The BLS Advocate

The ObamaCare Decision: A Roadmap

Twenty-five states joined Florida in its challenge of the ACA: South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia, Alaska, Ohio, Kansas, Wyoming, Wisconsin, Maine, Michigan, and Iowa. Ultimately, the Court decided to uphold the law. Here, Christopher “Jack” Knorps breaks down the 180-page decision.

CHIEF JUSTICE ROBERTS’ MAJORITY OPINION
Intro: Marbury v. Madison, a brief history of the Court (1-7)
Part I: Procedural History* (7-11)
Part II: Anti-Injunction Act * (11-15)
Part III: Commerce Clause (“CC”) Intro (15)
Part III-A: Government’s Arguments Intro (CC + Necessary & Proper “N&P” Clause) (16-17)
Part III-A-1: CC Destruction (17-27)
Part III-A-2: N&P Clause Destruction (27-30)
Part III-B: Construing the Act as a Tax May Save It From Unconstitutionality (31-32)
Part III-C: Taxing Power is Broad* (33-44)
Part III-D: Ginsburg’s CC Analysis is Wrong (44-45)
Part IV-A: Medicaid Expansion Conscripts States into a National Bureaucratic Army/Coercive† (45-55)
Part IV-B: But States Can Still Sign Up for the ACA’s Medicaid Expansion If They Want† (55-59)
*Majority of the Court
†Roberts joined by Breyer and Kagan

JUSTICE GINSBURG’S CONCURRING OPINION
Part I: Intro to Economic and Social Welfare Reform Decisions! (1-3)
Part I-A: Backdrop of the ACA! (3-5)
Part I-B: More Problems Created by the Uninsured! (5-7)
Part I-C: Cost-Shifting! (7-8)
Part I-D: Congress could have instituted a Single-Payer System, but Chose the ACA instead! (8-12)
Part I-Conclusion: Deference to Congress under CC and N&P Clause! (12)
Part II-A: CC-Framer’s Intent! (12-14)
Part II-B: Only Should Be Struck Down if Congress Plainly Acted Irrationally! (14-16)
Part II-C: ACA Easily Meets the Criterion of the CC! (16-18)
Part II-D: CC Power Does Not Permit Congress to “Compel Individuals to Become Active in Commerce by Purchasing a Product”! (18)
Part II-D-1-a: Roberts is Wrong about Our CC Precedents! (18-23)
Part II-D-1-b: Case Law Does Not Toe the Activity Versus Inactivity Line! (23-27)
Part II-D-2: Roberts’ Fear of the “Broccoli Horrible” is Unfounded! (27-31)
Part II-D-3: Constriction of the CC Hinders Congress’s Ability to Adapt to New Realities! (31)
Part III-A: Guaranteed-Issue and Community-Rating Provisions Lend More Support for Constitutionality! (31-33)
Part III-B: Minimum Coverage Provision Acts Directly on Individuals, not States! (33-36)
Part IV: Taxing Power Broad; Roberts’s CC Analysis Puzzling Since Not Outcome-Determinative! (37)
Part V: Medicaid Expansion Does Not Violate Spending Power –1^st Time Struck Down on Such Grounds# (38-41)
Part V-A: Medicaid Expanded 50 Times Since 1965; Federal Spending Grew 631 MM to 269 BB# (41-45)
Part V-B: Discussion of the Spending Clause and South Dakota v. Dole, 483 U.S. 203 (1987)# (45-48)
Part V-C: Challenge to the Notion that Medicaid Expansion is Unconstitutionally Coercive# (48)
Part V-C-1: Medicaid Expansion is Not a “New” Medicaid Program# (48-51)
Part V-C-2: States Not Being “Surprised” by the Expansion; Look to Bowen, Not Pennhurst# (54-56)
Part V-C-3: Roberts Fails to Draw the Line Where Persuasion Gives Way to Coercion# (56-60)
Part V-D: Agrees with Roberts on Severability of Medicaid & Validity of Individual Mandate# (60-61)
!-Ginsburg joined by Sotomayor, Breyer, and Kagan
#-Ginsburg joined by Sotomayor

