Author Archive for Jonathan Lurie

Understanding the 25th Amendment, a Constitutional Succession Mechanism

Recently the headlines have been full of discussion revolving around the 25th Amendment. Most of this is focused on the idea that the Amendment could be a tool to remove President Trump from office due to mental health issues. Since the 25th Amendment was adopted in July of 1965, this portion of the Amendment has never been exercised. This is no accident.

The section of the 25th Amendment in question here, the fourth of four sections, has an extremely rare and difficult implementation mechanism, similarly extreme standards before a president can be removed under the Amendment, and a very simple mechanism by which a President can assert they have been improperly removed.

The 25th Amendment allegations relating to Trump hinge on mental health allegations stemming from posts out of the President related to conspiracy theories and other aggressive behavior. At this point we have not seen much action on these allegations beyond a petition to require President Trump to undergo a psychiatric evaluation. However, we won’t really be addressing the substance of the mental health allegations against Trump too much in this article.

We’ll instead be focusing on the 25th Amendment itself, its history, its purpose, and exactly how it works. This a crucially important Constitutional Amendment, it’s important to understand exactly why it was adopted and how it works.

The Origins and History of the 25th Amendment

As mentioned, the 25th Amendment was ratified in July of 1965. This is notably only two years after JFK’s assassination in November of 1963. This is not a random correlation, the actual assassination of a sitting president led those in the Government to realize that the Constitution left the U.S. ill-prepared for the potential of a president suddenly being unable to perform their duties.

Before the 25th Amendment was adopted there was very little in the Constitution regarding the actual process of succession should a president die or be unable to perform their duties. There was an established precedent that the Vice-President would take over the duties of the president, but it was still unclear whether the VP was an acting president or actually the president. The first time the issue was raised, back in 1841, President William Henry Harrison had just died, and his VP John Tyler rushed to Washington to be sworn in. It was generally accepted that he was taking over the role of the president. However, he still received letters addressed to the Vice-President-Acting-President for his entire stint as President, much to his displeasure.

This was the accepted means of handling the matter up until the 25th Amendment was adopted. However, it created a clear issue. In 1881, the government essentially stopped all function after President Garfield was wounded in the assassination attempt that would ultimately lead to his death. The Vice President at the time refused to act in any way as president or take steps towards acting as president until Garfield had passed out of fears it would be unconstitutional. This meant there was no action in the government for months.

These were the fears in the minds of Congress when they voted to adopt the 25th Amendment, what if the assassination attempt on JFK had not instantly killed him? What if the government had ground to a halt to wait on his death or survival and there were no agreed upon constitutional means of replacing the president–temporary or otherwise. So, the 25th Amendment was born with the goal of avoiding situations where something suddenly changes, or a situation unexpectedly develops where the president is so unwell or so unfit that he is rendered incapable of performing his duties.

25th amendmentSince its adoption over half a century ago, the 25th Amendment has been invoked only six times, most notably by President Richard Nixon to replace the recently resigned Vice President Spiro Agnew. However, as we’ll see in the discussion of the exact provisions of the 25th Amendment, none of these six invocations deal with the section discussed in the media discussion regarding President Trump’s mental fitness.

How the 25th Amendment Works

While an incredibly important change, the actual function of the first three parts of the 25th Amendment are facially very simple–if not well legally explored in the courts. There are four sections, each addressing one element of the common questions about presidential and vice-presidential succession that existed prior to the Amendment.

First, section one addresses the long-held confusion that haunted Tyler for his whole presidency after the death of Harrison. Under the first section of the 25th Amendment, the vice-president officially becomes the president when a president is removed from office. This meant that Gerald Ford became president when Nixon was removed from office and in the unlikely event Trump was removed from office Mike Pence would take his place.

The second section, as discussed in the context of Nixon and Spiro Agnew above, places a requirement on the current president to nominate a replacement vice-president should the position become vacant through death, illness, or any other removal. This appointment is confirmed by a majority of the House and Senate.

Section 3 of the 25th Amendment deals with the temporary transfer of power made by the President. It allows the President to submit a written declaration declaring themselves temporarily unable to discharge their presidential duties. This declaration can later be reversed by a second written declaration which essentially says the opposite of the first.

This section of the Amendment has been used a few times, once by Ronald Reagan and twice by George W. Bush. Every time the section has been used it has transferred power to the respective Vice President while the President in question underwent surgery that had been planned.

