Monday, July 23, 2012

Roller Coaster Town Comes to Chicago

Last Friday night, my wife and I and my longtime friend Joel were fortunate enough to see the great New York City troubadour Garland Jeffreys at the Square Roots festival in Chicago, sponsored by one of the outstanding musical institutions in America, the Old Town School of Folk Music.
Touring in support of his most recent album, The King of In Between (2011), Jeffreys has come to Chicago several times in the past few months – including two appearances at FitzGerald’s Night Club, which is right in our neighborhood – but the stars never quite aligned for us until last Friday. It was worth the wait.
Garland Jeffreys first scored a radio hit with “Wild In The Streets” from his self titled debut album in 1973, but he’s never achieved the household-name status of many of his East Coast peers (he counts Lou Reed and Bruce Springsteen among his friends). From his website:
After a string of records in the seventies including American Boy and Girl, One-Eyed Jack and Ghost Writer, the eighties brought the fiercely rocking Escape Artist, which yielded radio favorites “R.O.C.K.” and a cover of garage classic “96 Tears.”  After Guts for Love, a record chronicling the ups and downs of a long-term relationship, Jeffreys took a long hiatus before returning with Don’t Call Me Buckwheat, a complex and searingly honest exploration of being biracial in America.
Complex and searingly honest, indeed. Don’t Call Me Buckwheat (1992) included some of his best and most pointed songs about life as a mixed race singer-songwriter who came of age in pre-Civil Rights era America. The title track (which he played Friday night) puts it this way:
This is a song about words
The power of words
Well it all takes place
In a big city
With a very small mind …
Don’t Call Me Buckwheat also includes the hip-hop influenced “Hail, Hail Rock ’n Roll,” a history lesson all fans of modern music could stand to learn:

This, by the way, is what’s so great about Garland Jeffreys. Although he came from the late ’60s, early ’70s New York City rock ’n roll scene that produced artists like Lou Reed, he’s never limited himself to any one sound. His music is laced with blues, rock, reggae, jazz, soul, gospel, R & B … There really isn’t a more versatile artist in rock ’n roll.
The King of In Between, his most recent release, is somewhat more reflective than his earlier records. Many, if not most, of its tracks focus on aging and mortality – yeah, we’re all getting older – but without self-pity or cloying sentimentality. He’s still not afraid to confront racial politics in America, being the son of an African American father and Puerto Rican mother, and I love him for that, but he also seems comfortable in his own skin. The moment I heard the first track from The King of In Between, “Coney Island Winter,” I knew this album was special:

But here’s the thing. While Garland Jeffreys’ music often deals with heavy subjects, he’s anything but a downer. In concert, he’s entertaining as hell – funny, energetic, loud, fast, soulful … exactly what you want in a live performance. And more than that, he’s a genuinely nice guy. After playing nearly two hours Friday night – a long set for a street festival – he was kind enough to chat with us and take a few pictures:
 Forty years in rock ’n roll clearly hasn’t taken his humanity away.
Friday night’s show was a rousing and life-affirming trip through his diverse career, and it left me with only one regret: That I hadn’t managed to see him sooner.
Better late than never, I suppose.
In the meantime, here’s my current favorite song from The King Of In Between, “Roller Coaster Town,” another love song to the city of his birth:

“Every song I’ve ever written is about New York,” he says in the introduction to the song. And that may be. But if he ever chooses to relocate to Chicago, we’d love to have him.

Friday, July 20, 2012

Your Friday Clash Song: Don’t … Touch … That … Dial

“Capital Radio One,” originally on the hard-to-find Capital Radio EP (1977), subsequently re-recorded with new lyrics and released as “Capital Radio Two” on The Cost of Living EP (1979) and Super Black Market Clash (1994). And there’s a great live version on Live: From Here To Eternity (1999).
Given the horrible tragedy in Aurora, Colorado last night, I’m in no mood for politics or for rants in general. What I know is this. A six year old child – among many others – was shot and killed for attending a Batman movie. There’s no political message there. There’s just a dead six year old child. And unspeakable sadness.
So, rather than dwelling on what happened and why, I’m going to put on my headphones and listen to some pure punk from The Only Band That Mattered. Or Matters. It’s not that those aren’t important questions. Obviously, they are. But they simply can’t be answered in the immediate aftermath of a tragedy, and attempting to cobble together a meaningful analysis while we’re still not quite able to wrap our brains around the utter horribleness of the event will almost certainly obscure the truth.
Searching for answers should wait until we know the actual facts. And then, by all means, ask away. Analyze it to death. Just wait for the facts first.
In the meantime:
There’s a tower in the heart of London
With a radio station right at the top
They don’t make the city beat
They make all the action stop …
And just because I care, here’s a special bonus: A live recording of “Capital Radio One” and “Janie Jones” from 1977:

You’re welcome, America.
Your Friday Clash Song. Turn. It. Up.

