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)

The ObamaCare Decision: Student Voices

We asked your classmates for their opinions about the ObamaCare decision. Which Justice got it right? Check out their responses below, and add yours in the comments!

ADAM LUDEMANN, 2014

Adam is the President of the Federalist Society, but the views expressed here are his own. The Federalist Society is a student group whose purpose is to promote a respectful, thoughtful and engaging discourse on campus addressing issues of concern to libertarians, conservatives and the greater student body. They host series of discussions each year featuring topics such as healthcare reform, federalism and economic freedom. Adam encourages anyone interested in further discussion to check out their events on BLSConnect. The Federalist Society does not endorse particular policy positions. 

 I tend to agree with the Roberts opinion and Thomas, Scalia, et al…As a matter of cost reduction, I believe Congress could have better achieved its ends by reforming the tax code…and allowing the purchase of health care insurance… across state lines…

How does this decision affect you?

“As a paralegal at a large corporate firm before law school, I had great health insurance with broad coverage, low deductibles, and responsive customer service. As a law student over the age of 26, I currently have no real choice other than to participate in the BLS-sponsored insurance program, which features higher deductibles, low prescription drug coverage maximums, more restricted coverage, and terrible customer service. The benefit I receive per dollar of health care spending is clearly lower.”

What are your concerns about the practical implications this decision has on health law?

“I believe that many of these differences, and many of the problems with our healthcare system, ultimately arise from employer tax preferences which came about in the context of wage controls during the Second World War. These tax policies have distorted the healthcare market, linking health insurance to employers in a way which makes healthcare arbitrarily more expensive for the unemployed, students and those who are self-employed.”

As a matter of cost reduction, I believe Congress could have better achieved its ends by reforming the tax code to address these problems and allowing the purchase of health care insurance, like many other insurance products, across state lines, allowing for greater customer choice, more efficient distribution of healthcare services, and broader risk pools for those with preexisting conditions.”

So, which Justice got it right?

“I don’t pretend to be familiar with the law relating to the tax/penalty distinction, although I tend to agree with the Roberts opinion and Thomas, Scalia, et al. on the limitations the decision places on the Commerce Clause, the Necessary and Proper Clause and the Federal government’s conditional spending power vis-à-vis the States.

Parting thoughts?

“I wholeheartedly agree with the ACA’s goal of ensuring coverage for pre-existing conditions and coverage for those who are economically disadvantaged. However, I think that lowering costs as described above in connection with a tax refund or voucher-based system would lead to a cleaner, more progressive redistribution of health care resources without the market inefficiencies and cross-subsidies associated with a mandate and regulated approach.”

VERONICA JACKSON, 2014

Veronica is the Co-Chair of the Health Law and Policy Association (HLPA) and the Chair of Girls on the Run BLS pro-bono (GOTR). HLPA is a student-run organization that brings together students interested in a variety of Health Law fields to discuss today’s health care issues and to unite students and health law professionals with similar interests. GOTR is a new pro-bono program at BLS, bringing positive role models to an underserved elementary school in New York City. BLS coaches help to teach life skills through dynamic, conversation-based lessons and running games.

Overall I’m extremely pleased with the outcome of this case…My biggest hesitation with the law is how comprehensive the lowest ranked plans offered in Exchanges will be, and if they will actually lead to an increase in primary care services.

How does this decision affect you?

“I currently have health insurance, but will be losing it when I turn 26 in March and will likely enroll in the BLS offered plan.

Personally, this decision does not have that much of an impact on me. My parent’s health insurance has allowed young adults (up to age 26) to stay on their plan for years, so a negative outcome would not have had an effect on me as of yet. I also cannot foresee myself ever choosing not to have health insurance so the mandate would not really be mandating me to do anything I did not want to do anyways. I am concerned that the plans that I may be able to afford after law school will not be comprehensive enough, but the New York Exchange has yet to release all of its guidelines.”

Which Justice got it right?

“I agree most with Justice Ginsburg’s opinion in that the ACA would have been constitutional under the Commerce Clause. I agree with the Administration’s position that health care is a very unique market in that virtually everyone will enter it at some point in their lifetime. Because of this, I feel that Congress did have the power to enact this law under the Commerce Clause. One of my favorite quotes in her opinion sums it up nicely: ‘Why should the Chief Justice strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.’”

