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OMISSIONS AS COMMERCE; CONLAW AND HEALTHCARE
INTERVIEW: USC LAW PROFESSOR MICHAEL SHAPIRO
DONS RIGOROUS ANALYSIS OF CONGRESS’S POWERS
Professor Michael H. Shapiro is a
Professor of Law at the University of
Southern California Gould School of
Law. Professor Shapiro earned his
B.A. and M.A. from the University
of California, Los Angeles and
earned his J.D. from the University of
Chicago Law School, where he was
an associate editor of the University
of Chicago Law Review. At Gould,
Shapiro specializes in bioethics and
in constitutional law, and in particu-
lar, medical and legal ethical issues
surrounding reproductive, genetic,
and behavior control; death and
dying; organ transplantation; and
research and experimentation.
What critique can be made of the
court’s opinion in VA v. Sebelius?
The court was seized by the con-
cept of “passive inactivity”—the idea
that if a person chooses not to do a
certain thing in commerce (e.g., not
purchase health insurance), then
that person remains outside com-
merce, be it of an inter- or intrastate
nature. The court therefore believed
that aggregating the choices of
individuals to abstain from this form
of commerce simply adds up a
bunch of zeros, equaling zero eco-
nomic activity. This blunts the idea
of a bunch of small effects adding up
to a big one. Penalizing a person for
choosing not to purchase health
insurance, as the MEC provisions
require, regulates inactivity, and, as
the argument concludes, Congress
cannot regulate this choice unless it
has a substantial impact on inter-
state commerce.
Well, how did the court get it
wrong?
Not purchasing health insurance
is not like standing around watching
the grass grow. Whatever one is
doing, there are an infinite number of
things one is not doing, but some of
them may need to be done to main-
tain an otherwise valid surrounding
system. The Act’s insurance system
is a field or network within which we
all reside, and everything we “do” or
“don’t do” affects everyone else—
like magnets within a magnetic field.
(OK, the analogy is overdone, but it
gets the idea across.) Regulating
health insurance is not the same
thing as requiring everyone to brush
their teeth after every meal—that’s a
hamfisted argument. Not brushing
your teeth doesn’t go to destroying
As businesses slow down, so
does the touring calendar. While
some musicians celebrate Christmas
– others are just saving their energy
for New Year’s Eve. If you’re staying
in LA through the end of the year –
unfortunately your options are limited,
but they are still pretty good.
On Christmas, sonic Santa Claus
gifts us dubstepper Datsik and hard
to define Busdriver at The Music
Box and Infected Mush-
room at Avalon. My guess is you’ll
probably see a lot of Jewish people
that like to party hard.
Tuesday the 28th, Project Blowed
hosts their party with
guests Freestyle Fellowship, A-
Team, Nocando, 2Mex, Dibia$e and
more. It’s a local hip-hop heads end
of the year must do and definitely the
best eastside option for mu-
sic. SMOG hosts its final Dubtroit
installment for 2010 at Detroit Bar –
RSVP@smogla.com if you’ll be in
Orange County.
The night before NYE, The Roxy
hosts a rock fiasco with The Duke
spirit and Crash Kings. Long Beach
grizzly rockers The Growl-
some economic program, whatever
the effect on dental visits and fees.
The inability to draw a precise line
between the permissible and the
you’ve-gone-too-far doesn’t blow out
the clear cases. Serious issues of
law and value necessarily involve
this sort of imprecision.
If one chooses not to purchase
health insurance, he or she simulta-
neously—“actively”—elects to be a
free rider in at least two ways: re-
questing future emergency services,
which are more expensive than
insured expenses, which the taxpay-
ers pay for; and opting into the insur-
ance system later, without being
blocked by exclusions for preexisting
conditions, again when treatment is
more expensive. This is deferred
action, not inaction. Characterizing
the omission to obtain health insur-
ance as mere inaction or noneco-
nomic activity consciously disre-
gards what we all know to be true
about health care as an institution in
this country and the manner in which
people interact with that institution.
How does doing nothing – not
purchasing health insurance,
kicking back at home on the
couch – fall within the sphere of
actions which congress may con-
stitutionally regulate? Isn’t there
some requirement that the subject
of regulation be an activity in
interstate commerce?
