SelectedWorks @ Chapman University Dale E. Fowler School of Law
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King v. Burwell and the Rise of the Administrative State
No full textThe Patient Protection and Affordable Care Act (ACA) is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never delegated the power to raise taxes or spend tax subsidies in ways that no statute authorizes.
For example, the ACA recognizes provides that territories of the United States (e.g., Guam) are “States,” for purposes of this law. Section 1323 provides states that if a “territory” creates an Exchange, it “shall be treated as a State” under this law. Congress knew how to define “state” to include more than “states.” It did that when it defined “territory” as “State.” It also says that the District of Columbia is a “State” for subsidy purposes. A section provides, “In this title, the term ‘State’ means each of the 50 States and the District of Columbia.” However, no section of the law defines “State” to include the Federal Government. An earlier version of the bill—one that Congress did not enact—provided that “any references in this subtitle to [any] Health Insurance Exchange…shall be deemed a reference to the State-based Health Insurance Exchange.” That would treat Federal Exchanges the same as State Exchanges. Congress did not enact that version.
If the IRS has this broad power to amend the statute to say that “federal” means “state,” we will have come a long way from rule by an elected Congress to rule by unelected bureaucrats
Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of ‘Property’
No full textWhat happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants\u27 identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing their new competitors of stealing customers and destroying the value of taxi medallions. Both conflicts arise from the same basic problem: copyrights and taxi medallions more resemble privileges than property. They not only lack property\u27s natural, customary, and common law roots; they also suffer from fuzzy and ill-defended boundaries. These deficiencies make it economically inefficient to protect copyrights and taxi medallions with remedies equal to or greater than those that protect property. Liability for damages should suffice. These and other insights follow when we analyze copyrights and taxi medallions as statutory privileges and reserve property for other, more deserving subjects
Will Retroactive Proposition 30 Ever Be Challenged?
No full textProfessor Doti\u27s article challenges the constitutionality of California Proposition 30. California voters passed Proposition 30 in 2012 to increase for seven years the income tax rates for those making more than 500,000 in taxable income was increased from 9.3% to 12.3%. Proposition 30 was approved by voters on November 6, 2012, but the increased rates were made retroactive—without effective notice—to January 1, 2012.
Retroactive tax laws eviscerate respect for the law and may result in a deprivation of due process of law under the Fifth Amendment of the U.S. Constitution. Proposition 30 exemplifies the inherent unfairness of a retroactive tax and may be unconstitutional. But challenging it may be a tough battle, as the United States Supreme Court has been deferential to retroactive taxes