Parting thoughts?

“Overall I’m extremely pleased with the outcome of this case. I’m a proponent of a single-payer system or a two-tiered system (such as in Germany), but in the interest of being realistic, I know that neither system is in our immediate future. So for now, I support the ACA. Decreasing emergency room use and increasing preventative care are crucial to decreasing our nation’s healthcare costs, and these two goals are made possible in the ACA by giving more Americans access to health insurance.

My biggest hesitation with the law is how comprehensive the lowest ranked plans offered in Exchanges will be, and if they will actually lead to an increase in primary care services. In order to avoid the penalty, many Americans may enroll in plans that still make health care too costly to obtain. This would cause those enrollees to waste money on their premiums each month while still not to receiving health care. The standards will be set by various exchanges, but if Massachusetts is any indication, a new class of “under-insured” may emerge. I am also concerned with how the insurance market could play out 10-15 years from now. There is often very little oversight for these private health plans, and they could become very powerful in years to come. As an intern at the Medicare Rights Center, I have been able to see first-hand how the policy set by regulation committees can often have little to no effect in the implementation and regulating of a plans day-to-day operations and services. Suggestions to committees are for one reason or another often ignored or glossed over when passed onto plans, giving plans too much power and not enough supervision. Hopefully stronger guidance would be built into this system.”

*Editor’s note: We hope you join the discussion but please keep your comments respectful.

The Affordable Care Act Cases: An Analysis

For any incoming law student, the decision in National Federation of Independent Business, et al., v. Sebelius (The Affordable Care Act Cases) is an excellent primer for law school and a good option for summer reading. If you can read and understand all 180+ pages of this decision, then you will have a leg up when it comes time to take Constitutional Law. I would be surprised if Con Law professors do not include this decision in their syllabus, for it explicates the Roberts Court’s position on the Commerce Clause, its application, and its boundaries.

Although many students will not read the entire opinion because of its length, they may want to know what practical effects it has on them. There are two: (1) Students under 26 may remain on their parent’s health insurance plan (as they have been able to do since 2010); and (2) come January 1, 2014, they will be required to have health insurance or else pay a penalty on their next tax filing.

Some students may qualify for Medicaid, which may be the better option if you are over 26 and make less than $11,000 per year.

Brooklyn Law School offers students health insurance by Aetna through Gallagher-Koster. It costs about $1550 for the 2011-2012 academic year. At press time, rates for the 2012-2013 year had not been posted. While New York and New Mexico are very different states, the rate increases approved by the New Mexico Board of Regents for that state’s university system might provide guidance on possible cost increases in New York next year.

New Mexico has the second-highest number of uninsured people in the country at 21.7% (Texas is first with 26.7%) while New York is two percentage points below the national average at 14.8%. Until this year, the price of student health plans in both states was similar. Rates were previously $1,400 for the University of New Mexico until the Board of Regents voted on June 7, 2012, to increase the cost by 22%, or about $308. They said this increase was needed to put the school’s plan in compliance with the ACA, if passed. If the BLS Student Policy is raised by 22%, it will go up about $341, making it around $1,900 per year.

Some students may qualify for Medicaid, which may be the better option if you are over 26 and make less than $11,000 per year. Notably, the AccessNY health plan does not classify scholarships, grants, or work study as “income.” A student interested in either plan should note the differences between the two (for example, BLS does not cover dental care; Medicaid does).

The Effect on State Finances

On July 9, 2012, Texas Governor Rick Perry declared that the state would not “opt-in” to the Medicaid Expansion contemplated by the Affordable Care Act. As noted above, Texas has the highest percentage of uninsured individuals in the nation. So, what does this mean for the state of Texas and its residents?

The CBO projects that states will spend only 0.8% more than they would have, absent the ACA.

In his dissenting opinion, Justice Scalia uses Arizona to illustrate the increased burden states will face if they do not comply with the Medicaid Expansion, which requires states to offer Medicaid to all individuals under the age of 65 with an income at or below 133% of the federal poverty line. Justice Scalia notes that Arizona typically commits 12% of its state expenditures to Medicaid, and relies on the Federal Government to provide the rest, which amounts to $5.6 billion, or close to one-third of Arizona’s annual state expenditures. He then argues that if Arizona refuses to comply, it will lose all federal Medicaid funding, and will have to increase its state Medicaid funding by 33%. This means, essentially, that Arizona will put a whopping 45% of its state expenditures towards Medicaid.