As I said, the key idea is that if
there is an overall valid program
surrounding your “inactivity,” it is
utterly different from simply standing
in the rain soaking up nature—which
is its own form of action. Everyone
is simultaneously doing and not-
doing different things. But one is
active or inactive with respect to
something. If you’re active with
respect to standing in the rain,
you’re inactive with respect to sitting
inside by the fireplace. If you’re
“inactive” with respect to buying
insurance, then—within the sur-
rounding program—you are active
with respect to self-insuring or visit-
ing the ER or opting in at a later
date.
The Commerce Clause does not
say anything about activity, where
activity is defined as buying and
selling rather than choosing not to
buy or sell. The Commerce Clause
grants Congress the authority to
regulate “commerce” among the
states. Commerce comprehends
conduct, and that includes both
deciding to do one thing and decid-
ing not to do something else within a
network of organized activity. You
don’t have to be “in motion” to be in
commerce. In this sense, requiring
“activity” under the commerce clause
would be judicial “activism.” Take
that, inactivists!
In any case, the significance of
the not-doing depends on the con-
text. The impact of many people
choosing to remain uninsured and
getting their medical care in ERs is
so not the same as many people not
eating broccoli, which lots of people
don’t. The oft-made argument that
the individual mandate penalizes
someone simply for existing—for
www.SUPERGOODMUSIC.com Box.HARDAnother
LA
By Brandon Dorsky, Esq.  Entertainment Columnist
ers with Grand Elegance are the
cheaper, eastsider indie preferred
option. Those seeking nostalgia
might want to see Flock of Sea-
gulls at Brixton South Bay.
NEW YEAR’S EVE OPTIONS
On the final day of the year, the musi-
cians come out to party again. If you
want to go see music, just check out
our list that includes a few pointers
and what you might expect to en-
counter at each show.
Rusko, 12th Planet, Diplo, Major
Lazer, Wolfgang Gartner and more
at Together As One. This event is
for the fans of dubstep, wild parties
and those that enjoyed EDC. Expect
lasers, people dressed in lingerie and
no one over the age of 35.
Pharcyde at Key Club. Heard it
may have all members and a full
band. This is for fans of old school
hip-hop, those looking for a quality -
but not too rowdy live music experi-
ence. Expect anyone who's driven
West on Sunset Blvd. while listening
being there—is thus quite inappro-
priate. The regulated field encom-
passing the conduct is critical. If
there were no overarching insurance
system under the Act, the govern-
ment couldn’t just step in and tell
one person or another to buy insur-
ance. So, one can see that inactivity
is pretty active. Standing there
doing nothing is fine when you’re
alone. Standing there doing nothing
when someone needs to be warned
about an oncoming train is some-
thing else. Of course, the point here
is that “inactivity” has to be assessed
in context—not that refusing to buy
insurance is just like letting someone
get run over by a train.
The idea of deferred action is
instructive here. The supposed
inactivity of not buying insurance
now is tantamount, in the real world,
to the later activities of going to the
ER or opting into insurance without
exclusions. This is doing. It isn’t not
-doing or merely “existing.” You are
“The negative ex-
ternalities here are
the resources
you’ll consume for
which you do not
pay the cost—but
the taxpayers do.
That’s free riding.”
pursuing a course of conduct creat-
ing negative externalities.
The negative externalities here
are the resources you’ll consume for
which you do not pay the cost—but
the taxpayers do. That’s free riding.
The drumbeat about “inactivity” is
just playing with words. There are
different kinds of inactivity, within
different networks, having different
impacts. Whether as a matter of
policy the Act embeds a good sys-
tem, all things considered, however,
does not directly affect the constitu-
tional analysis, at least in this case.
By the way, much of this also ap-
plies to the employer mandate,
which we’re not discussing here.
This is mentioned less often, per-
haps because people are less con-
cerned with regulating businesses
than individuals.
How about the people who self
insure and actually pay for their
own medical treatment, or those
who refuse medical treatment on
religious grounds? Haven’t we
now lumped their inactivity into
the sphere of things that may be
regulated by Congress despite
the fact that their inactivity does
not cause them to overtly enter
interstate commerce?
If by some chance an uninsured
person never gets sick, or pays for
all health care herself, or eschews
all medical care no matter what—
and some might do this—it hardly
defeats the overall program. There
is no right to a perfect degree of
individuation in this situation, and
individuation is impossible anyway:
we can’t predict the future that way.
to "Passing Me By" in the last few
weeks.
