Pearl Harbor remembrance 2020

     RIP. Never forget. (As I say about many patriotic days of remembrance)

     God bless.

Happy Thanksgiving 2020

     Well, I hope it's happy for you.

     God bless.

Veterans Day Week 2020

     Is Veterans Day enough, or should there be a whole week? In any case, never forget.

     God bless.

Is Stephen Breyer Severable? and Other Issues Posed by the Latest ACA Oral Argument

     This essay's title springs from the interesting troubles Justice Stephen Gerald Breyer had with his telephone in the oral arguments this morning in California v. Texas (and Texas v. California), 19-840 and 19-1019, a.k.a. "That Latest Obamacare Case". So, if a Justice doesn't participate in oral arguments (or part of them), does that make him "severable" from the arguments? --But first, some more serious stuff, also about severability, or other pertinent issues:

I. A Precedent of Precatory Purchase Mandates--Including Health-Insurance Purchase

     As per the transcript of the oral argument, the exchange of Breyer with Solicitor General Jeffrey Wall,

[JUSTICE BREYER:] But you have read through the U.S. Code, or someone in your office, and have learned that there is no word "shall" in a precatory phrase?
GENERAL WALL: Justice Breyer, I cannot vouch that I've read the entire United States Code.
JUSTICE BREYER: I -- I haven't either. I tell you, I haven't either.

, Transcript at 99-100: besides the unintentional comedy of two men protesting that they haven't read the whole Code, there is the issue of the commanding word "shall" in a precatory phrase. So, Respondents might argue, the presence of "shall" in the ACA insurance-purchase Mandate may seem to be a command, with violators being lawbreakers.
     However, one can go for persuasive authority (albeit not controlling authority) to many examples of city or state purchase mandates using words like "must" or "shall", but being merely precatory and without penalty. The present author collected a number of them in his 19-840 amicus brief--including a number of Georgia gun-purchase precatory mandates--, but for now shall cite only the 2008 New Jersey mandate to buy health insurance for minors, see N.J. Stat. Ann. § 26:15-2, “Coverage provided for residents 18 years of age and younger; terms defined.” (2008; available at, e.g., https://tinyurl.com/NJPrecatoryKidsMandate),

a. Beginning one year after the date of enactment of this act, all residents of this State 18 years of age and younger shall obtain and maintain health care coverage that provides hospital and medical benefits. [etc.]

Id. So there is the magic word "shall", in a precatory health-insurance purchase mandate, and with no penalty mentioned, see id. It is not a federal law, true, but it shows that there is at least one "true mandate" (if the word "shall" is key) for health-insurance purchase without any penalty.

II. H. Bartow Farr's Amicus Brief for Complete Severability Is...Completely for Severability

     General Wall also said, in the transcript at 114-115, of the finding(s) in 42 U.S.C. § 18091(2)(I) and environs, when speaking with Justice Kavanaugh,

It says the mandate, a requirement that you get into the market, is essential to guaranteed issue and community rating.
And if, as the joint dissenters said in NFIB, once that triad is down and as the Court-appointed amicus said there, it's very hard to limit it to the triad. It takes down the other pieces of the Act.

Id. However, H. Bartow Farr III's Brief for Court-Appointed Amicus Curiae Supporting Complete Severability (Severability) in 11-393 and 11-400 (Feb. 17, 2012), available at https://tinyurl.com/FarrSeverabilityBrief, says,

Because the effects of invalidating the guaranteed issue and community rating provisions could not easily be limited to just those provisions, the potential spillover effect makes it even less likely that Congress intend for them to be deemed inseverable....
     Taken as a whole, therefore, the evidence does not establish that the Court should take the extraordinary step of striking down the guaranteed issue and community rating provisions. [etc.]

Br. at 46-47. This sounds different from what Wall says, which sounds like Bartow Farr was supporting striking down the whole Act if the "triad" (Mandate/guaranteed issue/community rating) was gone, when Farr was going largely in the opposite direction, i.e., giving reasons not to strike down guaranteed issue and community rating.
     When Farr went to the trouble to write a whole brief for complete severability, it would not be good to give a false portrayal of what he said.

III. Comedy at the Court: Can Breyer Be Severed from the Argument? Etc.

     On a lighter note (but one with interesting lessons): again, Breyer had some phone problems (just as, notoriously, there may also have been "toilet-related issues" vis-à-vis a phone appearance of his back in May, so that there's now a pattern of phone fun with the Justice):

JUSTICE BREYER: Something happened. I'm sorry. My machine didn't work.
JUSTICE ALITO: Yeah, I thought Justice Breyer was still on his time.
....
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Justice -- Justice Breyer, we apologize for the audio difficulties and we'll go back to you.
JUSTICE BREYER: Oh, that -- that's all right. It's not a problem. Go ahead. I'm good.

Transcript at 42, 45. So does this mean that Breyer is severable from the oral argument? (He came in for later rounds after his phone failure during Don Verrilli's argument, so Breyer was not totally absent from the whole argument; but he was partially absent, which is unusual.) Does the oral argument fail to be valid because one "essential" Member of the Court was not all there?
     The present author comes out for severability in this instance. Everyone loves Breyer, but his presence, while "proper", was not totally "necessary" to the oral inquisition, so the argument was still valid.
     This has lessons for the merits of the case, actually. That is, 1) While the zero-penalty Mandate (and its precursor, the Mandate with penalty), may drive some people to buy health insurance, money is a fungible thing, so that other causes (e.g., Obamacare subsidies tempting people to buy health insurance) may keep the system afloat enough so that it doesn't sink. 2) Number 1, above, mirrors the absence of Breyer from the argument. So the argument missed some "essential" content, but was not damaged enough to make Breyer's absence inseverable; and an ACA missing the Mandate, or insurance purchases driven by the Mandate, is not damaged enough to make the Mandate inseverable.
     All told, a good day for severability.