Justice Ginsburg, on the other hand, notes in her concurring opinion the Congressional Budget Office’s estimate of state spending. The CBO projects that states will spend only 0.8% more than they would have, absent the ACA. Accordingly, Justice Ginsburg contends that the federal government will cover 100% of the cost for newly eligible beneficiaries beginning in 2014, decreasing to 90% of the cost by 2020.

Texas spent nearly $22.8 billion on Medicaid in 2009, or approximately 25.4% of its state budget. The state received roughly $25.9 billion in federal funding for the program in 2010-2011. Because of Texas’s refusal to opt in, it will need to spend $48.7 billion per year, instead of the cost of expanding its coverage to residents at-or-below 133% of the federal poverty line. This annual income threshold is approximately $15,000.

It’s difficult to project the actual cost of the Medicaid Expansion to states. Justice Ginsburg’s 0.8% figure underscores the similarity of this situation to Dole (another case that features prominently in the first year Constitutional Law curriculum), which is discussed thoroughly in all three ACA opinions. But this is not a Dole situation. The penalty for non-compliance is, in the Chief Justice’s words, “a gun to the head.”

Justice Ginsburg’s figure does not take into account administrative expenses, nor does it specify whether that 0.8% figure applies for 2013, or the seven year period between 2013 and 2020. It appears to be the latter because she stresses that the federal government will cover 100% of new Medicaid enrollees next year.

Individual Mandate Penalties

The Individual Mandate was upheld; the most controversial aspect of it is a potential broadening of the taxing power. Consider this hypothetical:

The year is 2016. Unfortunately, you do not have a job. You are a solo practitioner who takes the cases you can get and you live from paycheck to paycheck and you can barely make the rent for that $800/month three-bedroom apartment you share in Williamsburg. You’re single. You reject whatever health insurance the American or New York City or New York State or Brooklyn Bar Associations offer because you just can’t afford it. Perhaps you should be on Medicaid, but you actually make about $35,000 a year, so you don’t qualify. You’re paying off loans without the Loan Repayment Assistance Program. You like to go out on the weekends and you try to keep your body in excellent physical shape. You almost never get sick, and when you do, you never need to go to the hospital.

One may actually “save money” by paying the tax, but…other federal (and possibly state) taxes are likely to increase.

April comes around and you start thinking about how you’re going to declare your income. You’re an honest person, so you keep accurate records of your income. If you choose to “say no,” your penalty will be “determined by such familiar factors as taxable income, number of dependents, and joint filing status.” (Majority at 33)

“In 2016, for example, the penalty will be 2.5% of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60% of the cost of 10 specified services (e.g., prescription drugs and hospitalization) § 5000A(c); 42 U.S.C. § 18022.” (Majority at 7)

• 2.5% of $35,000 is $875 per year.
• 2.5% of $45,000 is $1,125 per year.
• 2.5% of $55,000 is $1,375 per year.

Thus, one may actually “save money” by paying the tax, but as the dissent points out, other federal (and possibly state) taxes are likely to increase. It’s impossible to predict what the market will be like in 2016, or how the “exchanges” will truly operate. But if your income reaches the maximum level, and you’re beyond the 400% poverty level for “exchanges” ($44,680?), this provision may fix the price of minimum coverage in the market.

Conclusion

The Majority held that the Federal government does not have the power to order people to buy health insurance, but does have the power to tax those without insurance. Therefore, law students will have a few more sentences to write in their Constitutional Law exams. A brief outline may look like this:

• Lopez (1995): Gun-Free School Zones Act Unconstitutional under Commerce Clause (keeping guns away from schools does not have an effect on interstate commerce).
• Morrison (2000): Violence Against Women Act Unconstitutional under Commerce Clause (preventing the rape and abuse of women does not have an effect on interstate commerce).
• Raich (2005): Controlled Substances Act Constitutional under Commerce Clause (private growth of marijuana does have an effect on interstate commerce).
• The Affordable Care Act Cases (2012): Individual Mandate is Unconstitutional under Commerce Clause (failure to purchase health insurance does not have an effect on interstate commerce).