Thursday, July 19, 2012

Breaking: Sen. Rand Paul Brings Dormant Blogger Back To Life!

So, yes, if you’ve stopped by lately you’ve noticed that I’ve been a bad blogger. Between trial work and other assorted upheavals (insert yada, yada, yada here) I just haven’t been able to devote much time to this endeavor.
But things have calmed down slightly, and my pal Bob of The Four Freedoms blog (@BobberDC on the Twitter Machine) reminded me today that Pauls are gonna Paul.
Meaning, in this case, Sen. Rand Paul’s gonna Paul.
Where “Paul,” as a verb, means “to act like a loony.”
To-wit: earlier this month, Sen. Paul introduced something he calls the “One Subject At A Time Act,” S.B. 3359, which is the handiwork of a right-leaning think tank called Downsize DC. On its face, S.B. 3359 seems like a reasonable idea. The gist of it is contained in Section 2, which provides:
            (a) One Subject– Each bill or joint resolution shall embrace no more than one subject.

(b) Subject in Title– The subject of a bill or joint resolution shall be clearly and descriptively expressed in the title.

(c) Appropriation Bills– An appropriations bill shall not contain any general legislation or change of existing law provision, the subject of which is not germane to the subject matter of each such appropriations bill; provided, however, that this section shall not be construed to prohibit any provision imposing limitations upon the expenditure of funds so appropriated.
Okay, fair enough. It would be nice if Congress tackled individual problems directly, addressing the merits of each issue head-on and without political game-playing. How many times have we seen one party or the other tack some odious provision onto an otherwise popular bill in order to make it politically untenable to pass, or to extort some compromise it could not otherwise get if it had to fight for each separate provision on its merits?
So it’s a laudable idea to get rid of that sort of political sleight of hand by forcing Congress to tackle major policy issues discretely. But Sen. Paul’s “One Subject At A Time Act” goes about in a predictably simplistic, poorly-thought-out way. Just what you might expect from a guy who still pines for high-school-debate-team-dream-girl Ayn Rand.
Specifically, take a look at one of the bill’s enforcement mechanisms contained in Section 3(e):
(e) Commencement of an Action– Any person aggrieved by the enforcement of, or attempt or threat of enforcement of, an Act passed without having complied with section 2 or this section, or any Member of Congress aggrieved by the failure of the House of Congress of which that individual is a member to comply with any requirement of those sections, shall, regardless of the amount in controversy, have a cause of action under sections 2201 and 2202 of title 28, United States Code, against the United States to seek appropriate relief, including an injunction against the enforcement of any law, the passage of which did not conform to section 2 or this section.
Note what this provision doesn’t say. It doesn’t say it’s limited to non-conforming acts passed subsequent to the adoption of the “One Subject At A Time Act.” Maybe that’s the intent of the drafters – that one can only sue to enjoin enforcement of a non-conforming act passed after the effective date of the one-subject law – but that’s not what it says.
Normally, a bill that intends only to affect actions subsequent to its enactment will expressly say so. In this case, if the bill stated that any act of Congress passed after the effective date of this bill has to comply with the one-subject rule, then the enforcement provision could, logically, only apply to subsequent bills. But there is no such language in Sen. Paul’s bill; so even if it was intended to apply only to subsequent legislation, it’s so inartfully drafted that it’s hard to avoid the reading it this way: The bill would allow a citizen or a member of Congress to sue to enjoin any statute currently on the books that does not comply with the single-subject rule, regardless of when that statute became law.
Of course, in a lawsuit challenging a multiple-subject statute enacted prior to the one-subject rule, I suspect the court would try to parse the language carefully to avoid that result. A judge could, I suppose, read into the language of Section 3(e) – i.e., “an Act passed without having complied with Section 2 of this section” – an implied temporal component: Only bills passed subsequent to the one-subject bill could have been passed in a way that complies, or fails to comply, with the one-subject bill, so only such a bill can be challenged under Section 3(e). But on its face, the bill simply does not say that.
And so, a judge could just as easily read the “One Subject At A Time Act” to mean what it says. There’s no real ambiguity here: Section 3(e) seems to give people the right to sue to enjoin the enforcement of any act of Congress that doesn’t meet the requirements of Section 2. And in the absence of ambiguity or uncertainty, a court ordinarily is not supposed to look beyond the plain language of a statute to ask what the drafters really meant.
So … imagine the resulting chaos. Thousands of lawsuits challenging virtually every statute now on the books, most of which would be vulnerable under Sen. Paul’s proposed bill. It’s mind-boggling.
It’s also, of course, an easy problem to fix. Just revise the language of S.B. 3359 to clarify that it only applies to subsequently enacted federal laws.
But that assumes you don’t want chaos. When it comes to Sen. Paul and his fellow Ayn Rand acolytes in Congress, I wouldn’t count on that.

