The Mask Slips: Standing, the Affordable Care Act, and Hypocrisy in High Places

SHERRY F. COLB

Cornell law professor Sherry F. Colb considers one aspect of the oral argument in California v. Texas, the latest challenge to the Affordable Care Act to come before the U.S. Supreme Court. Specifically, Colb considers the way in which some of the Justices talked during the oral argument about the doctrine of judicial standing, and she calls out those Justices’ hypocrisy as to that issue.

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Fox v. Dakkota Integrated Systems, LLC

Docket: 20-2782

Opinion Date: November 17, 2020

Judge: Diane S. Sykes

Areas of Law: Civil Procedure, Labor & Employment Law

The Illinois Biometric Information Privacy Act regulates the collection, use, retention, disclosure, and dissemination of biometric identifiers (fingerprints, retina and iris scans, hand scans, and facial geometry). Fox's employer, Dakkota, required employees to clock in and out by scanning their hands on a biometric timekeeping device. Dakkota used third-party software to capture that data, which was stored in a third-party's database. Fox alleges that Dakkota did not obtain her informed written consent before collecting her biometric identifiers, unlawfully disclosed or disseminated her biometric data to third parties without her consent, failed to develop, publicly disclose, and implement a data-retention schedule and guidelines for the permanent destruction of its employees’ biometric identifiers, and failed to permanently destroy her biometric data when she left the company. Fox was represented by a union at Dakkota, The judge dismissed two counts as preempted by the Labor Management Relations Act, but remanded the section 15(a) claim to state court. The Seventh Circuit reversed the remand order. Fox’s section 15(a) claim does not allege a mere procedural failure to publicly disclose a data-retention policy but alleges a concrete and particularized invasion of her privacy interest in her biometric data stemming from Dakkota’s violation of its section 15(a) duties to develop, publicly disclose, and comply with data retention and destruction policies. Her allegations plead an injury in fact for purposes of Article III. The invasion of a legally protected privacy right, though intangible, is personal and real, not general and abstract.

United States v. Daoud

Dockets: 19-2174, 19-2185, 19-2186

Opinion Date: November 17, 2020

Judge: St. Eve

Areas of Law: Criminal Law

Daoud came to the FBI’s attention because of online activity that evinced a desire to engage in violent jihad. While communicating and meeting with undercover agents, Daoud sometimes wavered about killing people. Daoud planned a Chicago car bomb attack. Undercover agent, “Mudafar” described the bomb that he would supply and the mass carnage it would cause. Mudafar and Daoud met to implement the attack. Daoud, age 18, was arrested upon pressing the button and was charged with attempting to use a weapon of mass destruction and attempting to destroy a building used in interstate commerce with an explosive. While Daoud was in pretrial custody, he solicited the murder of the FBI agent (Mudafar). Daoud’s cellmate was paid to record conversations and instructed Daoud to make a phone call authorizing the killing, which Daoud did. Daoud was charged with soliciting a crime of violence, murder-for-hire, and obstruction of justice. Two years later, Daoud physically attacked another for drawing a picture of the Prophet Muhammad. Daoud was, again, charged. Daoud spent over 400 days in segregated housing during his pretrial incarceration, and Daoud witnessed his cellmate commit suicide. The cases were consolidated. Daoud was diagnosed with psychiatric disorders. With medication, Daoud’s condition improved; he was found competent to stand trial. Daoud pled guilty while maintaining his innocence. The advisory Guidelines range was life imprisonment; he was sentenced to 16 years' imprisonment. The Seventh Circuit vacated the sentence as substantively unreasonable. The court downplayed the extreme seriousness of Daoud’s offenses in conflict with the undisputed facts; failed to account for the need to protect the public from Daoud’s high risk of reoffending; improperly distinguished the sentences of similar offenders by relying on Daoud’s pretrial confinement; and premised its sentence on mitigating factors that could not bear the weight assigned to them.

United States v. Johnson

Docket: 19-2718

Opinion Date: November 17, 2020

Judge: St. Eve

Areas of Law: Criminal Law

Johnson, a “sovereign citizen,” participated in a bogus mortgage-elimination scheme. Charged with mail fraud, Johnson represented himself at a month-long jury trial, presenting nonsensical defenses. Johnson was capable of basic trial tasks. The Ninth Circuit affirmed his conviction, stating that Johnson was a “fool,” but not incompetent. While serving his 300-month sentence, Johnson filed false bankruptcy petitions. Charged with bankruptcy fraud, Johnson did not have counsel at his initial appearance and repeatedly insisted that he was not the defendant. The magistrate asked Johnson several questions to confirm his decision to proceed pro se. Johnson stated that his competency to represent himself had “already been established and affirmed on appeal.” The magistrate “strongly urge[d]” him to accept counsel but ultimately found that Johnson had knowingly and voluntarily waived his right to counsel. Johnson was again questioned and declined counsel during the final pretrial conference, Before and at trial, Johnson performed the necessary functions. Johnson’s arguments were gibberish, characterized by statements like, “the United States is a figment of our imagination.” Johnson accepted counsel for sentencing. The court applied a downward variance and sentenced Johnson, age 55, to 216 months’ imprisonment, consecutive to his current sentence. The Seventh Circuit affirmed. The district court’s colloquy with Johnson was lacking, but Johnson’s waiver of counsel was valid. Johnson’s history and his separate, more thorough colloquy with the magistrate indicate that Johnson’s decision to forgo counsel was not uninformed. The court also rejected Johnson’s challenge to the sentencing explanation.