Similarly, a few more sentences will be needed to address the Medicaid Expansion in a separate line of cases:

• Dole (1987): Enforcing minimum drinking age Constitutional under the Spending Power (withholding a small amount of federal highway funds for failure to comply is not coercive).
• New York (1992): Low-Level Radioactive Waste Policy Act Constitutional under Spending Power (imposing a penalty on states that ship their waste to other states is not coercive).
• Printz (1997): Brady Handgun Violence Prevention Act Unconstitutional under State Sovereignty principles (Congress cannot command Chief Law Enforcement Officers to conduct background checks on all gun purchasers).
• The Affordable Care Acts Cases (2012): Medicaid Expansion is Unconstitutional under Spending Power (threatening to cut-off all federal Medicaid funding from a state if they do not comply is coercive).

This decision is unlikely to effect future Congressional action – none of these previous Court opinions have been overruled. Additionally, it is difficult to predict this decision’s effect on the upcoming presidential election. Since Governor Romney pioneered this kind of plan in Massachusetts (Justice Ginsburg takes pains to point out the success of that program, and the flocks of the uninsured making special trips to Massachusetts) it is hard for him to claim that he will immediately repeal the ACA without sounding like a hypocrite. President Obama could easily shoot him down in a debate by quoting from Ginsburg’s opinion: “In coupling the minimum coverage provision with guaranteed-issue and community-rating prescriptions, Congress followed Massachusetts’ lead.” (Concurring at 12)

*Editor’s Note: Jack read the entire 180-page decision during his summer vacation, so be sure to read through his roadmap! When you’re done, see what your fellow students think!

*Editor’s Note #2: BLS has posted 2012-2013 insurance rates, and Jack’s predictions were spot on. Annual coverage for students 30 and under will be $1,811; for those over 30 it will be $2,022. Spring 2013 coverage only will be $1,092 and $1,217 respectively.

Op-Ed: The Problem with “The Problem with Stop and Frisk”

Here’s the article I was going to write in a nutshell:

• Opening Question: Would you invest $1,000 in a company if you knew that in 5 years, you would get back $1001.01?

• Population of NYC: 8.2 million people
  • Black residents: 2 million (25.5%)
  • Hispanic or Latino residents: 2.3 million (28.6%)

• Number of random stops and frisks by the NYPD: 684,000 (8.3% of the population)
  • 369,360 (54%) were Black
  • 232,560 (34%) were Hispanic or Latino
  • 61,560 (9%) were white

• Number of guns found by police: 819

• Arguments

• Mayor Michael Bloomberg, owner of a billion dollar business that deals in statistical information, must realize that 684,000 stops in order to remove 819 guns from the street is grossly inefficient. I surmise that he would reject a business opportunity with a 0.11974% rate of return if that opportunity were offered to him in his capacity as owner of Bloomberg, LP.
• The Mayor and Police Chief can argue that this tactic removes hundreds of guns from the streets. It’s true. But there’s two things wrong with this argument: (1) It ignores the ratio of stops to guns (above) and (2) those 819 people were just unlucky. People adjust. Guns are kept at home, in cars, in a stash box, in bibles, etc. and what often happens is that a person who finds himself “wronged” will go upstairs or to the car and retrieve the gun. There is absolutely nothing that stopping and frisking citizens can do to prevent this.
• The NYPD is stopping and frisking nearly 10% of the entire city’s population. How is that not a problem?
• There may be evidence to back up a claim that the Black/Hispanic/Latino population commits crime out of proportion to the actual population. However, I simply refuse to believe that 54% of the population is committing 88% of the crime in the city. (Hubris, perhaps?) Furthermore, there is an argument to be made for police being more lenient on some would-be “criminals” than others that also helps to explain the discrepancy.

• Conclusion
  • End stop and frisk. I may want police protection. I may even request it. But I don’t want to be harassed in the process. I don’t want my neighbors to feel they can’t trust the police because department policy makes the individual officers look bad. I want my tax dollars going to strategies with higher rates of return (with the phrase “higher rates of return” being a clear reference to the beginning of the article and to the Mayor’s career as a business owner).