Wednesday, July 4, 2012

“The Fireworks Are Hailin’ Over Little Eden Tonight …”

The official theme song of the holiday: “4th of July, Asbury Park (Sandy).” You’re welcome, America.
And, of course, our national anthem, courtesy of the Isley Brothers via Bruce Springsteen:

Happy Fourth of July, everybody.

Monday, July 2, 2012

Some More (Less Wordy) Thoughts About the Supreme Court’s ACA Decision

If you managed to wade all the way through yesterday’s post about National Federation of Independent Business v. Sebelius, No. 11-393 (slip op. June 28, 2012) – and my condolences if you did – you know I have a lot to say about Chief Justice Roberts’ opinion for the Court. And I haven’t even gotten to Justice Ginsberg’s concurring and dissenting opinion yet … although (spoiler alert) as you might imagine, I think her opinion should have won the day.
In any event, while I take issue with certain aspects of Justice Robert’s opinion, I have to admit I’m fascinated by it. I am particularly fascinated by the pains he took to avoid applying the Bill of Rights to the individual mandate, that thing the Tea Party told us was the very death knell of, you know, FREEDOM and LIBERTY.
Here’s what I mean. Justice Roberts, in his majority opinion, made it very clear that the Court was solely concerned with whether the challenged provisions of the ACA – the individual mandate and Medicaid expansion – were legitimate exercises of Congress’ enumerated powers under Article I. Writing for the Court, he explained:
Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative pro­hibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
National Federation of Independent Business v. Sebelius, slip op. at 3.
Moreover, Justice Roberts’ civics lesson continues, state governments, unlike the Federal government, are not limited to certain enumerated functions under the Constitution:
The same does not apply to the States, because the Con­stitution is not the source of their power. The Consti­tution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional au­thorization to act. The States thus can and do perform many of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of govern­ing, possessed by the States but not by the Federal Gov­ernment, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000).
Id., at 3-4.
So, why is this so fascinating? Well, I don’t take issue with the basic principles of federalism set out in the Chief Justice’s opinion, but it does lead to an odd result: While Justice Roberts thinks the individual mandate falls outside Congress’ powers under the Commerce Clause, he does not seem to think it violates the Bill of Rights.
In other words, Justice Roberts could have said that because the Commerce Clause permits Congress to regulate not only interstate commerce itself but anything affecting interstate commerce, and because the decision not to purchase health insurance clearly affects interstate commerce, the power to regulate that decision-making falls within the ambit of the commerce power – but, he could have said, forcing people to buy insurance violates, for example, the substantive liberty component of the Fifth Amendment’s Due Process Clause, or the Ninth Amendment’s catch-all provision (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). See, e.g., Griswold v. Connecticut, 381 U.S. 479, 492 (1965) (Goldberg, J., concurring)  (“The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments”).
But here’s the thing. Had the court so ruled, it would have meant that no government, state or federal, could compel individuals to engage in commerce, to purchase insurance or broccoli or any other good or service. That’s because substantive principles of due process apply to both state and federal governments (Griswold, for example, dealt with state law). And that would mean that the Court’s ACA decision would not only limit the power of the federal government over our day to day lives, but would limit the power of the states over our day to day lives as well.
Yet, for all the conservative weeping and gnashing of teeth over Justice Roberts’ majority opinion, I haven’t heard any of our friends on the right bemoan that particular missed opportunity.
Very interesting indeed.           
[Photo credit: Chief Justice John Roberts, by Ann Wilkins/U.S. Courts Circuit Executive’s Office/AP]