JUSTICE SCALIA’S DISSENTING OPINION (Joined by Kennedy, Thomas, and Alito)
Introduction: Concedes that Inactivity Could Come Under Criterion of CC, but Would Extend It Too Far (1-4)
Part I: Uphold Individual Mandate under the CC and Congress can regulate Breathing In-and-Out (4-5)
Part I-A: New York, Printz, Lopez, Morrison teach that CC does not give Congress Carte Blanche (5-10)
Part I-B: Wickard is #1 and Perez is #2 in CC Expansion—but They at Least Involved “Activity” (10-13)
Part I-C: “Activity” Must be Regulated, not “Inactivity,” Such as Failure to Buy Broccoli or Cars (13-16)
Part II: To Say That the Individual Mandate Merely Imposes a Tax is to Rewrite the Statute (16-26)
Part III: Anti-Injunction Act Inapplicable Since Act not Within Taxing Power; “Verbal Wizardry” (26-28)
Part IV: Medicaid Expansion Commands Too Severe a Sanction for States That Fail to Comply (28-29)
Part IV-A: Concedes that Court Gives Congress Wide Leeway in Spending Power since Butler (29-30)
Part IV-B: Cites Huge Growth of “Grants-in-Aid” from $20 BB (adj.) in 1950 to $608 BB in 2010 (30-31)
Part IV-C: If Conditions Attached to Federal Monetary Grants, States Must Have Real Choice (31-35)
Part IV-D-1: Distinguishes Dole: Minimum Drinking Age Act was Not “Coercive” (35-36)
Part IV-D-2: If States Opt-out of Medicaid Expansion, Tax Increases on Residents May Follow (36-38)
Part IV-E: Coercive Nature of an “Offer” Must be Unmistakably Clear (38)
Part IV-E-1: Medicaid Backdrop: States Have a Huge Reliance on Federal Funding for Medicaid (38-42)
Part IV-E-2: The ACA was Clearly Designed so that No State Could Possibly Refuse the “Offer” (42-46)
Part IV-F: Court finds Medicaid Expansion Unconstitutional, but Violates Severability Doctrine (46-48)
Part V: If Two Major Provisions of the Act are Unconstitutional, the Entire Act Must Fall (48-49)
Part V-A: Severability Analysis: 2-Part Test in Alaska Airlines Inc. v. Brock, 480 U.S. 678 (1987) (49-51)
Part V-B: The Evidence of “Togetherness” in the Statute (51-54)
Part V-C: A Quick Note on Standing Before We Apply the Severability Principles to the Act (54-55)
Part V-C-1: Absent Invalid Portions of the Act, Major Provisions could Pose a Threat to Nation (55-56)
Part V-C-1-a: Fears Increases in Premiums & Uncertainties Imposed on Insurance Companies (56-57)
Part V-C-1-b: Uncertainty in Hospital Reimbursements/Reducing Medicare Expenditures (57-59)
Part V-C-1-c: If Major Provisions Fall, Insurance “Exchanges” Cannot Operate as Planned (59-61)
Part V-C-1-d: Employer-Responsibility Assessment is Invalid for Two Reasons (61-62)
Part V-C-2: Unbelievable That Congress Would Have Enacted Minor Provisions Independently (62-64)
Conclusion: The Court Has Saved a Statute That Congress Did Not Write (64-65)

JUSTICE THOMAS’ DISSENT
Dissent: Rescind “Substantial Effects” Test (See separate opinions in Morrison, Lopez, and Raich) (1-2)

Inter Alia: Monthly Legal News Recap

• BLS bids farewell to the Class of 2012; EDNY Chief Judge Carol Bagley Amon cracks a few good jokes before imploring grads to pick up their phones when their mothers call.
• The NYC chapter of the Guild  honors Cristina Lee, ’12, and Emily Jane Goodman, ’68, among others.
• Mike Scala, ’12, makes it onto the Congressional ballot for NY’s 5th District. [Scala for Congress]