Rebelution at House of Blues
Anaheim. Only reggae tinged New
Years Eve event I'm aware of in town
- and whether it is the only one or
not, it is the best. The young quartet
is killing it and this will be their last LA
performance before they embark on
their Winter Greens Tour in late
2011. Expect UCSB graduates and
under-graduates home for the holi-
days, Silverback Management crew
(shout outs - they're cool), hipsters
into dub-soul, rastafarians and lot of
people who want to talk to Sampson
("fly me to the moon...").
NOFX at The Wiltern. The LA
formed American punk rock band will
be playing music from their extensive
catalogue, including, hopefully, some
material from the recent "Cokie The
Clown" release. Expect die hard
punk fans, people in their 40s trying
to relive college experiences, fans of
opener Dead To Me.
A MULTIWAVE PUBLICATION
Issue No. 1—16  Thursday, December 23, 2010
Unless it’s dealing with specially
protected constitutional rights and
interests, Congress usually seeks to
enact legislation based on what is
generally the case, and doesn’t have
to calibrate matter to exclude every
imperfection. Absolute precision is
not required in such regulation, and
if a few people are scooped in who
are self-paying or otherwise not a
drain, it doesn’t defeat the program.
This is long-standing and fairly un-
controversial commerce clause
doctrine and in most areas of legisla-
tion, absent a serious impingement The United States Constitution, or supreme law of the land, was adopted on
on a right or interest that triggers September 17, 1787 at the Constitutional Convention in Philadelphia, Penn-
heightened scrutiny. sylvania and thereafter ratified by each state. Jacob Shallus, then Assistant
I’ve heard some say, “Universal Clerk to the Pennsylvania General Assembly, scribed the original document.
health coverage is the morally A 1937 investigation revealed that the founders paid a total of thirty dollars to
right thing to do because every- “clerks employed to transcribe & engross” the Constitution. According to the
body in this, the wealthiest coun- National Constitution Center, the U.S. Constitution is the world’s oldest written
try in the world, should have ac- constitution still in use by any nation in the world. The National Archives and
cess to medical care when re- Records Administration in Washington, D.C. houses the original document,
quired.” Is there a place for the comprised of seven articles and the first ten amendments, which such ten
contemplation of morality during amendments are also known as the Bill of Rights.
a constitutional analysis?
You want a review of the last few sion. But proponents can argue that Motel v. U.S., the Court upheld the
centuries of jurisprudence and legal
theory? There is no formal role for
it’s immoral to be a free rider and
impose avoidable costs on everyone
Civil Rights law’s requirement that if
the hotel is indeed in business and
pure moral analysis in constitutional else. Neither point should be made serves anyone, it cannot exclude
law. (The theoretical possibility of
exceptions has to be for another
solely in moral terms except in the
legislature or in public discourse.
persons on the basis of race.
Of course, the motel was actively
time.) When they interpret constitu- The question is whether such opt- in business, and this was a lot more
tional provisions, the courts do have out decisions are part of what we economically active than simply
to investigate traditional views on traditionally understand as highly being a member of a group most of
what is right and wrong. For exam- protected liberty and whether avoid- whom will eventually need services
ple, there is nothing in the constitu- ing the impairment of a valid public within the healthcare market, so I
tion about proof beyond a reasona- program is a rational governmental wouldn’t press the comparison, but
ble doubt in criminal cases, but in goal. Even if there is no precise it’s still a case of forcing a transac-
American tradition we think this is a precedent for such a requirement, it tion within a field of activity to pro-
moral necessity embedded in the is clearly within existing doctrine: it mote the public good.
ideas of both justice and utility, and just never came up before because It’s worth an extra comment on
so this moral sentiment is held to be we never had a nationwide insur- free riding and moral analysis. It’s
embedded within the due process ance system, so there’s nothing widely understood, if not always
clauses, without being there in haec remarkable about the absence of a followed, that everyone has a duty
verba. Pretty active, huh? There is case on all fours. By the way, there not to be a free rider. A free rider is
very little interpretation without used to be a federal law, based on one who consumes resources for
“activism.” It’s an analytically use- the militia clauses of the constitution, which he did not pay a price.
less term of opprobrium, whatever requiring persons to buy muskets if
its rhetorical value. It’s important to they were designated as militia (CONTINUED below, next page)
remember that the constitution is not members by the state. Required
itself value neutral; we have it not purchase! And, in Heart of Atlanta
just to create a reasonably orderly
society but to promote liberty, equali-
ty, fairness, justice, and utility or BAD COMIC OF THE WEEK
welfare—all of which are moral
values. The stance of the courts is
that it is an empirical and a legal fact
that the constitution—and much of
law—embeds moral values, and the
task of the court is to determine how
society views these values. In prac-
tice, it’s true, the concepts are sys-
tematically ambiguous and not easily
susceptible to empirical verification,
so the judge’s own values will come
to be used as a kind of proxy for
societal values. This is pretty dan-
gerous, but there is no help for it
because all important concepts are
seriously ambiguous and vague.
