Category Archives: Law: Constitutional Law

When Is a Tax Not a Tax?

Posted on June 28, 2012 by Michael Froomkin

The Supreme Court has upheld the very large majority of the health care bill. In particular, it upheld the individual mandate 5-4 (with Roberts, without Kennedy) on the grounds that it is a tax — having rejected it as a valid application of the Commerce Clause.

But for purposes of the anti-Injunction Act (always my favorite grounds for decision, but pretty clearly not a winner after its reception below not to mention the oral argument and the Administration’s attempt to disclaim the argument), the individual mandate is not a tax.

That sounds odd. But the opinions are long, and I need to read them to see how that happened.

Update: The answer seems to be statutory interpretation — Congress gets to say when things (tax or not) are covered by the anti-injunction act, and the five Justices in the majority don’t see Congress as intending that result here given the choice of the word “penalty” for the mandate’s fines while “tax” was used elsewhere. The principle asserted is that for Constitutional purposes the Court must look through Congressional labels to see what things really are, but that for statutory interpretation involving the interplay of different statutes, in principle Congress gets to call things whatever it likes and here the Court is reading in the not-a-tax-for-anti-injunction-purposes meaning from the statutory word choices.

Posted in Law: Constitutional Law, Law: The Supremes | Comments Off on When Is a Tax Not a Tax?

Federal Court Enjoins Oppressive Florida Rule Designed to Make Voter Registration Difficult

Posted on May 31, 2012 by Michael Froomkin

Florida’s GOP war on (minority and Democratic) voters has two parts. First, there is the well-publicized effort to throw tens of thousands of legitimate voters off the rolls in ostensible pursuit of what may be only a handful of noncitizen voters at most.

The second, less-well-known effort, is a new set of Florida state rules that make it very difficult to register new voters, and create severe penalties for anyone who doesn’t precisely comply with them. These rules are so onerous that many groups that formerly routinely ran voter registration drives, like the League of Women Voters, stopped doing it because they found the new rules were impossible to comply with.

Now, thanks to a lawsuit by the League of Women Voters of Florida, Florida Public Interest Research Group Education Fund, and Rock the Vote, a federal judge in Tallahassee, no hotbed of liberalism, has issued a preliminary injunction halting enforcement of key parts of the voter-registration-suppression scheme:

The statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional even to the extent they do not violate the [National Voting Rights Act].

This is good news, and on a quick read I found the opinion very persuasive, so I have high hopes that it would survive an appeal (although voting law is not my area, so I welcome other views).

Posted in Florida, Law: Constitutional Law, Politics: The Party of Sleaze | 1 Comment

I Wish They Had Sought Recusal

Posted on April 5, 2012 by Michael Froomkin

Text of DOJ Letter to 5th Circuit Panel in Phvsician Hospitals of America v. Sebelius.

This letter is a temperate reply to the intemperate request by Judge Jerry E. Smith. I think Judge Smith’s impartiality could reasonably be questioned after his outburst. Cf. 28 USC § 144.

Update: Kevin Drum exposes the contempt of court hidden in plain sight in the DOJ letter. [link fixed, sorry]

Posted in Law: Constitutional Law | 1 Comment

Prof. Bolling Explains the New US Constitution

Posted on March 16, 2012 by Michael Froomkin

In easy-to-understand pictures.

Posted in Civil Liberties, Law: Constitutional Law | Comments Off on Prof. Bolling Explains the New US Constitution

Why Aren’t Corporation-People Seen as Slaves?

Posted on January 28, 2012 by Michael Froomkin

If ‘corporations are people too’ and they can be bought and sold, does that raise a 13th Amendment Issue? Obviously it does not, since it has not, but the inquiry as to why motivates a forthcoming paper by Jack Balkin and Sandy Levinson. See Corporations and the Thirteenth Amendment for more.

It seems almost obligatory to mention the very amusing novel by Dani Kollin & Eytan Kollin, The Unincorporated Man, which operates on the premise that society becomes organized on the principle that we are each a legal entity that raises capital by issuing shares in our future revenues — with the accompanying loss of important degrees of control over our fates if we don’t own a majority in ourselves. (One warning: I found the sequel, The Unincorporated War, to be an enormous disappointment. Not sure if I will read the next one.

Posted in Law: Constitutional Law | Comments Off on Why Aren’t Corporation-People Seen as Slaves?