Spoiler Alert: “The Book of Mormon” is Awesome! (Theater Review)

Act I

The creators of South Park, Trey Parker and Matt Stone, say that The Book of Mormon, their musical satire and first Broadway show about the Church of Jesus Christ of Latter-day Saints, took seven years to create and was their most difficult endeavor to date. Now a year into its running, The Book of Mormon is the hottest ticket on Broadway, winning nine Tony Awards and selling-out the Eugene O’Neill Theatre night after night. Over spring break I was fortunate enough to make it my first Broadway experience.

The Book of Mormon did not deviate from the South Park-style of humor, which seizes on topics susceptible to acute political correctness or sacrosanctity, and pulverizes them with one of the most brutal strains of Juvenalian satire. The musical comes at a time when the Mormon Church is growing in both members and in influence. This latent (or latter-day) Christian theology founded in the 1830s by Joseph Smith, right here in New York, has shown an impressive ability to gain (or compete for) converts. Mormons started playing a larger role on the national stage, making sizeable political contributions and expressing their beliefs on topics of the day; and the rest of the country has started to take notice, and sometimes pause, as the foundations of the Mormon faith become more publicized: California’s Proposition 8 referendum banning gay-marriage was the result of a grass-roots movement heavily sponsored by the Church.

The success of Prop 8 highlighted what could be described as both a conservative and fundamentalist streak within the Mormon community. Other instances, like the arrest of Warren Jeffs, whose sect of Mormonism practiced polygamy and enlisted underage girls to marry older men, re-dredge some the Church’s history and the difficulties it faced in becoming a legitimate organization. (Only a little over 30 years ago, the Church allowed African-American men to become priests.)

Efforts at the ballot box have proven effective, as there are now 15 Mormons in Congress including the Senate Majority Leader Harry Reid. In the 2012 election cycle, Mitt Romney, a life-long Mormon, currently has the most delegates for the Republican presidential nomination. Notably, he has been forced to address questions about how his faith informs his views on abortion, gay-marriage, and stem cell research. Whatever Romney’s views are, Mormons in the political arena have not been as homogenous as one might expect from such a close-knit Church.

Act II

With the ostentatious façade of a Mormon temple providing a thematic frame around the performance, the musical begins with a reenactment of Joseph Smith’s encounter with the angel Moroni, who bestowed on Smith the Golden Plates containing the Mormon theology as preserved by Nephi, an ancient and, until then, unknown prophet.

From there, the story follows Elder Kevin Price, the supposed archetype of a young Mormon preparing for his two year mission. Kevin is designated to lead his classmates from the LDS Church Missionary Training Center (Provo, Utah) on the mission, with the goal of spreading the truth of the Mormon faith. All of the missionaries are anxious because they await their orders from the church on where they will spend the two-year mission. Kevin sings with zeal and unstoppable faith as he longs to be stationed in Orlando, Florida, which he believes to be paradise—part biblical, part Disney. Kevin is shattered when he finds out he has been chosen to mission in Uganda. To worsen his lot, Kevin is assigned a mission partner, Elder Arnold Cunningham, a short, round teen who is a compulsive liar as a result of his low self-esteem.

Kevin, Arnold, and the other missionaries arrive in a Ugandan village stereotypically rife with famine and AIDS victims. The missionaries find the natives difficult and unreceptive to the Mormon teachings. The natives go into explicit detail about the reality they live in, having to live with an AIDS epidemic, widespread lawlessness, seemingly permanent poverty, and the terror of being ruled by a local warlord—far removed from the tranquility of Utah. The natives’ existence instills in them a natural doubt that their condition will ever improve, and they see the missionaries attempt to convert them as self-serving, with the theology of Joseph Smith being nothing more than a whimsical fairytale, transparently used to give people a false sense of hope.

