The heart of the health care reform bill is the "individual mandate," the requirement that every person must either purchase health insurance or pay a tax. Low income persons are exempt from the requirement, and lower middle income persons will receive subsidies if they have to purchase insurance in the non-group market. Although the "individual mandate" has been the subject of much criticism recently from members of the Republican Party, there have been a flurry of recent articles suggesting that this was originally a Republican idea. I think it is more accurate to say that it was a bipartisan idea, but judge for yourself - the links are below.
Jonathan Adler at The Volokh Conspiracy posted an entry Monday entitled "Was the Individual Mandate a Republican Idea?" He noted that in 1993 Stuart Butler of the Heritage Foundation testified before Congress in favor of an individual mandate with government subsidies. At that time Butler stated:
Well, I got involved in a little brou-ha-ha over on Bob Dyer's column, and I thought I would bring it up over here. The issue is that the sports teams for Akron's East High School have traditionally been called "the Orientals." Born and raised in California, I have always considered that term somewhat offensive, so when Dyer
originally posted a short item about this in one of his columns, I emailed him an extensive response. Here's the original item:
How long is Akron's East High School going to insist on keeping that absurd nickname for its sports teams?To read more or comment...
Over the weekend President Obama made a number of recess appointments to federal office. Here is a CNN report about the appointments. Below the fold is a brief discussion about the constitutionality of recess appointments and a summary of recent legal scholarship on the issue.
On Saturday the President released a statement announcing that during the brief congressional recess he would be making a number of appointments to fill vacancies in the federal goverment. The opening paragraph of the President's statement says:
On April 8, President Barack Obama and Russian President Dmitry Medvedev will meet in Prague, capitol of the Czech Republic, to sign a new START treaty that will substantially reduce the numbers of warheads and delivery systems each country will maintain.
On March 26, the President announced that a final agreement had been reached with Russia to reduce warheads and delivery systems. Here is the White House statement describing the proposed treaty, and here is the readout of a telephone call between the Presidents of the two countries, the 14th direct meeting or phone call between them addressing START. The White House says that the treaty contains the following provisions:
The new and improved Supreme Court web site and more access to Federal Court documents
The United States Supreme Court web site underwent a badly needed facelift making it more user-friendly. 'The site continues to provide online access to the Court's slip opinions, orders, oral argument transcripts, schedules, Court rules, bar admission forms, and other familiar information. But it also has several new features, including enhanced search capabilities, an interactive argument calendar, improved graphics, and additional historic information.' Source.To read more or comment...
The violent threats and rhetoric in reaction to the enactment of the health care reform bill are nothing new. It is a familiar response by those who think they ought to have their way no matter the results of elections or votes in Congress. It is, at bottom, a rejection of democracy. Over time, however, Americans have grown proud of their democratic institutions and weary of vigilantism. A short history below.
1. Before the American Revolution, and in many places throughout the south up to the late 19th century, elections were little more than organized brawls. Crowds of partisans would storm election halls and physically prevent other voters from entering or beat them for daring to oppose the mob. There was no secret ballot. The "Australian system" of anonymous voting in private polling booths was not widely adopted until the 1880s. In the election of 1860, Lincoln received no votes in ten southern states.To read more or comment...
Yesterday fourteen state attorneys general filed lawsuits challenging the constitutionality of the health care bill.
Here is the complaint filed by thirteen Attorneys General led by Bill McColum of Florida, in Federal District Court in Florida, and here is a news story by William C. Flook of the Washington Examiner about the lawsuit filed by Virginia Attorney General Ken Cuccinelli.To read more or comment...
In the wake of the enactment of the Senate's version of health care reform, and as we await action by the Senate on the House's Reconciliation Act of 2010 making certain changes to the funding formulas, opposition to the bill shifts to the legal arena - is the Act constitutional? Specifically, is the individual mandate constitutional?
The constitutionality of the individual mandate has already been the subject of widespread discussion. Randy Barnett published a column in the Washington Post on Sunday discussing various arguments that might be made. Sandy Levinson posted an essay on the subject yesterday in Jack Balkin's blog Balkinization. Jack himself authored this analysis in the New England Journal of Medicine on January 13. And here is an ariticle by Ruth Marcus at Real Clear Politics posted November 25, 2009, in which she concludes that both the Commerce Clause and the Tax and Spending Clause confer authority upon Congress to require people to have health insurance.To read more or comment...
Today's post contains information about the President's Executive Order on abortion funding that was critical to the enactment of health care reform legislation.
On Saturday White House Communications Director Dan Pfeiffer released this statement saying that upon final passage of health care reform the President would issue an Executive Order instructing all government agencies and programs administering health care that they must continue to abide by the requirements of the Hyde Amendment - that is, that government funds are not to be used to pay for any abortions other than those that are the result of rape, incest, or that endanger the life of the mother. The proposed executive order (which is set forth in full at the end of this post) states: "The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges." It was this decision that convinced Rep. Bart Stupak and his allies to vote for health care reform.To read more or comment...
Here is a summary of the revenue effects of H.R. 4872, the Reconciliation Act of 2010, based upon an examination of the reports released Thursday by the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT).
To read more or comment...
...Why the government can conduct the Census
Arguments against answering the census questions are everywhere...the web, talk radio, maybe even people you know. Claims that the census is unconstitutional, the questions are illegal, or that the federal government is subverting the Constitution. Is this crazy talk?To read more or comment...
It all started when Ashby Jones opened her WSJ Law Blog post with this: "Cornell is the Lady Gaga of the law-school world. Both are white hot, but the explanations behind each's popularity don't don't fully add up." Then Above the Law's David Lat joined in with (among others): "If Cornell is Lady Gaga, maybe Harvard is Madonna older, wealthier, and who Cornell aspires to be." Leading to the obvious question--if Cornell is Lady Gaga, who is the UA School of Law? See my answer after the break.
You can play, too, in the comments.To read more or comment...
The University of Akron School of Law's Joseph G. Miller and William C. Becker Center for Professional Responsibility will offer its inaugural Journalism and the Law Lecture titled 'Covering the Roberts Court in the Obama Era: A Reporter's Reflections.' The lecture will be given by Adam Liptak, Supreme Court Correspondent and columnist for The New York Times. The lecture, which is free and open to the public, will be held Tuesday, April 6 at 4 p.m. at The Quaker Square Inn at The University of Akron, 135 South Broadway, Akron, Ohio. One hour of free CLE credit will be offered.
In his presentation, Liptak will discuss the Supreme Court in a time of rapid change. After a decade without new justices in the final years of the Rehnquist Court, the Roberts Court has welcomed three new justices and it may well see a fourth appointment in the near future. Liptak will also consider the leadership of Chief Justice John G. Roberts Jr., the impact of Justice Sonia Sotomayor and the implications for the Court of the fact that it has become, given Democratic control of Congress and the Presidency, the most conservative of the three branches of government.To read more or comment...
Get one barista's POV here. Also, the University of Cincinnati School of Law hosts a symposium entitled: The Globalization of Securities Regulation: Competition or Coordination?
Jeff Skilling, former Enron CEO, has challenged his conviction for fraud and taken his appeal to the Supreme Court of the United States, raising two constitutional issues. He contends that one of the laws under which he was convicted is unconstitutionally vague, and that his trial should have been moved out of Houston because of adverse pretrial publicity. In this post I set forth the facts of the case.
In their brief to the Supreme Court, federal prosecutors claim that Skilling lied to shareholders, federal regulators, and the investing public about Enron's finanacial condition:
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