The view that it is simple to dis-
cern right and wrong in all contested
policy issues is … simple. It remains
improper, however, to invoke pure
moral analysis as an overarching
non-legal determiner of legal inter-
pretation. And if it were otherwise,
morality could be used to further
either side of the argument. The
opponents of the mandate complain O’REILLY’S TOP FIVE LIST:
that it is immoral to force someone
to make a particular economic deci- DUMB STATEMENTS OF 2010
The following top is borrowed from evidence of that. I am evidence of
at The Music The O’Reilly Factor airing on the Fox that. I have been called the first
installment of the
News Channel, December 17, 2010. Asian legislator in our Nevada State
HARD Series featuring DJ Falcon, 5. Speech by then Speaker of the Assembly.”
Mr. Oizo, Congorock, Sean Per- House, Rep. Nancy Pelosi (D-CA) 2. In May 2010, United States
ry and of course Destructo - plus in March, 2010: “The final healthcare Attorney General, Eric Holder
other artists. Expect tweekers into legislation that will soon be passed responding to questions from Rep.
Falcon, young people on that stuff
Miley Cyrus was smoking, people
will deliver successful reform at the Ted Poe (R) in a House hearing
who like electronic music but don't local level. But we have to pass the regarding the controversial Arizona
bill so that you can find out what is in immigration law which the Attorney
really like dubstep, girls in yetti boots
and people who will regret not goingit away from the fog of the controver- General’s office filed suit against
to Together As One. sy.” Arizona to invalidate as unconstitu-
Camp Freddy at The Roxy. The 4. Former BP Chief Executive tional. Rep. Poe: “Have you read
Officer Tony Hayward in May 2010: the Arizona law?” AG Holder: “I have
final night of Freddy's Friday residen-
cy that has seen the likes of Steven“We’re sorry for the massive dis- not had a chance to – I have glanced
Tyler and other rockstars parade prruption its cost their lives. We’re - at it, I have not read it.” Rep. Poe:
through the legendary Strip ven- There’s no one who wants this thing “It’s ten pages - it’s a lot shorter than
ue. Expect fans of Camp Freddy, over more than I do – I’d like my life the health care bill which was 2,000
Sunset Strip regulars, and at least back.” pages long. I’ll give you my copy of
one person hungover from Crash 3. U.S. Senate Candidate for Ne- it if you’d like to have a copy . . .”
Kings and The Duke Spirit at The vada, Sharron Angle (R) October in 1. Late 2009 on the House Floor,
Roxy the night before. March 2010, while addressing 150 Rep. Alan Grayson (D-FL): “The
The Raveonettes, Autolux, School Hispanic high school students: “I Republicans’ health care plan for
Night DJs at Standard Holly- don’t know that all of you are Latino. America – ‘Don’t get sick!’ If you get
wood. The pricier choice for the Some of you look a little more Asian sick America, the republican health
hipster elite. Definitely for those who
dig Mondays at Bardot. to me. I don’t know that. What we care plan is this: ‘Die Quickly.’
know is that we are a melting pot in That’s right, the Republican’s want
Be in the know—Sign up for the 2011 this country. My grandchildren are you to die quickly if you get sick!”
Blast at www.supergoodmusic.com! Email the editor your own top five list—editor@LAProfessionalExpress.com
 COMPLIMENTARY
THE LOS ANGELES PROfESSIONAL ExPRESS
LAProfessionalExpress.com
IRAQI SECURITY FIRMS OPERATE ‘MAFIA’
HALIBURTON EXECUTIVE: FIRMS ARE
CRIMINALLY INFLATING SECURITY PRICES
A senior executive at Halliburton
in Iraq alleged in a private diplomat-
ic cable that security companies are
operating a "mafia" to “artificially
inflate their outrageous prices,"
according to a recent document
published by Wikileaks.