This takes us to the section at hand, section 4, the ability of the Vice President to take steps to remove a President who is unable to fulfill his duties but cannot (for instance a situation where a President is in a coma) or will not step aside. This section has never been used, the fact that it must be initiated by a Vice President makes it a unappealing option for both political and appearance purposes.

The way it works is that the Vice President, accompanied in his message by a majority of the department secretaries such as the Department of Justice, Department of Labor and the Department of Defense, must send a message to the Speaker of the House and the President Pro Tempore of the Senate. This message must say that the President is currently incapable of fulfilling their duties.

The sending of this letter requires the support of both the Vice President and quite a few high ranking political officials appointed by the President to be removed, so you can see how unlikely this is to occur barring extreme circumstances just based on the political realities of the situation. Should the Vice President and this majority come together however, the sending of this letter immediately makes the Vice President the acting President.

This is not the end of the process. If the President doesn’t agree that he is unable to perform his duties and isn’t incapable of responding due to health issues, he can simply send his own letter to the House and Senate saying that he’s capable and this immediately reverses the whole process and restores his powers as President.

After this letter from the President, the Vice President and his majority have four days to again declare the President unfit. If they do this, Congress has 48 hours to convene and then must decide by a two-thirds majority that the President must step aside within the next 21 days. If Congress agrees with the Vice President, the Vice President once again becomes acting President. If they don’t agree, get the necessary supermajority, or fail to act within the 21 day timeline, the President stays the President.

Even after all this hullabaloo, the Vice President does not become the President–only acting President. This has very little practical difference in terms of the powers the acting President would hold. However, while the situation has never occurred, so the issue has never been legally disputed in the courts, this heavily implies that the power could be taken back for the former President if the Vice President lost his support with the majority of department secretaries or chose to simply give the power back.

When is a President Unable to Fulfill Their Duties?

You can already see how convoluted and unlikely section 4 of the 25th Amendment is to be used as a mechanism to remove any sitting President. However, the fact that it has never been used has left quite a few legal questions without a settled conclusion. Specifically, no court has ever clarified when a president ceases to be able to perform their duties.

The goal behind the Amendment would likely require something drastic and, at a minimum unexpected. The Amendment was designed to make sure the U.S. isn’t up a creek if something suddenly happens to the capabilities of a President. The most obvious example that would meet the criteria of the Amendment would be if a President was left in a coma. Anything less than that would leave the situation unclear. When it comes to mental health, it would likely require a serious mental break before it would rise to the level required for invocation of the Amendment.

What’s more, while the issue isn’t directly addressed in the Amendment itself, the goals behind the Amendment on its creation at least imply that the disability requires a certain amount of suddenness and unexpectedness. This means that any behavior that existed prior to election is unlikely to rise to the level of inability to perform duties. Despite how you may feel about the situation, the President is elected by most of the people and the ability to remove a President for traits that existed prior to election would raise some concerning implications–it could frankly set a dangerous legal precedent for the future.

This is not a blanket rule, there are certainly some things which could come to light that were unknown prior to election that could call a President’s capacity into question. However, in general the evidentiary bar to establish that a President is incapable of performing their duties is quite high and generally requires literal incapacity–either mental or physical.

Does Section 4 of the 25th Amendment Apply Here?

Section 4, quite appropriately given its topic, is incredibly difficult to invoke. The political reality is the Mike Pence is extremely unlikely–pushing the bounds of impossibility–to gather most department heads and take the actions discussed in section 4 of the 25th Amendment.  Even were this incredibly unlikely event to transpire, there is still the question of whether anything President Trump has done can rise to the level required to make him incapable of performing his duties.

This is an incredibly high bar. However, it is not a well defined legal area. Have Trump’s actions risen to the level where discussion of 25th Amendment action is warranted? I’ll leave it you to decide.

Understanding California’s New Gun Control Laws

Last year was the deadliest year for mass shootings in the history of the United States. The shootings in Las Vegas, the Texas Church shooting, the Fort-Lauderdale-Hollywood International Airport shooting and more contributed to a year with 345 mass shootings–nearly one a day. 14,000 were killed in these mass shootings this year and over 29,000 injured.

The U.S. far and away has the dubious distinction of the most gun deaths in general and most gun deaths per capita–nearly triple the next highest high income country. To put the above numbers in perspective, Japan expressed concern in 2016 as the yearly gun death total had risen from 8 to 27. With this in mind, effective gun control measures have been a hot topic of political discussion. The issue is obviously an extremely contentious one. However, it’s crucially important to find a way to eliminate the sheer number of these horrific shootings.

