#unconstitutional

One of the things the Constitution promises us is that we won’t be deprived of life, liberty, or property without due process.  It’s in the fifth and fourteenth amendments of the Constitution of the United States.  But I’ve actually screwed that up in the very same way that many people misunderstand it.  The Constitution only guarantees that the government won’t deprive us of these things without due process.  The Constitution doesn’t really do anything to regulate what private parties do between themselves. The Constitution only regulates the government.  In fact the Constitution, in spirit, makes sure to stay out of what we do amongst ourselves, because to do otherwise would be government interference.

For example, if I rent an apartment and I have to put up a security deposit of three months rent, this is still in effect my property.  However if I trash the apartment in a non-stop festival of drunken parties with hookers and blow, when I leave the landlord simply keeps the deposit.  There’s no “due process.”  I’m simply deprived of my property immediately.  I still have some redress – I can bring a civil suit.  But the initial loss of property happened with no hearing or anything.  Perhaps our rental contract specified a process.  But this isn’t a government affair, it’s just a private agreement we might make.  Two private individuals enter into a contract, and the Constitution has nothing to do with it.

When Lance became a professional cyclist, he signed a contract, year after year, with the UCI.  This contract explicitly stated that Lance was agreeing to the rules of the UCI, and of WADA, and of USADA, including all their procedures.  Blood testing and hearings and arbitration, Lance agreed to all of this in his contract.

But isn’t the USADA part of the government?  The short answer is no.  The long answer is also no, except that the answer is longer.  They are a non-profit, non-governmental organization.  They are not under control of any branch of the government.  Well, if that’s true why would Lance claim that his treatment is #unconstitutional?

My official statement re: @usantidoping‘s latest witch hunt. bit.ly/MNH6X7 #unconstitutional

— Lance Armstrong (@lancearmstrong) June 13, 2012

There is legal precedent in this country that if any organization is fulfilling a role of the government, then it is a “state actor,” i.e., acting on behalf of the state, and therefore would be subject to rules of the government, i.e., the Constitution.  So could USADA be a state actor?

First, let’s dispense with the money thing.  The majority of USADA’s funding comes from the government.  This does not make them a state actor any more than people doing scientific research or making artwork with government funding (e.g., grants) are state actors.  None of these individuals is doing a job that’s normally a role of the government, like making laws or enforcing laws.

And this is a critical part of the definition of a state actor:  they have to be handling a function of the government.  Well, isn’t anti-doping a function of the government?  It turns out that no, it isn’t.  While yes, the government is helping fund anti-doping activities, it’s not their function, just like in the case of the scientist and the artist.  The government is doing it to be friendly (don’t tell the Libertarians).  The simplest reason why anti-doping isn’t a government function is that we have no laws against doping in this country.

You might find this surprising, but it’s actually not illegal to load up on HGH and testosterone, and to take your blood out and then put it back in.

So why is Lance in trouble?  Again, it’s because by doping, he violated his contract with the UCI.  Well what about the federal case?  That was a fraud case.  Fraud IS a crime, particularly fraudulent use of federal money (and the United States Postal Service, as sponsor of the pro cycling team, was giving them federal funds).

But it sure seems like USADA is performing a government function, doesn’t it?  They’re investigating alongside the federal government and having hearings and taking away property, right?  Yes.  But an insurance company will also use investigators that work closely with the police, and they have hearings and arbitrations and they can have a big impact on your property.  And yet none of us thinks that insurance companies are state actors.  They’re just executing the contract they have with you, the idiot that drove your car through a mall and then lied to them about it.

The crux of the matter is that there is no law on the books that USADA is enforcing.  They are not performing any function of the government.

Being funded by the government, and working with people who are in the government, and having a hearing process that’s similar to the one the government has – none of these things even comes close to making USADA a “state actor.”

But isn’t there a treaty?  Yes, there is the UNESCO International Convention against Doping in Sport.  Well doesn’t THAT make this a government function? After all according to our constitution, treaties made by the executive branch have the force of law.

All true.  But first, did you know that UNESCO stands for United Nations Educational, Scientific, and Cultural Organization?  It falls under the category of “friendly” things the U.S. government does as opposed to their mandated function.  Of course, in countries where doping is actually illegal (like France), the UNESCO treaty does have more weight.

However the real issue is that the treaty was written fairly loosely, and on purpose.  Here’s what the UNESCO web site has to say in describing this convention:

There is a degree of flexibility as to how governments can give effect to the Convention, either by way of legislation, regulation, policies or administrative practices. However, signatory governments (States Parties) are required to take specific action to…” [blah blah blah, read the rest yourself ]

 

In other words, the United States has the option of fulfilling part of its obligations under this treaty by passing laws that make doping illegal.  But they have other options too, and they chose to merely fund a private organization that did what was needed.  Why did the treaty leave things so loose?  Because every country is different.

For example, in this country, if we could only fulfill the treaty by making it a function of the government, then anti-doping would be royally screwed.  Because really, the WADA and USADA codes would NOT be constitutional if it were the government doing it.  Every anti-doping case would be subject to endless challenges in court.  In short, we would not be able to fulfill our obligations under the treaty at all if we made anti-doping a function of the government.

Read that last sentence again, because it’s kind of important.  If USADA were declared a state actor, our ability to fulfill our treaty obligations would collapse.  So while you want to argue that the treaty means USADA is a state actor, it actually means the complete opposite.  The fulfillment of the treaty in this country effectively requires that USADA is NOT a state actor.  And actually if Lance successfully managed to get USADA to be declared a state actor, and WADA could no longer sanction athletes in the United States, we’d probably not be invited to the Olympics anymore.

Way to go Lance.  You’re my hero.

But wait, didn’t I just say that the WADA and USADA codes are unconstitutional?  No, I said they would be if it were the government doing them.  Just like if my landlord were a state actor, the common practice of handling security deposits would be unconstitutional.  But it’s NOT #unconstitutional.

This is not high-end legal stuff, this is basic civics.  Every competent lawyer knows this forwards and backwards.  Lance’s lawyers, Fabiani and Luskin, both surely know this.

So what’s going on?  They are lawyers, but that’s not their job.  Their job is to be PR specialists.  So they tell Lance to toss around terms like “due process” and “unconstitutional,” not because there’s any truth to them at all, but because on the whole they think most people are too stupid to be able to tell the difference.

And this is the frustration that we have with Lance’s defense.  He’s basically lying.  He’s calling things unconstitutional, when his lawyers must know full well they’re not.  He’s claiming he never agreed to the USADA rules, when his contract clearly says he did.  He’s lying to all of us and hoping we won’t notice.  The particularly scary part is that he and his lawyers are lying to the courts.  I wonder if the honorable Sam Sparks will notice?

Sadly, the vast majority of Lance fans haven’t noticed. 

* * * * *

@sarcastitom is the Twitter handle of one of those “nom de plume” idiots sitting around on his arse and figuring out the stuff that the high-priced bone idlers can’t.