Written by a senior diplomat in
the US's Basra office, the confiden-
tial diplomatic cable discloses the
hostility between private security
firms, oil corporations and the Iraqi
government as coalition forces pull
out from defending foreign industry
interests.
John Naland, chief of the recon-
struction team in Basra province,
wrote in January this year that
several oil company representatives
complained of "unwarranted high
prices" given an improving security
situation since 2008.
"Halliburton Iraq country manag-
er decried a 'mafia' of these compa-
nies and their 'outrageous' prices,
and said that they also exaggerate
the security threat.
"Apart from the high costs for
routine trips, he claimed that Halli-
burton often receives what he says
are 'questionable' reports of vulner-
ability of employees to kidnapping
and ransom. He said that he recent-
ly saw an internal memo from their
security company which tasked its
employees to emphasize the persis-
tent danger faced by IOCs
CONLAW
(CONTINUED from first page)
Our discussion focuses on the
constitutionality of a law in the United
States, where each person has the
right – by virtue of laws imposed at
every level of government (local,
state and federal) – to receive stabi-
lizing care in some emergency room.
Everyone gets sick sometime, and a
substantial portion of those who
make use of emergency room laws
will not pay their bill; they are neither
insured nor can they afford to pay
the cost of their visit. Free riding is
dangerous to all of us. That’s why
the Act has the individual mandate—
to keep the payers from paying too
much. As David Lazarus of the L.A.
Times said, “there’s safety in num-
bers.” (L.A. Times, 12/21/10.)
Why mention this if moral analysis
isn’t directly relevant? Because it’s
instructive in guiding us through
doctrine. If you think of why free
riding is morally wrong, you get a
clue as to why a legislature would try
to blunt it—and legisla-
tures are where moral
considerations in law “There used to be a fed-
making are supposed to
be addressed. And if the eral law, based on the mi-
legislature decides to
enact something, based litia clauses of the consti-
on the legislators’ moral
views (yes, they also do tution, requiring persons
horse trading), the con-
stitutional question is to buy muskets if they
whether the legislature—
in this case Congress— were designated as mili-
has the constitutional
power to implement its tia members by the state.
moral position. If there is
no special right to opt Required purchase! “
out, then the question is
whether Congress could rationally
believe that the economic impact of
free riding in imposing unjustifiable
costs on the rest of us is sufficiently
great to permit regulation under the
commerce clause. The answer is
yes, and we don’t have to—and
indeed are not supposed to—revisit
the moral considerations that
(supposedly) informed the legislative
process. So that’s one way to see
how moral analysis filters into consti-
tutional doctrine. If there were a
special right or interest triggering
heightened scrutiny, then the ques-
tion would be whether the govern-
ment has an important or compelling
interest that is substantially furthered
by narrowly tailored means to reach
its goal. How to rate this importance
or compellingness sounds like a
moral issue, but as a jurisprudential
matter, the court’s task is to deter-
mine if these interests can, within
traditional U.S. moral and policy
beliefs, be rated strong enough to
overcome the constitutional claim-
ant’s interest. Note that even if a
specially protected constitutional
interest were at stake and that regu-
lating “economic activity” is presump-
tively unconstitutional, the govern-
ment’s program can still survive
heightened scrutiny if its interests are
[international oil companies]." Na-
land wrote.
The document, written nine
months after British troops handed
over command of their base in
Basra to the US army, does not
name the Halliburton manager.
According to the leaked diplomat-
ic cable, it cost around six thousand
dollars to hire a security firm for four
hours in Basra in January. A typical
trip would include four security
agents, drivers, and four armored
vehicles. A recent visit by a member
of Iraq's government from Baghdad
to Basra and back cost about
twelve thousand dollars, the cable
stated.
Hostilities between private securi-
ty companies and the Baghdad
government had increased in Iraq
following the decision by the US
courts in December 2009 not to
prosecute anyone for the Blackwa-
ter killings of 17 Iraqis in Baghdad
in September 2007.
The source for this information
was a British security company
boss, whose name has been re-
dacted.
"According to [the British nation-
al] a China National Petroleum
Company (CNPC) security team
was stopped in Basrah [sic] city by
the Iraqi police in a 'clear attempt to
disrupt and cause panic to the
clients.' [The British national] said
strong enough. Not all government
action is struck under strict scrutiny.