Two weeks ago, I could’ve written that article and walked away completely satisfied with it. However, an issue has come to my attention that trumps any point I might have made before – the Mayor of New York City has no authorization to stop and frisk citizens in the first place! As such, the last 477 words that I’ve written, while important, distract from this primary point.

You may be wondering how I came to this conclusion. I submit the following for your approval:

In 1968, the Supreme Court decided Terry v. Ohio, 392 U.S. 1, which authorizes a police officer to “conduct a carefully limited search of the outer clothing” of a person for the protection of himself and others. This authorization occurs after the officer “observes unusual conduct” and based on his experience, this unusual conduct leads him to believe that “crime is afoot and that the person he is dealing with is armed and dangerous.” An officer in this situation must identify himself as a police officer, make reasonable inquiries, and can only search the suspect if “nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety.”

Following Terry, New York decided People v. DeBour, 40 N.Y.2d 210 (1973). DeBour established four levels of police encounters in New York State:

• Right to Approach and Request Information: A police officer may approach a private citizen on the street for the purpose of requesting information. The person does not have to be engaged in criminal activity, but there must be some “articulable reason” sufficient to justify the police action. The officer may ask for ID and ask for explanation as to whereabouts, but a person has a right not to answer, and to walk away.

• Common Law Right to Inquire: A police officer may “interfere with a citizen to the extent necessary to gain explanatory information” if he has a “founded suspicion” that criminal activity is afoot. The police officer in this situation may not seize the citizen.

• Right to Stop and Detain (a Terry stop): A police officer may stop and detain a person if he has a “reasonable suspicion” that the person has committed, or is about to commit a felony or misdemeanor. The officer may frisk the person if he reasonably suspects the person is armed and dangerous.

• Right to Arrest: A police officer may arrest and take someone into custody when the officer has probable cause to believe that person has committed a crime, or has committed the offense in his presence.

With these rules in mind, I would like to explain to you how an ordinary stop and frisk works, from the perspective of one who has been stopped and frisked four or five times in his life (namely me, before law school): You’re standing in front of your building or walking to the store. The police roll up and get out of their car. They ask who you are. If they’re in plain clothes, you ask who they are. When they respond, “we’re the police,” you ask for their ID. You take note of their shield number, though some officers will try to distract your eyes with their finger. They then ask to see your ID. You state you’re not carrying any. They ask “why not?” You answer, “Nothing requires me to carry ID,” or, “No one carries ID to come outside and sit in front of their own building,” depending on the situation. In the worst case scenario, you get nervous and try to figure out some reason to explain why you don’t have what the police officer’s tone of voice has made seem like a requirement. You could walk away here, but you don’t because you have no idea that you can walk away. Or because you’re a law student who hasn’t read DeBour yet. Or even if you have, they have guns and you’re familiar with what happened to Sean Bell and Amadou Diallo.

Next, the police ask if you have any weapons on your person. You smirk to yourself, thinking, “Who would answer ‘yes?’” On the first occasion, you answer “no.” On the second occasion, you ask why they want to know. On the third occasion, you make a Second Amendment argument, but the officer seems to know the Amendment better than you. None of these arguments work and you later attend law school with an eye on a 4-credit Criminal Procedure class.

Interestingly, police reports and court transcripts do not convey the tone of these conversations with police. Officers use an authoritative and accusatory tone of voice to convey these questions, despite having no authority in these situations. Using an authoritative tone helps the police to maintain order because many, not knowing the extent of the officer’s authority, will simply defer. Using an accusatory tone helps the police because many people attempt to explain their way out of situations. These people ordinarily end up talking themselves into situations instead. But people from neighborhoods like mine are taught to fight back, especially when faced with false accusations. So when faced with an officer whose words seem non-confrontational on paper but who has actually escalated the situation via his tone of voice, such a person is unlikely to take note of what was actually asked. Instead, we will counter the officer’s aggression with our own as a defense. This, of course, works against us. The officer, in turn, will claim that he feels “nervous” in response.

