Consumer Law & Policy Blog

Investigative Report Saying That Chief Justice Roberts Switched Vote on Health Care Ruling

I wonder who at the Court are the sources for this story. This CBS invesitgative report by Jan Crawford says that Chief Justice Roberts first decided to vote with Justices Scalia, Kennedy, Thomas, and Alito to strike down the so-called health care mandate, then switched to where he ended up (upholding the law as a tax), and then was lobbyied hard, particularly by Justice Kennedy, to come back to the "conservative" fold. Here are some excerpts:

Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold." He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."  * * * There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld. Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint. It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said. * * * Roberts focused the majority opinion on a much more difficult legal proposition: the tax power.But Roberts also would limit Congress' authority in future cases under the commerce power. Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting." Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments. During the arguments in March, Kennedy told Solicitor General Donald Verrilli:

Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases - and that changes the relationship of the federal government to the individual in a very fundamental way.

Roberts wrote in the section of his opinion analyzing the Commerce Clause:

Accepting the government's theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the federal government.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

The Effects of Outsourcing and Offshoring on the Domestic Economy and Jobs

Check out this long article by Steven Pearlstein on that topic.

Payday Lenders Want Out From CFPB Oversight

As Ed Mierzwinski explains, the payday lending industry is seeking passage of H.R. 1909, which would eliminate the Consumer Financial Protection Bureau's oversight, preempt state law, and place authority for regulating the industry in (what the industry sees as) the friendlier hands of the Office of the Comptroller of the Currency. Here's an excerpt from Ed's post:

At least one of the biggest triple-digit APR payday lenders is spending some of its massive profits on a bad legislative proposal, HR 1909, to eliminate any oversight by either state governments or the Consumer Financial Protection Bureau and move them into the arms of the industry-friendly federal bank regulator known as the OCC. Being regulated by the OCC has been a "get out of regulation free" card for the banks, so why not join them? Other high-cost financial services providers, including auto title pawn lenders, installment lenders, check cashers and many others could also use the "get out of regulation free" card the bill creates.

Whittington & Hoofnagle Paper: Unpacking Privacy's Price

 

Jan Whittington

 of the Department of Urban Design and Planning, University of Washington and

Chris Jay Hoofnagle

 of Berkeley Unpacking Privacy's Price, 90 North Carolina Law Review 1327 (2012).  Here's the abstract:

This article introduces a transaction cost economic framework for interpreting the roles consumers play in social networking services (“SNSs”). It explains why the exchange between consumers and SNSs is not simple and discrete, but rather a continuous transaction with atypical attributes. These exchanges are difficult for consumers to understand and come with costs that are significant and unanticipated. Under current structures of governance, there is no exit for consumers who wish to leave an SNS. In other contexts, similar transactions are bounded by tailored consumer protections. This article explains the need for tailored consumer protection in the SNS context. Specifically, we argue that a consumer right to rescind enrollment in an SNS, triggering a deletion of and ability to export information shared with the service, is appropriate given the skewed aspects of personal information transactions.