With this in mind, many states have introduced new gun control laws this year and others have updated existing laws. As an ongoing issue, many states such as California have laws that have been phasing in over the years. As the new year starts, California has had many of the elements of their newest gun control law–Proposition 63–take effect. Let’s look at the new provisions, the provisions that have already taken effect, the provisions that will take effect in the future, and the legal challenges the California laws already face.

gun controlCalifornia’s Gun Control Changes in the New Year

As of January 1st, California’s Proposition 63 has had two big changes take effect–one limiting the sale of ammunition (especially important in light of the special tracer rounds ordered remotely in the Las Vegas mass shooting) and another requiring criminals to give up their firearms.

The ammunition changes require sales of ammunition to be processed through licensed vendors and conducted in person. This means you can’t purchase ammunition over the internet or from a catalogue–even if you buy it from out of state. Any ammunition purchased in this manner in California will have to be shipped to a licensed ammunition vendor and picked up at the store. This particular provision is aimed, as mentioned above, squarely at the ability of a mass shooter to remotely stockpile enormous amounts of ammunition–over 1,500 rounds in the case of the Las Vegas shooter– without arousing suspicion. These rules are on top of other California laws forbidding direct mailing of ammunition.

The license requirement for ammunition sales only applies to vendors who sell more than 500 rounds of ammunition per month. These licenses are location specific and are obtained through the California Department of Justice after a background check on the licensee.

The second substantial change that began with the year puts a new mandatory rule in place under Proposition 63, requiring criminals convicted of certain types of crimes must turn over their firearms to the authorities. The rule also includes enforcement mechanisms to ensure this takes place. The biggest change here is the new enforcement mechanisms allowing law enforcement officers to make sure these criminals turn over their firearms.

Right now officers just have to go door to door to get these weapons, these newly adopted provisions of Proposition 63 changes this. The crimes that can trigger the law include most violent crimes, felonies, misdemeanors involving domestic violence, and illegal weapon use for example. As of January 1st, those convicted of one of these crimes are given a certain time period to provide proof that they sold or gave away their firearms. It is the job of probation officers and the courts to ensure compliance and act if they do not.

Elements Of Prop 63 Already Implemented

These two changes are newly implemented. However, several Proposition 63’s elements have been in effect for over a year. For example, in November of 2016 Proposition 63 made it illegal to sell or give ammunition to somebody to somebody when you have the knowledge that that person will give that ammunition to somebody otherwise not allowed to own a gun–a concept generally known in the law as selling to a straw purchaser. Proposition 63 also made it so that gun dealers were required to report the theft of ammunition to law enforcement in addition to the firearm theft reporting previously required. Finally, it made the theft of a firearm a felony in all circumstances–regardless of the value of the weapon.

July of 2017 brought several additional elements of Proposition 63 into effect. Firearm owners are themselves required to report the theft of one of their weapons within five days of discovering, or when they should have discovered, the theft or loss of the weapon.  The California Department of Justice was required to share with the FBI the personal information of anybody forbidden to own a firearm and continue state-run background checks t build a more comprehensive database of gun ownership. Finally, vendors who sell firearms need background checks from employees who handle ammunition or firearms.

Upcoming Provisions Next Year

Proposition 63 still has a few more provisions left to take effect. However, these last elements won’t take effect until 2019. First, the law will require ammunition vendors to track and record sales of ammunition and provide this information to the California DOJ just like they do with firearms sales. The vendors will also have to perform a background check before selling or transferring ammunition.

Finally, the law is scheduled to require those in possession of large capacity magazines (magazines with capacity for 10 or more rounds) to dispose of their magazines. While large capacity magazines (LCMs) have been illegal for some time, there was previously a loophole for those who already owned the magazines. This restriction, along with this loophole, has been the center of a serious legal case challenging the validity of Proposition 63 itself.

Prop 63 Currently in a Lawsuit Over Validity

Last June, Federal court judges were looking at a different part of Proposition 63’s LCM ban which was set to take effect in July of last year. These two judges came to two opposing conclusions–one ruling in favor of a temporary delay until a final decision was in place and the other allowing the ban to go forward under the premise that allowing a grandfathered loophole for LCMs made no sense as nobody could tell the difference between an LCM owned from before the ban and one that was illegally modified to hold 10 or more rounds. The judges noted the sheer number of mass shootings over the last several years but, ultimately, the LCM ban was slightly delayed.