At this point, the officer will ask, “Can I search you?” Remember, you haven’t been to law school. Your friends aren’t graduate students. You don’t say, “No, I do not consent to a search” because no one talks like that. Furthermore, you don’t know that saying “no” is an option – bad things happen to people who say “no” to the police. However, your natural reaction is to fight back when someone does you wrong – and a police officer asking to search you when you were minding your own business is on this list. So, you say “no.” The officer threatens you with an obstruction of justice charge. You’re not a public defender, so you don’t know that obstruction of justice charges are almost always thrown out. Even if you did, you consider your options: (1) waste a day or two in jail waiting to be arraigned or (2) let this guy search you and go about your business? Therefore the officer, without your consent “Feel[s] with sensitive fingers every portion of the [person's] body. A through search [is] made of the [person’s] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” (Terry, footnote 13)

After the encounter is finished, you curse the police officers and continue down the block to get your 50-cent soda.

Let’s review what just happened: the officer stopped you under Level 1 of DeBour. He escalated the encounter to Level 2 with what he assumes is your consent when it is really a lack of knowledge, and frisks you under Level 3 despite having no reason to suspect that “crime is afoot.” Just walking through a high crime area does not give an officer a reason to believe that an individual is a criminal, and surely the officer has conducted some of the 683,181 fruitless stops last year. He has no reason to believe that any person he stops in this manner is armed and dangerous. Terry and Criminal Procedure professors will note that the stop is a seizure, and the frisk is a search. Combined with the 0.11974% chance that the officer will find a gun, the entire encounter violates a person’s 4^th Amendment rights to be secure against unreasonable searches and seizures.

Furthermore, this violation occurs at the hands of the police, who are agents of the Mayor, which is the executive branch of government in New York City. The Mayor can only exercise those powers given to him by the Legislatures (Congress, the State Assembly, and the City Council) that have not been modified or overturned by the judiciary (see Marbury v. Madison for a refresher on judicial review). A New York State bill from 2010 would have authorized the Mayor and his agents to take this action, but it has not become law. Therefore the 4^th Amendment, Terry, Debour and their progeny are still the law in New York.

New York courts seem to be catching on to this idea. Not only has a class action lawsuit against the NYPD been authorized, but also on June 26, 2012, the New York Supreme Court, Appellate Division, used similar reasoning in In re Darryl C., 947 N.Y.S.2d 483, to strike down the legality of a stop and frisk, stating that

The [lower] court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures. The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built.

The bottom line is that when an NYPD officer, an agent of the Executive branch of the New York City government stops and frisks a person in this manner, he violates the U.S. Constitution, the New York State Constitution, Terry, and DeBour. By subjecting 8% of the total population of the city to these stops, and by stopping a disproportionately large number of minorities, the NYPD, and by extension, the Mayor’s office has created a race-based class, which violates the 14^th Amendment. The practice may have taken hundreds of guns off the streets, but in comparison to the number of people searched, the number of guns recovered is minuscule. As a result, the same people that the NYPD is sworn to protect feels that they are being harassed by the NYPD. Therefore, the practice must be abolished.

You may ask, “What about the Mayor’s position, that these strategies help make the city safer?” Admittedly, there may be some merit to this position. I live in the 103^rd Precinct, and though I often relay stories about running from bullets in my youth, gunshots are few and far between these days. Additionally, there have been 17 fewer murders (60%), 37 fewer rapes (50%), and 1306 fewer robberies (75%) in my neighborhood than there were at the same time in 1993. However, as stated in the book Freakonomics, crime rates were declining before “innovative policing strategies” were implemented. Furthermore, there are a multitude of strategies that could be used to help keep the city safe that are not being considered because of the focus on stop and frisk. Finally, even if stops conducted in this manner were authorized under Terry, the person’s right to be secure in his person trumps the government’s right to interfere with the person’s freedom of movement.

The Supreme Court, in Terry, had an opportunity to stop this practice in 1968 by excluding evidence obtained from stop and frisks at trial, but instead stated that “the wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial.” Perhaps Justice Libby was correct, but the majority opinion should have forced the police to experiment with different tactics in order to protect the community. Instead, we find ourselves complaining about the same harassment 44 years later.

Dwayne Allen Thomas is the incoming Editor-in-Chief of The BLS Advocate.