In trying to spread the faith, Kevin finds that the story supplied by Mormonism, and to a lesser extent Christianity in general, is a hoax which does not contain the great wisdom and divinity that the Bible and the Church leaders promised. This is contrasted by Arnold’s willingness to take the teachings of Mormonism and refashion them into a new theological narrative, one the natives can relate to in their miserable lives. The natives begin to accept Arnold’s interpretation of The Book of Mormon, but that interpretation is a patchwork of untruths borrowed from The Lord of the Rings, Star Wars, and a host of other references from pop culture, comic books, and science fiction. The great irony is that Arnold is able to relay the spirit of the Mormon teachings even though he discards the boilerplate Mormon theology, replacing it with an amalgamation of pop culture references which—together—somehow retains all the symbols, themes, and virtues typical of organized religions. The lie works better than the truth for accomplishing the mission: The corollary and parallel irony is the ability of a nonsensical theology, perhaps even bold deception, to get people to improve their lives and the lives of others.

The climax of the narrative brings the church leaders to Uganda to observe the good works of their missionaries. However, when the natives are questioned about the tenants of the faith they begin spouting off jumbled tales and stories pulled from pop culture. The aldermen become irate and pronounce the mission a failure and stain upon the Church. Finally, Arnold, being the pathological liar, is able to redeem the mission by making it seem as though the natives really do know the true Mormon faith, with the misunderstanding arising from translation difficulties.

The production aspects of the The Book of Mormon were outstanding and real to the audience. At two and a half hours, there was a lot more singing than one might anticipate. The singing helped to highlight the spiritual conflicts, and certainly reinforced the theme that in order to be a Mormon you must be full of optimism and absolutely free of doubt. In some sense, the performance patronizes and mocks Mormons, but plenty of details in the play allow for sympathy, too—they are portrayed as bizarrely decent people, who have a spiritual mission to improve the world and pick up a few converts along the way.

Op-Ed: BLSConnect, The Metamorphosis

It’s campaign season, the time of year for personal reinvention.

On Monday morning, 6:56 a.m. EST, the IT Team announced the launch of a remodeled BLSConnect. As is often the case with such declarations, the tone of the missive flitted between modesty and self-approval. The IT Team, after all, was eager to demonstrate its mettle, especially after months of dickey servers and log-in problems.

In the e-mail, fancy tech features were trotted out like show dogs. The new Connect would boast “improved search and navigation functionality.” There would be more links, an innovative calendar. And because the revamped interface was modeled according to student “feedback,” a refined navigational dashboard would now guide meandering users compass-like where its predecessor had merely spun about.

But, alas, the inaugural ticker tape was deployed too early. When students awoke from their fitful dreams, they found the good old BLSConnect “welcome screen” transformed into a hideous error message. User names and passwords were rendered useless. Pretty soon the IT Team had sent out another e-mail, this one an apology. Apparently, it conceded, people were experiencing “log-in problems.” Many people.

How well does this auger for the new BLSConnect? Surely in its race to win over the student body, the IT Team had wished to start anew, to put behind them not only the widely reviled original Connect, but the persistent sentiment around campus that the Team itself couldn’t handle user demand. Premiering the new system simply to have it crash, like a maiden cruise liner listing toward the jetty, could only undermine the IT Department’s credibility.

Yet politics, whether national or campus-wide, are all about comebacks. By Tuesday, the Team had sent out another e-mail. They had seemingly corrected the problem, whatever it had been. Students could now log in and explore the new Connect. Gone were the clunky interface, the crowded menu bar, the dizzyingly unintuitive navigation options. Missing, too, was the Public Interest tab, apparently a relic from a more compassionate time. In their place, users found softer edges, sharper connections. And like a luminous Arkansas presidential nominee having weathered a scandal, the Connect site emerged reborn.

Inaugurations are odd. They’re celebrations of the untested. The newly elected politician is met with jubilation and good cheer, despite having pronounced nothing but promises. So too the announcement of a new tech product; it’s only a vague assurance of improved performance. The real test begins once the ticker tape is swept from the public square.