The case is still ongoing, with filings made just a few months ago. However, similar efforts with the 9th Circuit–the Circuit governing California–have upheld similar LCM bans. This trend toward allowing this sort of ban has been upheld in many other cases across the country. Realistically, the LCM ban is likely to be upheld. What’s more it’s worth noting that California has banned the sale and manufacture of LCMs since the year 2000, Proposition 63 is exclusively closing the grandfathering loophole.

Regardless of the outcome of the case, it’s important to know both the law and your rights when it comes to firearm ownership wherever you live. What’s more, it’s important we enact laws that are effective in preventing mass shootings such as the many tragedies that have occurred over the last year. Proposition 63 is helping ensure responsible firearm ownership to do just that.

CA Legalizes Recreational Marijuana as Laws Change Across the Country

With new year upon us many a law enacted over the last year will all be taking effect at once. Among all this newly effected legislation, marijuana laws have taken an enormous role. The legalization of marijuana has been a rolling stone steadily gaining momentum over the last several years–both for medical and recreational use–and this year has been no exception.

As the ball dropped in New York we also saw quite a few criminal restrictions on marijuana drop across the nation. Perhaps nowhere more so than in California where they took the enormous step of becoming the sixth state in the U.S. to permit the sale of marijuana at licensed stores. Obviously, it isn’t just that simple, not only is marijuana still Federally illegal and in the sights of Attorney General Jeff Session’s Department of Justice, the laws require quite a few provisions which are important to understand in the light of such a huge shift in the legal landscape. Let’s look at the new California law–as well as upcoming potential changes in other states–and see how these laws apply to you and your business considering state law and the federal government’s take on the issue.

The Basics of California’s New Law

At its simplest level, California’s new position on marijuana is nearly identical to its position on alcohol. As of around a week ago if you go into a licensed shop and you’re 21 years of age or older you can buy marijuana so long as you have a driver’s license or ID card with you–either a California license or another state license works. You don’t need a medical marijuana license anymore but, as we’ll discuss later, it’s a bit too early to be throwing away your medical marijuana licenses.

Although you can buy marijuana now, that doesn’t mean you’re free to go light up in front of a cop. In fact, it’s still California state law that it is illegal to smoke marijuana in a public place. This applies everywhere, even if you could legally smoke a cigarette at that place. The penalty for this is not particularly extreme, a $100-$250 fine, but it is still a crime and something to keep in mind. It is perfectly legal to consume marijuana in your home or another person’s private property.

In terms of the businesses selling marijuana, while there are some who are already set up with a license as some California cities are considering opening marijuana lounges along the lines of a hookah lounge, it’s not going to be as easy as simply sending an application to the Secretary of State and setting up the next day.

Even after a business entity is set up, sellers will need to register with the California Department of Tax and Fee Administration and seek a license from one of three entities–the Bureau of Cannabis Control out of the Department of Consumer Affairs, the CalCannabis Cultivation Licensing Program through the California Department of Food and Agriculture, and the Manufactured Cannabis Safety Branch through the California Department of Public Health.

marijuanaRight now, you can expect all these places to extremely backed up with requests for licenses. Even once a business has a license, they need to be permitted with the city or county they plan to do business in–a matter that is complicated by the fact that many California cities are not currently allowing recreational dispensaries whatsoever.

At this point, mostly the same medical marijuana dispensaries that were already there. This being said, the cities that do allow recreational marijuana sales have generally already allowed these medical dispensaries to immediately move to recreational sales. It is also worth noting that California has now made the move of allowing cannabis trademarks, something that previously was a no-go.

Growing Marijuana Plants in Your Home

Growing your own marijuana in California is a bit of an odd issue as it’s primarily an issue that changes quite a bit from city to city and county to county. In theory, it has been legal for any 21 or older Californian to grow up to six plants per household since November of 2016. The only real proviso to this is that they must be kept out of sight of the public. The reality of the situation varies enormously based on local governments–some being incredible permissive and some much more restrictive. A few common local restrictions are permitting requirements, often expensive and difficult to obtain, and requirements that the plants are grown completely indoors.

Marijuana and Driving, Driving While High

First and foremost, don’t smoke marijuana and drive. It’s illegal and it’s irresponsible. However, to address the exact law on the issue, California now treats marijuana almost the same as alcohol you keep in your car. Just like you can’t have an accessible open container of alcohol in your car, you can’t keep an accessible open container of marijuana or any accessible means of consuming marijuana in your car.

As already mentioned, driving while impaired is absolutely a crime. However, it does raise some interesting legal issues. As it is, it is quite difficult for authorities to establish and measure current cannabis impairment. If an officer believes you are impaired, they will likely arrest you and–as it stands–if a blood test shows you have marijuana in your system a charge can be brought for driving while impaired.