What if I agree with the objective
of the Act, but as an advocate of
federal-state separateness, have
fears in light of the Supremacy
Clause, that states’ rights would
be totally swallowed by the fed if
this law is permitted to stand.
After all, if inaction is grounds for
finding effects on interstate com-
merce, and the growth of marijua-
na in one’s own house is a feder-
ally regulable matter per Gonzales
v. Raich, then what remains out-
side the scope of Congress’s
powers? Surely, the Constitution
does not grant Congress plenary
powers.
This is the proves-too-much argu-
ment, and I’ve already said that the
analogy to making people eat broc-
coli or brush their teeth is quite a bit
off. There is no algorithm to show us
where to “draw a line” here, but recall
that we’re discussing “inactivity” with
respect to an overall, otherwise valid
program (whether you like the pro-
gram or not) that might be shattered
without the individual mandate.
That’s a major factor and allows a
fairly clear decision. We don’t have
to be able to decisively answer all
contested cases in order to validate
the clear ones. If someone believes
that the Act or the MEC provisions
are bad economic policy, bad moral
policy or unconstitutional, he or she
should take the only sound course of
constitutional argument under pre-
sent conditions: concede that the
program is valid under the doctrine
as is—as I said, the absence of an
exact precedent obviously cannot be
itself determinative—and then pro-
pose that the doctrine be changed on
the ground that the doctrine is consti-
tutionally unsound, and that the
change be implemented by in part,
by overruling certain cases, including
Wickard v. Filburn. That case held
that a farmer, Roscoe Filburn, who
grew wheat to feed his farm animals
for home consumption, was required
to abide by nationally-imposed limits
on wheat growth because his individ-
ual wheat growth, when aggregated
with that of all other farmers, would
disrupt the federal quota devised to
help iron out business cycles.
This change-the-doctrine argu-
ment would be more straightforward,
if more uphill, and it would be hon-
that the Iraqi police stopped the
convoy and showed a letter from
the Ministry of Interior (MOI) stating
that as of January 12, personal
security teams now faced a more
restrictive weapons regime. The
situation was eventually resolved,
and the convoy was released, but
[the British national] said that this
episode could presage a more
restrictive posture towards security
firms 'in retaliation or the Blackwa-
ter verdict'," wrote Naland.
The cable also says that security
companies are being encouraged
by the Iraqi government and the oil
companies to employ more Iraqis
and fewer westerners in frontline
jobs.
"According to XXXXXXXXXX
[sic], the GOI [government of Iraq]
is anxious to 'get rid of all the white
faces carrying guns' in their
streets," it reads.
Afghan authorities last week
arrested a British private security
company employee and sentenced
him to eight months in jail, the latest
move in the government's crack-
down on private security firms.
Global Strategies Group consultant
Michael Hearn was arrested last
Wednesday for allegedly failing to
register weapons with the govern-
ment.
By Edgar Tenenbaum | Staff Writer
est. It might even garner the votes of
several conservative Justices. If it
doesn’t work, it doesn’t work. True,
as a lawyerly tactic, one generally
argues “this is beyond current doc-
trine” before one argues “we die
under this doctrine and it should be
replaced with sounder rulings.”
Recall that in a federal system
there is a federal government; we
aren’t just a loose aggregation of
separate nations, however much
some would like to see the Articles of
Confederation restored. There is a
spectrum of types of federalism, and
in one type, the federal government
is expected to do things that the
states would like to do but can’t very
well do separately. If you think, for
philosophical or other reasons, that
states shouldn’t do certain things,
that’s another matter.
Switching gears, there are numer-
ous cases pending before federal
district courts across the country
challenging the Act and its MEC
provisions. How do we know
which of these we should follow,
or which will end up in the Su-
preme Court?
I don’t think it’s pos-
sible to tell in ad-
vance—it depends on
the configuration of
each case and how it
relates to the other
cases. The Court han-
dles this in lots of differ-
ent ways. Sometimes it
consolidates cases, but
focuses on a particular
one—e.g., Brown v.
Board of Education
(holding segregated
schools to be inherently
unequal) was decided
via a “consolidated
opinion” deciding the determinative
rule for all the cases. Alternatively,
the Court could take all the cases,
write an opinion deciding one of
them, and remand the others to the
lower courts to be decided in light of
the decided case. But on this specif-
ic issue, you need to talk to a federal
courts person.