Maybe it’s simply my American affection for the underdog, but the IT Team, one of BLS’s most recognized and publicly discussed departments, has all the makings of a great politician. They disappoint, they fail, they flounder. Sometimes we wish them ill. But they always apologize, dust themselves off, and try to win us back.

So, You Want to Win an Election?

Imagine this: You’re at work one day long after law school has ended. One of your clients comes in for a meeting and asks you to assist him with his latest project: writing the basic rules for his new country. You’re a little skeptical about this because you work in family law, but it’s been a slow week and he’s paying in cash.

A week passes. You’ve dotted your “Is,” crossed your “Ts” and everything looks great. Your client asked for democratically elected leaders, so you gave everyone the right to vote. And that’s what he calls you about, the next day, in a panic, saying, “Well, you know, I’d like to make sure my friends and I stay in power. Can you do that for me?” You now find yourself with two choices: Refuse on ethical grounds and take the money that he owes you, or make the changes because you knew he wasn’t serious to begin with (despite reading that 1,500 law students got together somewhere and bought an island). History shows that our leaders have asked, “how do I stay in power” from the beginning. Current events show us they still do.

There are two, and only two steps to winning an election: (1) convince people to vote for you, and (2) prevent people from voting for your opponent. Step (1) is fairly straightforward. The candidate presents himself (or herself) to the people via TV commercials, in-person appearances, debates, and The View in an effort to convince voters that he (or she) will be a good elected official. When we think of step (2), most of us probably think about attack ads and unsavory former acquaintances that either push candidates out of the race or make voters think twice about the candidate. However, our politicians have been far more creative than that:

• During the Constitutional Convention, the Southern States gave the Northern States a choice: write protections for slavery into the Constitution, or have more than one country. The North took the first choice. Among these protections were the creation of the House of Representatives and the Electoral College. Population determined representation in both. Free persons were counted as one person and slaves as 3/5 of a person. Therefore, any state with slaves received extra votes in the House and the Electoral College. The result: 10 of the first 15 U.S. Presidents were slaveholders. (Which may partially explain why the number of slaves tripled by 1845.)

• After the Civil War and the passage of the Thirteenth and Fourteenth Amendments, the former Confederate States found themselves with zero slaves, and a lot of new citizens. These new citizens outnumbered their former masters in Mississippi, Louisiana, and South Carolina, and made up a sizeable chunk of the citizens in the other Confederate States. The elected officials, legitimately concerned with the possibility that former slaves were likely to vote former slaveholders out of office, invented ways to prevent them from exercising their right to vote. Among these were poll taxes, threats, and intimidation. There were also tests. Voters would be asked questions such as, “how many bubbles are in a bar of soap?” Amazingly, none of the black voters could answer this question correctly, but all of the white voters could.

• Poll taxes were eliminated in 1964. The Voting Rights Act was signed in 1965, ending official race-based discrimination. President Nixon began the “War on Drugs” began in 1970. How does this correlate? The Fourteenth Amendment provides that the right to vote cannot be denied for a citizen over the age of 21, but that it may be denied if the person has participated in a rebellion or “other crime.” The U.S. prison population was near 500,000 in 1970. Today it is 2.2 million. Another 3 million people are on parole, probation, or otherwise subject to the jurisdiction of the penal system. In 2009, 12% (1.6 million) of all arrests were for drug abuse violations. Almost all of these people cannot vote. The prisoners? Disproportionately minority and disproportionately poor. Before 2008, only two states allowed all of their citizens the right to vote: Maine and Vermont. Kentucky and Virginia bar people with felony convictions from voting for life. The rest of the states fall somewhere in the middle.