A blood test is not a very reliable test of current impairment as it can show positive results from anything from 4 to 12 hours or–in the case of more regular users–several days. You can see the issue here, does a blood test really show whether you were currently impaired when you were pulled over?

What’s more, the usual tests for detecting impairment applied by law enforcement officers are not tuned to detecting marijuana impairment. In Massachusetts, the Massachusetts Supreme Judicial Court has already ruled that the field sobriety tests generally used by police officers as part of traffic stop cannot be evidence of driving under the influence of marijuana. This is likely an issue that will develop in the California courts over the next year or two, but is unresolved for now.

How Will Marijuana Impact Employment?

California, as is the trend across the nation, still allows employers to test employees for marijuana and fire, refuse to hire, or take other detrimental employment action against that employee or would-be employee based on the results. In fact, with some federal agencies this testing is required–not a surprise given marijuana’s federally illegal status.

However, it is a bit of an odd position given how close California’s treatment of marijuana is to alcohol at this point. It would be quite odd for an employer to act against an employee for drinking alcohol off duty if it didn’t affect that employee at work.

This treatment is a nationwide standard at this point. Not so long ago, the Massachusetts Superior Court dealt with this issue and took it even further by saying that an employer could take action against an employee prescribed marijuana as a medical treatment for Crohn’s disease and is under no obligation whatsoever to make the usual accommodations for a disability when it comes to marijuana.

Jeff Sessions Will Be Cracking Down

As marijuana legalization ramps up across the country, Attorney Jeff Sessions has left no question as to his position on it. Describing marijuana as equivalent to heroin and at one point controversially stating that he thought the KKK were ok people until he learned they smoked marijuana. Suffice it to say, he is not a fan.

This has manifested previously manifested itself in his Department of Justice taking the position that they will prosecute and seek the greatest possible sentences on all violations of federal marijuana possession laws–a policy opposite to the Obama administration’s approach of not prosecuting when an action was legal under state law.

Congress has not been entirely cooperative with his plan, giving the DOJ no money whatsoever to prosecute medical marijuana. However, this does not include potential prosecution over recreational use and, just last week, Sessions has announced that he will give federal prosecutors total discretion as to what to do when state and federal law contradicts on marijuana.

Jeff Sessions stance has drawn criticism from both Republicans and Democrats in the Senate. However, it is unlikely to change and will present something of a minefield as these types of laws move forward. Federal prosecutors seem unlikely to come down on individuals, but businesses selling recreational marijuana might be a different story.

Full Legalization is Spreading

If Sessions’ position is creating a minefield now, the next year of legislation is looking like it only be making the situation more complicated. At this point polls show that over 60% of U.S. citizens support full legalization for adults and the states are taking notice and moving to take advantage of the taxes to be earned on marijuana.

In the coming year Vermont, New Jersey, Maine Michigan, Delaware, Rhode Island, Connecticut, Ohio are all looking to legalize recreational marijuana in some form or another. Oklahoma, Kentucky, South Dakota, Utah, and Missouri voters will decide on medical marijuana. On July 1st of this year, Massachusetts makes the move hosting retail recreational marijuana brick and mortars. Marijuana is on the move in the U.S., make sure you know the law on the issue for where you live.

The Battle for the Internet: State Action on Net Neutrality

After the FCC ruling on net neutrality, several states have taken independent action to make these requirements a part of their state law and give you back the consumer protections that go along with net neutrality rules. For those unfamiliar with the situation, the FCC has recently repealed requirements that internet service providers (ISPs) not provide preferential treatment to different types of internet traffic, throttle users, or outright blocking content it doesn’t like. This repeal of consumer protections, despite substantial public outcry against the move from people of both political parties, opens the door for ISPs selling the internet in bundles like cable, censoring content by slowing it down or blocking it, and putting businesses over a barrel to force paid prioritization. The move incensed many politicians, as well as the public, and some have acted on the issue.

States which have taken legislative steps in the last week or so include New York, Washington, and California with California having two different laws to help maintain your protections. Several state attorney generals have also begun the process of bringing lawsuits challenging the FCC ruling. These laws and the lawsuits will both face serious challenges–both legal and political–if they hope to make any real headway. Let’s look at these recent steps and the stumbling blocks they will face as they move forward.

net neutralityProposed State Net Neutrality Laws

In California, lawmakers have approached net neutrality from two different angles. First, State Senator Scott Wiener out of San Francisco has proposed SB 822, was introduced on this last Wednesday–January 3rd–and approaches the issue as a regulatory issue through the California Public Utilities Commission. Another California Senator, Kevin de León out of Los Angeles, has introduced SB 460 which outright reenacts the consumer protection requirements of net neutrality as a state law requirement to operate in California. Since their recent proposal, quite a few lawmakers have asked to ask as co-authors to these laws.