     Some more comedy brings us back to the issue of "precatory mandates":

JUSTICE BREYER: Well, as you say that, it reminds me in English, have I ever said or have you ever said to someone in your family, you "shall" do it but that is an entreaty, an entreaty or a supplication, rather than threatening a punishment? Have you ever heard that or used "shall" in respect to a supplication or an entreaty?
GENERAL WALL: No, Justice Breyer. In my family, when I tell my kids that they shall do things, they're -- that's a command backed by a penalty.
JUSTICE BREYER: Well, that's a much more organized family than mine.

Transcript pp. 100-101. The amusing contrast between "conservative" and "liberal" families aside ("authoritarian" vs. "permissive"), the Solicitor General's comment actually hurts his case, as he is saying that a command has to be backed by a penalty to be serious. Thus, the zeroed-out Mandate cannot really be taken seriously, just as Petitioners are arguing.

IV. Conclusion: Some Lessons of Legal Humor in a Difficult Time for Americans and Their Health

     The law is an infamously boring field at times. "Legalese" is even a curse word of sorts. But in all the juridical mess that lawyers and laypeople have to swim through, there are moments of unexpected lightness, serendipitous, which not only entertain but also enlighten. Even with all the serious damage that could result from the overturning of the ACA, in a time of approaching a quarter-million COVID dead in America alone, the humor provided by Justice Breyer and his various straightmen, supra, reminds us to keep being human even in "the valley of the shadow of death" (Psalm 23:4). This is a gift that the present author, and others, may remember for a long time.

9/11 weekend remembrance

     RIP. Never forget.

     God bless.

Happy 4th of July 2020

     God bless America. And everywhere else. And you.

"Trump v. Vance" in the Time of Trump's Bleach Treatment Protocols

     With Trump v. Vance, 19-635 in the Supreme Court of the United States, a case involving issues such as Presidential immunity from criminal process (!!), coming up on May 12 for oral arguments, one notes that recent events, truth much stranger than fiction, have underlined the importance of holding any Chief Executive responsible for at least some of the damage he/she may do, through malice, recklessness, or just plain stupidity.

     As is widely known, Donald Trump recently recommended that people consider using household cleaners (bleach, etc.), not on their kitchen counters, but on themselves, to treat COVID-19; see, e.g., Jason Slotkin, NYC Poison Control Sees Uptick In Calls After Trump's Disinfectant Comments, NPR.org, Apr. 25, 2020, 7:13 p.m. But to hold Trump responsible for anything he does in an official capacity may be difficult, cf., e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982) (no presidential liability for civil damages for official acts). So starting a needless nuclear war, or invading Iraq though they didn't attack us, or causing Americans to die from swallowing Clorox or injecting Lysol, may all be unpunishable even if the President is responsible.

     Going from Lysol to Lysenko: Jonathan Chait has noticed that Trump's grip on science resembles Joseph Stalin's attachment to biologist Trofim Lysenko's pseudoscientific theories about genetics, see Chait's Why Trump Is Overruling Scientists to Pursue His Pet Coronavirus, New York, Apr. 6, 2020:

Lysenko was able to manipulate communist ideology to discredit mainstream science on ideological grounds. Trump’s hydroxychloroquine claims have done something similar with conservative populism, tapping into the right’s mistrust of bureaucrats and educated elitists. [etc.]

Id. So, whether on the Left, or the Right, any leader, or President, needs to be accountable to the people. American presidents may not be more accountable than Stalin for evils done in an official capacity, cf. Nixon v. Fitzgerald, supra. But even if criminal accountability does not exist for something a President does officially, e.g., urging people to inject bleach as part of a national TV address, there could at least be accountability for unofficial criminal acts, say, if a President were crazy enough actually to inject someone with bleach himself, playing "Dr. Death" despite not having a medical license.
     That horrible latter possibility underlines how important is it to hold a President criminally accountable for unofficial acts he may do during, or may have done before, his Presidency, e.g., sexually assaulting a White House intern (a scenario mentioned in one's own brief in Trump v. Vance), or indulging in financial skulduggery requiring a Congressional subpoena for his records, the scenario (according to New York County D.A. Cyrus R. Vance, Jr.) in 19-635 itself. Clinton v. Jones, 520 U.S. 681 (1997) (no immunity from civil litigation in federal court for acts prior to and unrelated to taking office) and United States v. Nixon, 418 U.S. 683 (1974) (forcing President Nixon to surrender tape recordings and other subpoenaed materials) could be helpful here, in showing that executive privilege is not unlimited.

     Finally, the title of this post reflects, among other things, Gabriel García Márquez's novel Love in the Time of Cholera, a story referencing plague. In our own dark times of plague--and they are very dark, a reality too dark to bleach out of existence--, people may find some temporary emotional relief by name-calling or fun-making, e.g., calling Trump "Clorox Don", or what-have-you. But more important than such wordplay, of course, is to hold our presidents accountable: under the law, not above it. If the Supreme Court refuses to recognize this, "equal justice under law" may have died--showing that COVID-19 is not the only plague, since lawlessness and injustice, in our Republic "of laws, not of men", can be considered plagues in themselves.

RIP Little Richard

     Not just a musician but also a preacher, gone to the Lord at 87.

     Heaven'll be a little a lot louder tonight.

     RIP LR.