Since 2008, the Republican Party has made no secret of its desire to see President Obama voted out of office in November. What has been less obvious until recently are some of the steps being taken to accomplish this goal:

• In June 2011, Maine’s Republican-led Legislature passed a measure ending Election Day voting registration. In November, the citizens of Maine voted to overturn the new law.
• Nine states introduced bills to reduce early voting periods. These bills [pdf] became law in Florida, Georgia, Ohio, Tennessee, and West Virginia. Florida’s law specifically ends early voting on the Sunday before the election – a day historically known for its high turnout of Black voters.
• An Arizona law requiring voters to show proof of citizenship was struck down. Kansas Secretary of State Kris Kobach is trying to make a similar measure effective before November. In all, 12 states have introduced proof of citizenship legislation [pdf]. Only two states previously had such laws.
• Florida and Iowa used to end felons voting rights for life. Within the last few years, both restored the voting rights of their former prisoners. Recently, these restorations were overturned, affecting 200,000 former prisoners.
• Before 2011, only two states required photo IDs to vote. However, 34 states introduced legislation requiring photo ID to vote. Seven of these bills are now law. 21 million citizens do not possess a government-issued photo ID.

All of these measures are more likely to affect people voting for Democrats.

Our elected officials tell us that they introduced these bills to protect us against voter fraud. In the words of Stephen Colbert, “What fraud?” Voter fraud happens .00004% of the time. This means that if all 300 million U.S. citizens (including babies) voted, only 12,000 of these votes would be fraudulent.

Voting is not simply a way to choose leaders. Voting provides people a chance to directly impact how their government is run and express an opinion that might not otherwise be heard. Regardless of whether you consider voting a privilege or a right, one thing is clear: our elected officials want to win, and the voices of people who don’t vote, can’t vote, or are less likely to vote simply don’t matter.

My proposition: give all citizens over 18 the right to vote, without restriction. Allow your favorite politicians to take losses if they aren’t good enough at their jobs to get re-elected. Give them little incentive to win by displacing the competition or scaring us with false information. After all, I bet that most of us prefer our elected officials be honest with us rather than having us realize that their logic is insane.

I admit that you don’t have to go along with my proposition. But, you can petition your elected officials on the state and federal level, and ask them to consider ways to make sure the 2012 election is as fair as possible. For example:

• Don’t discriminate against equally valid forms of ID. The Texas ID law makes concealed carry permits acceptable, but student IDs unacceptable. Both are government issued IDs (at least in the case of public schools). However, the students are more likely to vote Democrat and the gun carriers are more likely to vote Republican, helping one party at the expense of the other.

• Make the proof of citizenship laws go into effect after November. Otherwise, the government is asking its citizens to (1) learn about the law, (2) locate birth certificates and naturalization papers, (3) in the case of married women, change their birth certificates and passports to match the married name, and/or (4) obtain a U.S. passport, which requires several proofs of its own all in nine months! Not only do these actions take time and money (harder to get for poorer people, who generally vote Democratic), only 30% of U.S. citizens have passportsbecause there is no reason to get a passport unless you leave the country.

• If voter fraud is the basis of the new law, request a stronger factual basis for the existence of rampant voter fraud, instead of telling us 31 people in Florida voted fraudulently. After all, the last time we agreed to something with scant evidence, the U.S. military ended up in Iraq for ten years.

Granted, your elected officials may not listen to requests that are against their own interests. Further, you may actually prefer that fewer members of the other party vote because it gives your guy a better chance of winning. (Of course, this means you can’t complain if the party you dislike does the same thing in the future.) But, if you choose to contact your representatives, they will know a potential vote is paying attention to their actions, and that check on their power is what democracy is supposed to be all about anyway.

Alternatively, I just heard of an island for sale…

Notions to Dismiss: Two Sides of a Coin?

Illustration by Shaina Rubin

Last time out, I took a look at the recent growth of populist activism in America, both on the right and the left, and the impact it has had on our politics and national discourse. There is no question that we currently have a more engaged electorate than at any other time in recent history, and the effects of this have been quite substantial. However, attempting to discern what this might mean for our future requires a closer look at the individual movements themselves. Upon such an examination, it becomes pretty clear just how different these movements are and how much those differences will affect the impact they have on our politics going forward.