Currently SB 822 is fairly simple, perhaps too much so to be effectively enforced. However, it will likely see substantial changes if it is ultimately passed. As it stands, it provides new duties to the California Public Utilities Commission (PUC). The PUC would oversee ISPs and ensure that they comply with the net neutrality provisions previously enforced by the FCC. Where the ISPs do not comply, the law would prevent them from receiving any state contracts, renewing California state franchises, or use any utility poles owned by California as part of their network. Taken together, these rules would represent both an extreme expense to ISPs and, in some situations, make operation within the state extremely logistically difficult.

SB 460, on the other hand, takes a more direct tact. It would outright make it illegal for ISPs to violate net neutrality provisions such as requiring businesses to pay for prioritization either to avoid throttling or to be given a internet “fastlane.” It would also make it illegal for ISPs to mislead the public as to their compliance with net neutrality rules, something that nearly every ISP has got in trouble for doing at some point or another.

As mentioned, these laws are simple at this point. However, both Senators associated with the bills have mentioned that they will take their time to ensure that the laws are thorough and address any current issues in their original drafts. These California senators are not alone. A Democratic Senator out of New York and a Republican out of Washington have both introduced similar laws in their respective states. New York has also considered rules denying state contracts to all ISPs who are not compliant with net neutrality rules.

The Difficulties These Laws Will Face

If passed, these laws will all face legal challenge–end of story. If not from the Trump administration and the FCC itself, the ISPs will sue. It would be ironic for Republicans, ostensibly the party of state rights, to come down on these laws. However, it seems very likely that these laws will face conservative judicial challenges. Conservative political interests and the Trump Administration have cracked down repeatedly on state laws such as sanctuary laws and legalized marijuana. This will very likely be the case for state net neutrality laws.

Once challenged, all these laws have a serious obstacle to overcome–the FCC ruling repealing net neutrality also specifically pre-empts state or local measures that would act contrary to the FCC ruling. This means that the FCC says that its own rules win in any conflict between its rules and laws like the ones that have been proposed. The FCCs pre-emption ruling covers both “requirements that [the FCC] has repealed or decided to refrain from imposing.” This basically covers all net neutrality provisions.

This pre-emption is likely to be enforceable in the courts. Federal law generally pre-empts state law. Broadband services are difficult for states to regulate where they cross state lines. Even when state laws deal entirely with in-state behaviors, their implications will effect multiple states and enter the realm of the federal and the FCC.

With the way the FCC net neutrality pre-emption policy is worded, such a challenge to these laws would be an uphill battle for the states. However, such a battle would not be impossible. These states will have to argue that the FCC does not have the power to pre-empt them as they have. This position has some support. Just last year the 6th Circuit ruled that the FCC did not have the power to pre-empt Tennessee and North Carolina laws restricting the expansion of smaller ISPs–instead allowing larger ISPs such as Comcast to maintain their ironclad grip on territory. While this ruling is not necessarily for the best for consumers, it does establish the precedent that the FCC does not have blanket authority to pre-empt the states.

The court, looking the Telecommunications Act which governs the powers of the FCC, argued that the act had not delegated the power of pre-emption over the states to the FCC in clear enough terms to support such a power. This ruling supports the premise that the FCC cannot stop these state net neutrality laws.

Lawsuits Challenging the FCC Ruling

While lawsuits may be forthcoming once these state net neutrality laws are passed, there have already been lawsuits filed on behalf of a number of State Attorney Generals challenging the validity of the FCC’s recent net neutrality repeal. With substantial fraud in the comment process on the FCC net neutrality ruling–apparently both dead people and Obama himself opposed net neutrality all along–several states such as New York have brought lawsuits arguing that the FCC’s administrative process and decision making–both the speed with which a decision was reached and the reasoning behind the decision–in repealing net neutrality was so poor that it was “arbitrary and capricious.”

This arbitrary and capricious language is not out of nowhere, it is the standard by which FCC rulings would be judged by the courts. Unfortunately, this also means that these lawsuits are quite unlikely to succeed, arbitrary and capricious means the states would need to show that the FCC ruling essentially no rational explanation before the courts will decide to overturn the FCC. To say this is an incredibly low standard is an understatement.