Inter Alia: June Legal News Recap

This month’s news is brought to you by the letter J. J is for June, John Roberts, and jobs. Three cheers for the letter J!

Brooklyn Law School

● BLS ranks 7th in unemployment. That is, if you trust math and statistics (I’m skeptical). [WSJ].
● Wedding Bells! [NYTimes].
● Moody’s assigns BLS’ bonds Baa1 rating. [Reuters].  (This might be a story in the future.)
● Worried about jobs? Grow a mohawk. Tats a plus. [NYTimes].

National

● FCC not happy about the Supreme Court’s decision about “indecency” fines for wardrobe malfunctions and provocative images. [LA Times].
● Free speech vs. abortion rights reaches Maryland court. [BusinessWeek].
● Wired.com recaps decisions from the Court’s 2011-2012 term. [Wired].
● Following Arizona ruling, local enforcement dubious about implementation of SB 1070. [NPR].

New York

● City firefighter discrimination case continues in 2nd Circuit Court of Appeals. [Reuters]
● $40 million hate crime suit dismissed for improper service. [WashingtonPost]
● Peter Madoff pleads guilty to fraud charges. [NYTimes].

___

Boyan Toshkoff,’14, also contributed to this list

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]

Inter Alia: April Legal News Recap

• Community Group Brings City to Court Over Leaky Light Fixtures in Schools. NY1
• Appeal Filed in NYLS Suit Dismissal. Law360
• Chief Judge Lippman Announces New 50-hour Pro Bono Requirement for Bar Admission in NY, Starting in 2013. NYLJ

Poll: How will the Supreme Court rule in the Affordable Care Act case (HHS v. Florida)?

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Inter Alia: This Week in Legal News

In this new feature, 1L Erin Erturk summarizes major legal developments from the past week.

New York

• 2nd Circuit overruled removal of Bank of New York Mellon v. Walnut Place, LLC to federal court, applying the Class Action Fairness Act of 2005. {NY Law Journal}

• 2nd Circuit heard oral arguments in Lynne Stewart’s appeal of her lengthened jail sentence—a result of her “standing on my head” comment– invoking her right to free speech. {NY Times} {WSJ}

• Brooklyn federal judge steps in for state legislature over congressional redistricting. {WSJ}

• Brodie, first Afro-Caribbean born judge to sit in U.S. district court, confirmed to EDNY. {Reuters}

Nation

• Supreme Court granted cert to hear game-changing affirmative action case in Fisher v. University of Texas. {DB}

• Judge Martin’s “Zombie Mohammed” decision on violation of an atheist’s First Amendment rights questioned. {CNN}

• D.C. Circuit Court of Appeals decides graphic warning labels on tobacco products violate free-speech rights. {Reuters}

Patient Protection and Affordable Care Act

• The Senate defeated the Blunt amendment, which would allow employers to opt of provisions in the health care law providing free birth control. [Politico] President Obama calls Georgetown student, Fluke, speaking out on reproductive rights, called “slut” by Limbaugh. {Politico} {Reuters} {Fluke’s testimony} [pdf]

• 63% of voters favor the free birth control policy. {Reuters}

• 72% say Individual Mandate is unconstitutional. {Gallup Poll}

Immigration

• District Judge blocks Arizona Immigration Law [pdf] “Day Labor” rule; prohibits police from enforcement, stating law violates constitutional rights rather than achieves purported purpose of increasing traffic safety. {MSNBC}

• Arizona v. United States, Arizona’s challenge to 9th Circuit ruling in U.S. v. Arizona that S.B. 1070 is unconstitutional [pdf], will be before the Supreme Court in April. {SC.gov} [pdf]

• 11th Circuit Court of Appeals set to hear Alabama and Georgia immigration enforcement laws. {Atlanta Journal-Constitution}

International

• Armenian Genocide law struck down by French Constitutional Council. {BBC}

• Supreme Court addresses whether or not corporations are liable for human rights violations in Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority, drawing comparisons to the Citizens United ‘personhood’ debate. {NY Times} {Guardian} {HuffPo}

• Google Privacy Plan in violation of European laws? {NY Times}

• UN not convinced by Syrian referendum approving a new constitution. {NP}