On one hand we have Occupy Wall Street and the related demonstrations that have taken place around the world. At first, this movement was largely dismissed by commentators as disorganized and lacking in a cohesive message. In the end, Occupy’s initial “defects” may have proven to be its greatest strengths, as the movement was never about bringing change from the top down, or even via the ballot box.

Occupy was about changing the way we all think about the problems facing our society, and, the organically democratic message which eventually grew out of the movement was able to accomplish this in a way that no set of pre-planned, focus-group-approved platitudes could ever even approach. “We are the 99%” is the wet dream of every political strategist from K Street to Wasilla, and yet not one of them can take any credit for it. Like everything associated with Occupy, it belongs to the people.

It is this very strength, however, that also serves to limit Occupy’s direct impact on our political process. Surely the ideas that have arisen from the movement will continue to resonate with both politicians and voters, but it seems unlikely that Occupy will take any formal role in the upcoming election.

For one thing, the movement just isn’t built for it.  Campaigns require hierarchical control systems and business-like efficiency. The individual volunteers don’t get a say in the message or the medium. On the other hand, Occupy encampments operated like Marxist communes, each individual getting a say on everything from the wording of official statements to how many times the bathrooms would be cleaned each day.  It’s pretty hard to run a campaign that way…

Furthermore, the Occupy movement never had any interest in connecting or integrating itself with the Democratic Party (or any other major political party for that matter). Its ideals are, without doubt, much further to the left of anything the Democratic Party could ever publicly embrace. So, although many Democratic politicians can now be subtly, or even overtly, heard invoking the language of Occupy, no effort was ever made to formally join the two – any such attempt would have surely ended in failure or worse.

Plain and simple, it’s pretty hard to imagine Occupy Wall Street having a direct impact at the ballot box in November.

But, what about on the other side?

Personally, I think it is on this point that the Tea Party and Occupy movements are most different – even more so than in their core ideologies, which share many basic elements of populist outrage.

From day one, the Tea Party was determined to make changes within our political system, first via constituent pressure on elected officials and then via the ballot box. Before long, the Tea Party had structured itself into a network of semi-autonomous organizations, capable of acting independently, yet able to work in cohesion through coordinated messaging from Americans for Prosperity and massive funding from the Koch brothers. Although infighting and competition would eventually fracture this network to an extent, there still exists a clear consensus on matters as pivotal as the movement’s very moment of origin: Rick Santelli’s visceral 2009 rant on CNBC. So long as that degree of commonality is present, there will always be the potential for great unity in this movement.

And, unlike Occupy, the Tea Party was bred for politics and structured to be maximally effective in that arena. Despite its populist roots, there is definite potential for top-down control of the movement through its organizational structure. When wielded properly, the movement can be focused on particular targets and goals to great effect. The historic electoral gains made by the GOP in 2010 are a resounding testament to this.

Again, unlike Occupy, the Tea Party became the twinkle in the eyes of the Republican establishment. If only it could be harnessed, the movement represented a coalition of energized voters that could deliver electoral majorities for years to come. The thought was simply too good to be true.

And, indeed it was, as this was a tail that refused to be wagged on command by a dog that it viewed as unfit to be giving out the orders. Like any real populist movement – heads or tails – the Tea Party cannot be simply co-opted by party bosses in Washington, and they have proven that beyond any shred of a doubt.

True enough, the GOP rode the Tea Party to victory in the midterm elections, but at what cost? Looking ahead to November, that cost just might be more than the Republicans can bear.

Let’s pick up from there next time…

– Mike Berman, a graduating 3L and life-long lover of all things politics, was proud to serve as Speaker of Assembly A at the 2002 New Jersey Youth and Government Conference. He can be reached for comment through his publicist: @bermorama.

Op-Ed: Make Your Voices Heard

“What are their demands?”

“Have you seen them? They’re so dirty and smelly!”

“Why are they protesting at Wall Street?”

“They don’t know what they’re talking about.”