The Loss of Net Neutrality Has Damaged Consumers

While broadband providers touted the business advantages of removing net neutrality restrictions–creating jobs, lowering prices, and promoting increased investment in infrastructure–none of this has occurred. Comcast fired 500 employees right before Christmas, both Comcast and Dish Network increased their prices in the last few weeks, and the announced infrastructure investment for the next year is essentially the same as last year. All that the FCC’s net neutrality repeal has done is take away your consumer protections. The states are taking steps to bring those protections back. Any successes will be a long fought battle–we’ll have to wait and see if they end in victory.

Apple: Class Action Lawsuits Begin to Crop Up Over “Batterygate”

Tech giant apple has been in hot water over the couple weeks after the revelations of the dramatically named “Batterygate.” “Batterygate” is a term that has been used quite a bit recently to refer to Apple’s admission that, a little over a year ago, they released software updates which slowed down the processing speed of their iPhone 6, iPhone 6 Plus, iPhone 6S, iPhone 6S Plus, and iPhone SE models. In a more recent update, they did the same to the iPhone 7 and iPhone 7 Plus. These changes were made with no notice to public or mention in update notes and caused substantial slowdown for the devices. This admission has fed the belief that Apple intentionally slows down older phone models in order to push sales of their newer models–the iPhone 8 varieties and the new iPhone X.

Apple, however, has stated this is not the case and released an explanation. Apple says that the lithium-ion batteries in these models were becoming less capable of supplying the current energy demands of phones in cold conditions, at low charge, or even as they simply get older. This can cause phones to suddenly shut down, not hold a charge, or damage internal components. Apple says they intend to roll out similar slowdowns to more recent models as necessary.

This is a somewhat reasonable explanation, it does fix an issue caused by an older battery. However, it doesn’t explain why Apple didn’t inform their users about the issue. It also doesn’t explain why they didn’t tell users the slowdown issue and the issue behind releasing the slowdown updates could be solved by purchasing a new battery for just under $80–instead issuing replacement phones and pushing purchases on more recent models.

appleThese questions may have innocent answers. However, they’ve already given rise to at least two class action lawsuits over the issue. The first is a lawsuit including plaintiffs from Illinois, Ohio, Indiana, and North Carolina alleging fraud and deceptive business practices and the second is a lawsuit out of California accusing Apple of interfering with the use of a phone and breach of an implied contract. These lawsuits both revolve around Apple’s failure to tell its customers about the slowdown and allowing them to purchase expensive replacement phones instead of giving them the facts of the situation. Let’s take a look at them both, the law involved, and their chances.

Consumers are Suing Apple for Fraud

The fraud class action accuses Apple of intentionally concealing and obscuring why older phones were being slowed down as part of a scheme to sell more new phones. The lawsuit has some kinks to work out of it, it lists the non-existent iPhone 7s as one of the affected devices, but it does make some interesting allegations. They argue that the true purpose behind the slowdowns was to fraudulently induce customers to purchase more phones or else Apple would have told people that the phones were being slowed down and the issue could be fixed with a cheap–relative to purchasing a new iPhone–alternative by simply buying a new battery. This led to the plaintiffs in the lawsuit buying new phones when they otherwise would not have. The allegations here include fraudulent omission and deceptive practices both under the statutes of the plaintiffs’ home states and common law

Intentionally suppressing or omitting a fact, with the intent that others rely on that omission in making a purchase, is a fraudulent or deceptive business practice under both common law and under most state’s statutes on the issue. For example, if a used car salesman knows the car you’re about to buy has electrical issues which will expensive fix and make you not buy the car, but decides not to tell you this would generally be fraudulent omission. It is important, however, that the issue would actually make you not purchase the car. It is only an issue under the law if the fraudulent omission or statement actually impacts your decision whether or not to take an action.

Deceptive trade practices have a number of definitions depending on where you live. However, in general it makes it illegal to engage in behavior likely to deceive the public. This covers quite a broad swath of situations, from fraud to false advertising to misrepresentation and omission of material facts. Material facts are facts which, as we just discussed, impact the opinion of the public. There does not always have to be an actual person deceived to support this sort of claim, just be likely to deceive the public.