Sunday, July 1, 2012

The Tim Corrimal Show – Episode 214

So, we had a wonderful time recording Episode 214 of The Tim Corrimal Show this afternoon. Tim (@timcorrimal), Joe (@Marnus3) and I were joined by Cathy (@66Betty) of the Two Dozen Other Stupid Reasons blog for a discussion that focused primarily on the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, No. 11-393 (slip op. June 28, 2012), the Affordable Care Act case that came down last week.
If you’re reading along at home, you can download a .pdf file of the National Federation of Independent Business case here.
As I attempted to explain on the show – and apologies for the long-winded dissertation – the case involved various challenges (by states, individuals and business organizations) to two of the key provisions of the Affordable Care Act: (1) The so-called individual mandate contained in 26 U.S.C. § 5000A, which requires uninsured individuals to obtain health insurance by 2014 or, if they fail to do so, to remit a “shared responsibility payment” to the IRS on their tax returns; and (2) the ACA’s expansion of Medicaid coverage, and, more specifically, the provisions of 42 U.S.C. § 1396c which permit the Secretary of Health and Human Services to deny a state all federal Medicaid funds if it opts out of the ACA’s expanded coverage. To resolve constitutional challenges to those two provisions, the Court had to address these basic questions:
(1)            Are suits challenging the individual mandate barred by the Federal Anti-Injunction Act, 26 U. S. C. §7421(a), which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed”?
            (2)            If challenges to the individual mandate are not barred by the Anti-Injunction Act, is the individual mandate constitutional under either (a) the Commerce Clause, or (b) Congress’ taxing authority?
            (3)            Is the ACA’s Medicaid expansion, including the power granted to the Secretary of Health and Human Services to withhold all Medicaid funds from states that opt out of the expansion, a valid exercise of Congress’ powers under the Spending Clause?
Writing for the Court, Chief Justice Roberts first held that the Anti-Injunction Act did not bar suits challenging the individual mandate and the “shared responsibility payment” that would become due as a consequence of failing to obtain health insurance by 2014. As Chief Justice Roberts explained, under the Anti-Injunction Act no one can sue the federal government to enjoin the imposition or collection of a tax; rather, in order to challenge a tax in court the taxpayer must first pay the tax and then sue for a refund. Because the individual mandate and “shared responsibility payment” obligations do not go into effect until 2014, suits challenging the latter would be premature if the Anti-Injunction Act applied. But the Court noted that the issue is not whether the “shared responsibility payment” might be considered, in substance, a tax; instead, the issue is whether Congress intended the Anti-Injunction Act to apply to the “shared responsibility payment”:
The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” [26 U.S.C.] §7421(a) (emphasis added). Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” [26 U.S.C.] §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”
Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More [Law Center v. Obama], 651 F. 3d [529], at 551 [(CA6 2011)]. Where Congress uses certain language in one part of a statute and different language in another, it is generally pre­sumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).
The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text.
National Federation of Independent Business v. Sebelius, slip op. at 12-13. Accordingly, based upon the language of Section 5000A, the Court concluded that Congress did not intend the Anti-Injunction Act to apply.
Next, having determined that suits challenging the individual mandate could proceed despite the Anti-Injunction Act, Justice Roberts addressed the question whether the individual mandate itself passed muster under the Commerce Clause (“Congress shall have the Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”), and the Necessary and Proper Clause (“Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”), both of which are contained in Article I, section 8 of the U.S. Constitution.
Acknowledging the extraordinary breadth of the commerce power as interpreted by the Court over the past century –
We have recognized … that “[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,” but extends to activities that “have a substantial effect on interstate commerce”
– slip op. at 17, citing United States v. Darby, 312 U. S. 100, 118–119 (1941), Chief Justice Roberts nonetheless determined that the individual mandate itself – i.e., the statutory requirement that uninsured individuals purchase health insurance – could not be sustained under the Commerce Clause (or, by extension, the Necessary and Proper Clause), because the commerce power extends only to the regulation of activities affecting interstate commerce, not inactivity of any stripe … no matter how much the failure to act affects interstate commerce:
As expansive as our cases construing the scope of the com­merce power have been, they all have one thing in com­mon: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting them. …
