice Ginsburg would uphold Medicaid just as Congress wrote it. That, too, is not controlling.
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In opening his statement in dissent, Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”
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Strikes down mandate. Sort of. “Upheld as a tax.”WTF? Looking for details. No, apparently it’s been upheld. CNN was wrong.

Roberts joins the left of the court in the decision. Medicaid provision is “limited but not invalidated.”

“The exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”

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Yeah, I’m gonna go with Reich. I don’t think SCOTUS will overturn the Affordable Care Act. I think they’ll fiddle with it (as in, striking the mandate but letting the test stand), but the last thing the conservative majority wants are the scary words “Medicare for all.” Which is the next step if they get rid of this.

Plus, I do think they’re starting to realize just how bad their reputations are, and their egos won’t want this as the nail in the coffin. We’ll see today if I’m right.

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Russ Feingold:

“I believe we’re in a constitutional crisis.”

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You know, while I’m not a lawyer, I’m pretty damned smart (smart enough that they made me take my 6th-grade IQ test over) and I know how to think – as foggy as my brain can be at times. And I have to say, I’ve never once thought Tony Scalia was particularly brilliant.

He reminds me of the drunken judge I used to date, someone who would talk around me in endless circles and I’d finally stop listening. (Which he always took as agreement.) Scalia’s a bully, and thinks might makes right. (In his case, he managed to appoint a president.)

As to the whole “strict constitutionalist” claim to fame – well, even if I believed it (which I don’t), the fact is, no one is capable of interpreting anything without a filter. No one. I’m well known for being maddeningly detached sometimes, but I’d never claim I wasn’t biased. Everyone is.

So we have a right-wing bully at the rhetorical wheel of the Supreme Court. Can’t wait to see what kind of twisted logic he comes up with tomorrow.

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Will SCOTUS rewrite the nation in their own image tomorrow? Stay tuned.

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Great piece about Scalia by a University of Colorado law professor:

Newt Gingrich has been described as a dumb person’s idea of a smart person. I’ve heard the same remark made about Antonin Scalia, and until today I would have said that was unfair. Scalia has always had a taste for over-the-top rhetorical flourishes, as well as an unnecessarily high opinion of his own intellect, but these weaknesses had to be balanced against … oh never mind, I can’t do this any longer.

Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.

Go read it all.

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