The class action’s case is based on the fact that Apple failed to tell the public that about the reasons behind, solutions to and very existence of the slowdown iOS updates as part of scheme of fraudulent omission and misrepresentation in order to persuade people to buy cell phones. They have a fairly good case that there was an omission here that changed whether or not somebody would have bought a phone. If the plaintiffs here had known about the possibility of just buying a new battery, they likely would not have bought a phone. However, fraud is a tricky case to plead and pursue. It usually needs more facts in the initial complaint than other claims would, something this case is a bit light on. They’ll also have trouble establishing that the intent behind the concealment of these facts was to push sales when Apple has a fairly reasonable argument to the contrary that it was just to preserve the life of these older phones.

Details of the California Class Action

The second lawsuit that has been brought to bear against Apple takes a different tact, alleging breach of implied contract and trespass to chattels. These claims essentially come down to an two arguments. First, there is an implied agreement when you purchase a phone that Apple won’t later take away some of the phone’s functionality. Second, by slowing down the phones Apple illegally interfered with the customers use and enjoyment of their property. This reduced the value and function of their phones, sometimes making them require a replacement or overpay to fix an issue Apple knew how to fix and knew couldn’t be fixed by what was paid for.

The first of these arguments, implied contract, is a particularly tricky one to win in the courts. If you sign a contract which has the requirements elements to be valid or reach an oral contract in a situation where it is valid you have an express contract. The vast majority of contracts out there are express contracts. However, in the absence of this, the courts sometimes (very rarely) find the existence of an implied contract as a matter of equity and fairness. They can be found based on a prior history of similar agreements, when somebody accepts something of value knowing payment would normally be expected, or in other situations where fairness would require a court to imply a contract to avoid the unjust enrichment of a party.

They come in two forms, implied in fact and implied in law. Implied in fact contracts are a contract implied from the conduct of the parties. For instance, if you ask for a certain number of apples from an apple supplier with no discussion of price and they send it the current price at the time you asked for them could be implied into the contract if the courts wanted. An implied in law contract, on the other hand, is a contract implied purely to avoid unfairness. For instance, if a painter came to the wrong house by accident and the owner said nothing and let him proceed to paint the house, the courts could make the owner pay for the paint job through an implied in law contract.

The argument here is essentially that by purchasing an iPhone, Apple and the plaintiffs entered an implied in fact contract that Apple would not intentionally interfere with the functionality of the phones they bought. There’s potentially something to this argument. However, the complaint is very thin on facts as to why this should be the case. There is obviously a common sense aspect that when you buy something, you expect the person you buy it from not to sabotage it. However, there needs to be more than just common sense here. This is especially true because the Apple terms and conditions, the agreements you click through prior to allowing an update, all will come into play for an argument that consumers know the functionality of their phones can change over time with updates. The argument is an uphill battle for sure, at the very least it will depend a great deal on how the judge on the case feels about the fairness of the issue.

The trespass to chattels, on the other hand, is much more straight forward. Trespass to chattels is a civil cause of action which alleges that somebody intentionally interfered with the use or enjoyment of your property without consent.  This is distinguished from the more serious claim of conversion in that conversion involves the full deprivation of another’s right to use or possess personal property. Think of it as the difference between taking your sandwich and eating it and taking your sandwich and burning the bread. In the conversion situation the sandwich is gone entirely, in the trespass to chattels situation you sandwich is made less appealing without your consent.

The argument here is that the plaintiffs never consented to having their phones slowed down. In fact, they weren’t consulted or even informed of the slowdown. The slowdown also certainly reduces the value and usefulness of these phones.  Apple did so intentionally, by their own admission they intend to continue to do so with other phones in the future. This is a claim with some merit, although damages will be fairly limited with such a claim. What’s more, it will face some challenges in terms of consent. Once again, the Apple terms and conditions likely permit them to make essentially any changes they like to your phone’s operating system. You also choose to update your iOS. The terms of these agreements will likely factor quite a bit into the success of these trespass to chattels claims. This being said, there’s a flip side to this argument in that Apple never revealed the slowdowns. This makes it nearly impossible to consent to the trespass unless the situation is covered in Apple terms and conditions.

Joining the Class Actions

These class action lawsuits are in very early stages and face a serious uphill battle. Their claims have some issues to them and they will have to survive the substantial legal resources of Apple. They will almost certainly face motions to dismiss and for summary judgment. They will need to get their class certified and more. However, there is at least some merit to their claims. The fact that Apple concealed these slowdowns for so long puts the situation in a particularly suspicious light when presented to the courts. What’s more, the sheer number of people affected will almost certainly number in the hundreds of thousands or millions in both cases. If you own or owned one of the iPhones affected and may have a claim similar to those in one of these class actions they are currently looking for people to add to the class. It may be worth your time to reach out to the attorneys involved.