The individual mandate, however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product , on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Con­gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do­main to congressional authority.
Slip op. at 19-20.
However, even though the Chief Justice believed that the individual mandate could not be sustained under the commerce power, he (and the majority of the Court) recognized that the sole means of enforcing the individual mandate is to require individuals who fail to obtain health insurance to remit to the IRS on their annual tax returns a “shared responsibility payment” based upon a percentage of their incomes (up to the amount a qualifying health insurance plan would cost). Thus, even though the mandate itself would be unconstitutional under the Commerce Clause, the Court had to ask whether it would be reasonable to interpret the enforcement mechanism as a tax, and, if so, whether it could therefore be upheld under Congress’ power “to lay and collect Taxes” under Article I, section 8:
The text of a statute can sometimes have more than one possible meaning. … And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.
The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Com­merce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a rea­sonable one.
Slip op. at 31-32.
The Court then determined that it was, in fact, reasonable to interpret Section 5000A – the individual mandate provisions – as a tax (despite having previously held that the Anti-Injunction Act does not apply), and, under that interpretation, that Section 5000A was within Congress’ power under the Tax Clause of Article I, Section 8. Reviewing Supreme Court precedent to determine whether the “shared responsibility payment” under Section 5000A was, in substance, a tax or a penalty, the Court stated:
The same analysis here suggests that the shared re­sponsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insur­ance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in [Bailey v.] Drexel Furniture [Co.,] 259 U. S. [20], at 37 [(1922)]. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most sugges­tive of a punitive sanction, such as criminal prosecution. See §5000A(g)(2). The reasons the Court in Drexel Furni­ture held that what was called a “tax” there was a penalty support the conclusion that what is called a “penalty” here may be viewed as a tax.
Slip op. at 35-36 (footnotes omitted).
Moreover, the fact that the “shared responsibility payment” was intended to influence behavior (i.e., to encourage the uninsured to purchase health insurance) was not enough to render that provision something other than a tax. Taxes, the Court noted, are often used to influence behavior and to raise revenue, and yet are regularly upheld under Congress’ taxing authority. Slip op. at 36-37.
Finally, Chief Justice Robert’s opinion addressed Medicaid expansion and the power granted to the Secretary of Health and Human Services to withhold the entirety of a state’s Medicaid funds – including funds for traditional Medicaid services as they existed prior to the ACA – if the state opts out of the expanded Medicaid plan under the ACA. Justice Roberts noted that Congress frequently conditions the states’ receipt of federal funds on the state taking actions that Congress could not, constitutionally, require them to take, and that, as a general principle, Article I, Section 8’s Spending Clause does not prohibit attaching those strings to federal dollars. However, Justice Roberts went on to say:
At the same time, our cases have recognized limits on Congress’s power under the Spending Clause to secure state compliance with federal objectives. “We have re­peatedly characterized . . . Spending Clause legislation as ‘much in the nature of a contract.’” Barnes v. Gorman, 536 U. S. 181, 186 (2002) (quoting Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981)). The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst, supra, at 17.
Slip op. at 46-47.
Ultimately, the Chief Justice concluded that 42 U.S.C. § 1396c violated this principle because the threat of withholding all Medicaid funds from states that opt out “is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”  Slip op. at 52. But the solution, according to the Chief Justice, was not to strike down Section 1396c altogether:
In light of the Court’s holding, the Secretary cannot apply §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.
That fully remedies the constitutional violation we have identified. The chapter of the United States Code that contains §1396c includes a severability clause confirming that we need go no further. That clause specifies that “[i]fany provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.” §1303. Today’s holding does not affect the continued ap­plication of §1396c to the existing Medicaid program. Nor does it affect the Secretary’s ability to withdraw funds pro­vided under the Affordable Care Act if a State that has chosen to participate in the expansion fails to comply with the requirements of that Act.
So, while the basic provisions of the ACA remain in tact, the Court severely restricted one of the primary ways in which the Act sought to encourage states to accept Medicaid expansion.
In any event, both the ACA itself and the Court’s opinion in National Federation of Independent Business v. Sebelius are complex and will, undoubtedly, lead to further discussion and analysis on the show. For now, I hope you enjoy the latest episode and I hope our discussion shed some light on the Court’s ruling.