Finally Professor Shapiro, much
discussion has been made regard-
ing whether the MEC provisions is
tax or penalty, and if it is a penal-
ty, the argument goes, the MEC
provisions are unconstitutional
because they penalize citizens for
not doing. What say you?
The analysis is not very different
from the one we just conducted.
Inaction is coupled with another
action. My colleague and former
chief of staff at the Joint committee
on Taxation, Professor Ed Kleinbard,
has published an extensive analysis
of this issue in “Constitutional Krep-
lach.”
Thank you Professor Shapiro for
your many insights and for help-
ing the Pro Express fulfill its edu-
cational mission. We hope to
have you back.
Interview by Zein E Obagi Jr
A MULTIWAVE PUBLICATION
Issue No. 1—16  Thursday, December 23, 2010
Above: Private security contractors near the Rumala oil fields pose for a photograph on a rooftop. Courtesy AFP.
LA(id) Realationship Advice
From our Dearest Sex Advisor
Dear Dearest Sex Advisor,
My boyfriend’s mother is a raging
alcoholic. Is it neCESSary for me to
same geografuckal region, and
share the same twisted perversion of
reality. When she first met me, she
near misses and misters materi-
al<o>zed in the skies, twinkling like
the stars in her eyes.
go visit her in the hospital during the dismissed me as another egotesticle My thoughts are whipped from liquid
holidays when all she does is yell at scoundrel, another of the countless to ice, and then into gold. Cummer-
me? villainous civilians, but something cials have crapitalized and com-
-Mama Drama about the glimerence in my eye, mode-ified anything worthwhile
beamed straight from my heart, that’s ever been tried. Cynical Trials
Dear Dramamine, caught her at10ion for long enough and Errors of Judge Mints. Men-
If your relationship with your boy- to allow me to transmit a vortext thol8 and wait, ignore the rapid
friend is serious, you should accump message. passing of the dates, hear the clink-
(oon)any him while he visits his “I’ve got glockoma, all I see are ing of the plates.
mother because there are probably guns.” It was the most earnest at-
few rarer joys in her bleak world than tempt at cum-unication I could con- Assuredly,
being able to lash out at you for trive, given all the pressure, I can’t Vitus S. Hearn
stealing away her precious son, believe that I survived. Time shoots
using him for all the things that laws past me like bullets, light grazes and Happy Holedays:
and customs
have prohibit-
ed her from
expressing.
Also, chances
are your
b o y f ri e n d ’ s
mother's alk-
holeic prope-
nisty for par-
oxysms has
given him a
sizable share
of trauma
from
mama, much
his
more severe
than the
onslaught of
insults she
bestows upon
you. You are
ostensibly a
source of
cumfort for
him, so be
strong and
support him
during the
time of crysis
that is the
holiday see-
son and use
the wounds
caused by
familial pain
and suffering
as a scatalyst
that (con)
fuses you to-
get-her.
She and I
cum from the
COMMUNISTS TORTURE TIBETAN ARTIST
Samten Dakpa was victimized by Dakpa escaped from police cus- hold a paint brush without pain for
the communist Chinese police for tody, crossed the border into Nepal the first time in years. His left hand
painting classic Tibetan images as and then to India before finally is still badly scarred and has limited
a teenager. The Chinese police , arriving in the United States in mobility.
intent on suppressing Tibetan cul- 2003, a dozen years after his tor- "Just these two fingers are stuck
ture, arrested, beat and tortured ture. here and I cannot open more than
Dakpa, shoving his hands into a "When Sampten first came to us, this," Dakpa said as he tried to
coal-burning oven. he was in excruciating pain, both stretch out his hand. "Middle finger,
"It was like a barbecue," he said, physically and emotionally. He if I try to open strongly, it hurts a
describing the painful burns on his could barely use his hands," said Dr lot." This spring surgeons plan to
hands. CNN International reported, Allen Keller of the Bellevue Hospital operate on the left hand.
“Police shoved a rifle butt into Center at New York University. "He As a result of torture, Dakpa
his mouth, forced him to stare at would try to paint and he could says he has nightmares in which
the sun and beat him when he barely hold a paint brush. When he he is chased along an icy river.
was unable to keep a cockroach did, he would get terrifying memo- The ice cracks and he falls into
within a small circle, using a ries of the torture he endured." the freezing water.
stick.” Doctors performed surgery on By Yuri Isacov | Staff Writer
Dakpa's right hand, allowing him to yuri@laprofessionalexpress.com