These are a few of the questions and statements I’ve heard from many of my fellow law students about the Occupy Wall Street protest over the past few weeks. Many Brooklyn Law students seem to misunderstand, express unease, or even have outright contempt for what’s happening down in Zuccotti Park near Wall Street. I think that this protest is important to understand, because these protests demonstrate an intense disapproval with the corruption and greed that led to the current economic crisis. Some students have participated, either as protesters or legal observers, but this is addressed to the majority of students.

I was excited to join this protest when I first got a Facebook invite in August just after I moved to New York. I spent most of last spring in Madison, Wisconsin protesting the highly undemocratic and anti-worker legislation pushed by Scott Walker, the governor of Wisconsin. As an labor organizer, I was horrified that the current economic situation in the US was blamed on “greedy” public sector workers whose pensions were “too rich” and out of line with everyone else’s meager benefits. Hundreds of thousands of people participated in those protests and are still fighting to repeal that law. I feared that Wisconsin would be forgotten quickly and we would continue to allow the rich and powerful to scapegoat the working class and the poor. When I saw the invite from Adbusters, I could only hope that this fight against greed and inequality might spread beyond a single issue or locality.

The protests give voice to the anger and frustration many feel today. They focus that general dissent on the symbolic focal point of greed in America: Wall Street. As New York Times columnist Paul Krugman acknowledged in his editorial “Confronting the Malefactors” on Thursday: “The protesters’ indictment of Wall Street as a destructive force, economically and politically, is completely right.” Sure there are other places that deserve a good protest, but the bottom line is that Wall Street is symbolic of the excessive greed and total irresponsibility infecting our economic system. They were a significant hand in our current economic mess.

Saying that we should be protesting in Washington D.C. or in Midtown isn’t a valid criticism for two reasons. First, if we started these protests somewhere else, we would have been told why those places were inappropriate. Those who criticize our choice of location don’t really think we should be protesting at all. Second: we’re getting to it! Protests have sprung up all over the country and internationally. Friends of mine have participated in #OccupyLA (which was also endorsed by the LA City Council), #OccupyMN (bold people that sleep outside in Minnesota), and my cousin has even found sympathy protests in Korea, where she is teaching. Over 200 protests have sprung up and are growing more sophisticated. Occupy D.C. is picking up steam with marches on the US Chamber of Commerce and the IMF, a gathering at a church near Dupont Circle to mark the 10th anniversary of the U.S. war in Afghanistan, and a rally at Freedom Plaza with Ralph Nader as a speaker. And the Occupy protests are simply part of a larger movement. The organizers take their inspiration from Tahrir Sqare and the Arab Spring. The uprising in Madison this spring and the general strike in Greece last week indicate a growing opposition to global anti-worker austerity measures. Whatever it is that is happening is big and would be a mistake to ignore.

In response to the criticism that the protests have been incoherent in message and demands, I would argue that the protests have been wisely inclusive. There are protesters against the war, against the death penalty and the execution of Troy Davis, against money in politics, for taxing the richest amongst us, for workers’ rights, and other issues around on economic equality. I personally agree with many of the causes, but not always. The fact is, people are angry and frustrated with the way things are going. What I see is a wide variety of citizens finding common ground. And that common ground is the growing social and economic inequality in our society. They are bound together as “the 99%.”

What the protesters want is big, ambitious, and it brings people together. It is unlikely that we will change the way this country fundamentally works over the next weeks and months, but pressure is mounting for the-powers-that-be to make changes to appease the protesters and their sympathizers. Without protests in the streets and without growing numbers of Americans openly voicing their disapproval with our system, politicians will continue to choose corporate money over the greater good. So if you think there is something wrong in our society and that the gap has gotten too big in our economy, stop worrying if these kids should take a shower, or if their messages haven’t been vetted by focus groups and policy institutes, and get down to the protest and make your voice heard.

Ben Ward is a 1L member of the BLS National Lawyers Guild. He was most recently the organizer of the National Union of Healthcare Workers (NUHW).

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