Routing Around Champion v. Ames

Posted on October 25, 2011 by Michael Froomkin

Today’s Miami Herald presents a fun legal puzzle for the morning in You may be able to buy Powerball tickets online: Have the purveyors of LottoGopher managed to find a loophole in Champion v. Ames (“The Lottery Case”), 188 U. S. 321 (1903)? Champion famously held that Congress had the power to ban the sale of lottery tickets across state lines under the Commerce power. And the statute is still on the books. (Plus, most states ban online sales of their lottery tickets.)

Enter the intermediary. LottoGopher‘s pitch is that although you engage them to buy a ticket for you, the tickets stay in the state of origin. They don’t issue the ticket — they send someone to buy it from a licensed issuer. Plus, they say, they only sell tickets to people resident in the ticket’s state of origin. Thus, this, from the FAQ:

Is this legal?
Yes. We abide by all lottery commission regulations in each state. We are not engaged in the business of betting or wagering, and members of LottoGopher do not participate in unlawful Internet gambling. 28 U.S.C. 301 legally prohibits LottoGopher from offering its services to individuals and entities outside of the state of origin of the lottery game. The federal statute is aimed to curb that type of interstate activity, and we abide strictly by this interpretation. LottoGopher is registered to do business in every state we operate in. We follow all city, state and federal business registration and tax requirements. LottoGopher is not directly or indirectly, affiliated with any state lottery. We do not “sell” lottery tickets or participate in the earnings of any winnings nor do we receive any commissions from a lottery organization for rendering this service. In compliance with the state lottery we do not charge the consumer more or less than the $1 cost of each lottery ticket.

Indeed, LottoGopher’s description of its services seems drafted to route around Champion v. Ames:

LottoGopher is a messenger service that provides storage and handling of lottery tickets that our subscribers legally own. We are not affiliated with any state lottery and we do not participate in, nor offer, any type of lottery or gambling.

We abide by all lottery commission regulations in each state. LottoGopher is not engaged in the business of betting or wagering, and subscribers to LottoGopher do not participate in unlawful Internet gambling. 18 USC 1301 legally prohibits LottoGopher from offering its services to individuals and entities outside of the state of origin of the lottery game. The federal statute is aimed to curb that type of interstate activity, and LottoGopher abides strictly by this interpretation.

Our policy is to offer a cancellation at any time for any unused tickets up to 4 hours prior to the drawing. (Of course, there are no refunds for tickets in drawings that have already occurred). We are available by phone or email to answer any of your questions. You always have access to all of your account information online, and we strive to provide you with the most convenient customer service experience available.

Our headquarters are in Los Angeles, CA and we have representatives located across the U.S. to fulfill orders on behalf of our users in all the states that we offer our service. LottoGopher is registered to do business in every state we operate in. We follow all city, state and federal business registration and tax requirements. All of our transactions are reviewed by a Certified Public Accountant, and our secure credit card processing is provided by a domestic bank.

The messengers who purchase lottery tickets from official state lottery resellers are selected after a rigorous interview and background check process. They are insured and bonded before given extensive training to ensure the security of your tickets.

We guarantee in our Terms & Services that you are the legal owner of any lottery tickets you have requested. We maintain a sophisticated system that tracks your orders, ticket transportation and a secure storage method. We internally audit all procedures and follow Best Practices in all of our website functions, including:

  • Appropriate Safeguards to ensure age verification
  • Ensure user are physically located in a jurisdiction where lottery play is legal
  • Ensure all taxes due are collected
  • Safeguards to combat excessive or compulsive play
  • Privacy safeguards for subscribers

Our site does not provide any form of online gambling. We are a messenger and storage service for in-state residents only. LottoGopher has never broken Internet gaming laws and prohibits any version of online gambling or sports betting.

We never send unsolicited emails or advertisements targeted to minors or problem gamblers. We do not advertise in any way towards minors. LottoGopher is domestically owned, managed and registered in Los Angeles, CA, and has no affiliation with onshore or offshore sites that have illegally done business in the U.S.

All of our facilities are located in the US, and users must be at least 18 years of age (21 in certain states) as required by law. We verify the age and residence of all users of LottoGopher.com and post online the odds of winning at each lottery game as provided by the state lottery websites.

We also provide loss limits for each user who orders tickets for us to store on their behalf. We encourage our users to order services with prepaid cards and debit cards rather than credit cards, and discourage people who are delinquent on child support from using LottoGopher.com.

Looks like they may have a winning strategy — if they can police the state-by-state sales restrictions. What will happen, though, when a person falsely gives a local address? Or moves out state but doesn’t update the address? Or uses a friend as a mail drop? Or buys tickets while on vacation out of state?

Sounds like a student note topic, or at least a good Con Law I exam question.

Posted in Internet, Law: Constitutional Law | 3 Comments