Legal Commentary

As I've detailed, the lawsuits challenging the constitutionality of the health care legislation have no chance of succeeding under current law.  I fully expect the lawyers who sign the briefs to face a motion for Rule 11 sanctions and, if they appeal to a federal court of appeals, for costs.  (Suggestion for hapless first-year DAG's working on the draft briefs: buy some professional insurance coverage this year.)  That prospect raises the interesting question whether the litigation can possibly represent a "nonfrivolous argument for...reversing existing law."   

Even the litigation's defenders agree that the suits have no chance of success without a "Bush v. Gore"-type decision: a decision that totally rejects existing precedent to do whatever the court feels like.  But, defenders say, that's always a possibility.  So perhaps the argument against sanctions would be the same: hey, you never know.  If that's going to be the AGs' argument (and if anyone has a better one, I'd be interested to hear it), they should feel pretty uncomfortable.  Because even if they win on that one, they're undermining their own role.  For one thing, I think AG's should be standing for the proposition that the law is predictable and principled, not the product of whim.  But there's a more pragmatic problem, and it deals with tax fraud. 

I happen to have thought about this question a lot in connection with the constitutionality of the tax laws, because it used to be my job to keep tax evaders in jail.  Now, to be guilty of a federal tax offense, you have to "wilfully" violate the law, which means you have to know what you did was unlawful.  But lots and lots of defendants argue that, though they knew their position had been rejected by the IRS and the Courts, there was always a chance that the Supreme Court could finally see the light.  Or maybe they'd just end up in front of a really anti-government circuit panel, and pull out an improbable victory.  Given that chance, how could the government argue that defendants knew their position was unlawful? 

In other words, the AG's (assuming they will defend themselves against Rule 11) and the tax evaders will be making the same arguments.  And, yes, states too have penalties for tax fraud.  So, uh, is that a wise litigating position for a state's chief law-enforcement official?

As for the merits, I think both sets of arguments ought to be sanctionable.  I accept that, as Charles Yablon has argued, this means that some small number of meritorious suits will occasionally be punished, just as I accept (painfully) that a "beyond a reasonable doubt" standard permits some unjust convictions.  Both are the price of a manageable justice system.  No court system could function, I think, if it continually invited private citizens to believe the courts might whirl on a dime at any moment and throw away hundreds of years of precedent --- or, to take the HCR example, precedent upon which the entire modern state is constructed.  And the tax system could be crippled by litigation if every taxpayer could constantly challenge every settled tax question. 

But that is not to say that we necessarily throw the book at a litigant as soon as their complaint is filed.  In court filings, we can give notice of prospective sanctions, and allow the party to withdraw the pleading and escape sanction.  This technique doesn't work as well with tax filers, but I'll spare you all that discussion.