Janice A. Oser, Esq.

Life is unfair, JFK said (at a press conference in March of 1962), and indeed there are injustices that we can do nothing to remedy. Where an injustice is conceivably rectifiable, we’ll say, “There oughtta be a law.” Writing a law, though, can be very, very difficult, and much of the time brings to bear another law, the law of unintended consequences.

A prime example of the difficulty of avoiding unintended and unwanted consequences in drafting a statute or rule is given by the efforts of both the previous and current administrations in Washington to enact a housing plan to alleviate the current housing foreclosure epidemic.

A plan that lessens the amount a distressed homeowner is obligated to pay on a mortgage, such as by subsidizing the interest rate or reducing the principal, elicits cries of “Foul!” by homeowners whose houses are “underwater,” worth less now than the outstanding amount of the loan, but who have kept current with their mortgage payments.

A special adviser for policy at the Federal Deposit Insurance Corporation (FDIC), which has created a loan modification program for borrowers at banks it has taken over, has said, as quoted in a recent New York Times article, “This is not about fairness. The goal is to keep people in their homes” (“Mortgage Plan May Irk Those It Doesn’t Help,” by David Streitfeld, October 31, 2008).

In the same article, however, a San Diego financial adviser, speaking about homeowners whose houses are underwater, is quoted as saying, “From a purely economic standpoint, there’s not a whole lot to be gained by staying.” And a president of a Connecticut financial firm is quoted to the effect that, if the government says it will redo the mortgage of people who can prove that they can’t afford the payments, people will try to find ways to qualify.

Some of the ways people may find to prove that they can’t afford their mortgage payments may be fraudulent, but fraud may be difficult to detect and prove. A program begun by the Federal Housing Administration, “Hope for Homeowners,” began on October 1. Under the program, lenders will refinance loans to 90 percent of a house’s current value, automatically giving the owner 10 percent equity. Borrowers will have to certify that they did not “intentionally” default.

The moral of this particular tale seems to be that when we say, “There oughtta be a law,” it would be an interesting exercise to try to draft one that would avoid the unintended consequence of exacerbating the problem (even more homeowners falling behind on their mortgage payments, perhaps, for example) or add to the unfairness of life to a politically unacceptable extent.

Ideally, our draft statute will also be clear and not ambiguous. Ambiguity in the wording of a statute is likely to have unintended consequences, assuming that the lawmakers did not deliberately make the wording ambiguous as a way of passing a political hot potato on to the courts. Presumably, that was not the intention of the framers of the Second Amendment to the U.S. Constitution, which says, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Just what the intention of the framers was, however, has been the subject of much debate.

The Amendment can be read in such a way that the phrase about a well-regulated militia limits the scope of the phrase about the right of the people to keep and bear arms—that is, the people have a constitutional right to own guns in connection with service in “a well-regulated militia.” Until recently, this was how most courts and legal commentators read the Amendment.

Last June, however, the U.S. Supreme Court, in a 5-4 decision, struck down a Washington, D.C. ban on handguns on the ground that the phrase in the Amendment about a well-regulated militia is a prefatory statement of purpose and it does not limit the scope of the “operative” clause, the operative clause being the one about the right of the people to keep and bear arms. Hence, the Second Amendment protects an individual’s right to own a gun for personal use. (The Court’s decision, however, does not appear to rule out the most common gun regulations.)

In retrospect, it would seem easy to draft a constitutional amendment that would make it unambiguously clear just which of these interpretations is intended. Or not.

Another case due to be heard by the Supreme Court turns on a similar problem of statutory interpretation. The statute in question, a provision of the U.S. Criminal Code, imposes a mandatory two-year prison term on any person who, during the commission of other specified crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

The question that has arisen in the case is whether the “knowingly” applies only to the transfer, possession or use of the means of identification, or whether it applies as well to the “means of identification of another person.” That is, whether the statute applies not only to those who set out to steal others’ identities, but also to those who buy fake documents containing names or numbers that happen to belong to actual individuals.

Or, as Adam Liptak put it in another article in the New York Times, “Is it identity theft to pick nine random numbers out of the air and submit them as a Social Security number if that number turns out to belong to a real person?" (“Justices Take Case on Illegal Workers and Penalties for Identity Theft,” October 21, 2008).

The issue frequently arises with illegal immigrants, who typically buy fake ID cards to show to employers. Some obtain cards with made-up names and numbers, while others obtain cards with information pertaining to actual individuals.

In the case to be heard by the Supreme Court, Ignacio Flores-Figueroa, a Mexican citizen, is appealing his conviction under the statute in question for using a counterfeit Social Security card with his name and a false Social Security number that he did not know belonged to a real person. The Court heard arguments on February 25. Stay tuned.