Here’s My Invite, so Friend Me, Maybe? Changing Notions of Privacy in Social Media

I first want to take a moment to thank the Marquette Law School Blog editorial faculty for inviting me to be the alumni blogger this month. I have enjoyed the content the MULS blog has offered since its inception, and I am honored to now be a part of it.

I primarily practice in management-side, labor and employment law in Wisconsin, but I have a special interest in how social media interacts with these practice areas. My posts will focus on various ways that social media collides with the law in this respect and others.

As a side note, I not only observe social media but I am a user, too. You can follow me on Twitter @jesse_dill. I typically Tweet about developments dealing with labor and employment law, Milwaukee, and the occasional grumblings about how my favorite teams are not meeting my perfectly reasonable (read: exceedingly high) expectations.

Social media services like Facebook, Twitter, LinkedIn, FourSquare, Instagram, and the like have quickly become the hot topic in my line of work because of their widespread use among employers and employees. Whether an employer wants to utilize a service for recruiting purposes or try to regulate its use by employees in the workplace, a host of fascinating issues arise while attempting to apply old legal theories to these new devices.

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Victory For ObamaCare!

The decision in National Federation of Independent Business v. Sebelius is a victory for the supporters of the Affordable Care Act, and a fairly broad vindication for the constitutionality of the law.  Here are my initial thoughts:

This is a big win for the Obama Administration.  The only portion of the law struck down is the Medicaid expansion provision, on the grounds that Congress cannot threaten to take away funds previously granted to the States if the States fail to accept new conditions.  This strikes me as a fairly reasonable gloss on the case of South Dakota v. Dole and, at the same time, a constitutional interpretation that still allows Congress a fair amount of flexibility to attach conditions to the receipt of new federal dollars.

I am not persuaded by Justice Robert’s argument rejecting Congress’ power under the Commerce Clause.  It strikes me as primarily conclusory rather than analytical, and my initial reaction is that it should be considered dicta since Justice Roberts upholds the ACA on other grounds.  Of course, I have already made clear that I am inclined to agree with Justice Ginsburg that the Court’s precedent under the Commerce Clause provides ample support for the ACA’s constitutionality, as I argued in previous posts here and here.

Nor am I convinced by Robert’s tax argument.  He labors a great deal to make the case that the ACA does not impose a “tax” for purposes of the statutory Ant-Injunction Act but nonetheless imposes a “tax” under Congress’ constitutional taxing authority.

It appears to me that Roberts tried to split the baby in a statesman-like way, by giving victory to Obama but by using reasoning and language designed to placate President Obama’s critics.  Am I the only person who read Justice Robert’s opinion and thought of Marbury v. Madison?

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ObamaCare Is Still Constitutional

Today I particpated in another debate over the constitutionality of the Affordable Care Act’s individual mandate.  At the invitation of the Milwaukee Chapters of the Federalist Society and the American Constitution Society, I debated Robert Levy of the Cato Institute over luncheon at the Milwaukee Athletic Club.  My thanks to our hosts, to Mr. Levy, and to the audience.  Below are my prepared remarks.  My previous post on the consitutionality of the individual mandate can be viewed here.

In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

We must never forget that our Constitution is a document that was intended to create competent powers for Congress for general purposes.

Much of what Mr. Levy cites in oppostion to the individual mandate is based upon abstract principles.  However, when we interpret the Constitution, we do not begin with abstract theories of political philosophy, and then attempt to shoehorn those theories into the text.

Instead, when we interpret the Constitution, we begin by looking to the text itself.

The power to “regulate,” which is the power delegated to Congress under the Commerce Clause, is the power to prescribe the rules by which commerce is governed.  The word “regulate” means “to direct” or “to command.”  Therefore, the plain meaning of the word “regulate” in the text includes a grant to Congress of the power to require action.

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