Here is a summary of Judge Graham's dissenting opinion from the decision of the Sixth Circuit in Obama v. Thomas More Law Center. Judge Graham would strike down the individual mandate of the PPACA as unconstitutional.
Judge James Graham, a District Court judge sitting by assignment on the Sixth Circuit Court of Appeals, dissented from the decision of the court in Obama v. Thomas More Law Center. He concluded that Congress lacks the authority under the Commerce Clause to enact the individual mandate contained in the Patient Protection and Affordable Care Act.To read more or comment...
Health Care Financing Reform (133): Judge Sutton's Separate Concurring Opinion in Obama v. Thomas More Law Center
Judge Jeffrey Sutton concurred in the judgment of the Sixth Circuit that the Patient Protection and Affordable Care Act is constitutional on its face. However, he did not join Judge Martin's opinion upholding the law, and he left open the door to future as-applied challenges to the individual mandate.
Judge Sutton reached the conclusion that the individual mandate of the Affordable Care Act is constitutional for many of the same reasons expressed by Judge Martin, as described in the previous post. For example, Judge Sutton expressly finds that the market that is regulated by the PPACA substantially affects interstate commerce:
Yesterday's post announced the decision of the Sixth Circuit in Obama v. Thomas More Law Center. Judge Boyce Martin's opinion upholding the law tracks the federal government's legal arguments in support of the constitutionality of the Patient Protection and Affordable Care Act.
Judge Martin's opinion contains three principal propositions:
By a vote of 2-1 the Sixth Circuit has upheld the Patient Protection and Affordable Care Act.
A three judge panel of the United States Court of Appeals for the Sixth Circuit has rendered its decision in Obama v. Thomas More Law Center. On the central question presented by the case - the constitutionality of the Affordable Care Act under the Commerce Clause - each of the judges wrote separate opinions. Two of the judges - Judge Boyce F. Martin, and Judge Jeffrey S. Sutton, ruled in favor of the law. Judge Martin simply found that Congress has the authority under the Constitution to enact this law. Judge Sutton found that while the Act is constitutional on its face, in future cases it might be found unconstitutional as applied to certain individuals. Judge James Graham, a district court judge sitting by assignment, dissented and would have found the law unconstitutional in all of its applications.To read more or comment...
Yesterday the Supreme Court released its decision in Brown v. Entertainment Merchants Association. The Court struck down a California law that made it illegal for merchants to sell violent video games to children. The Court found that this law violates the First Amendment.
Justice Scalia authored the decision for the Court. He was joined by four other justices: Kagan, Sotomayor, Ginsburg, and Kennedy. Justice Scalia relied primarily upon the decision of the Court last year in United States v. Stevens, where the Court struck down a federal law prohibiting the creation or dissemination of recordings of animal cruelty. The Court in that case had found:
Now that New York has legalized same-sex marriage for residents and non-residents alike, the political and legal landscape for same-sex marriage has been dramatically altered.
Sheer numbers - New York has nineteen million residents. More than ten percent of Americans now live in jurisdictions that recognize same-sex marriage. If California, where a court decision striking down Proposition 8 is on appeal, is added to the list, that number jumps to over twenty percent.To read more or comment...
Last night New York State Governor Cuomo announced the passage of the Marriage Equality Act and signed it into law. This post discusses the religious exemptions contained in the new law.
The new statute clearly exempts clergy from having to perform same-sex marriages and religious institutions from having to host same-sex wedding ceremonies. The new law states, in relevant part:
Moments ago the New York State Senate, by a vote of 33-29, approved a statute recognizing same-sex marriage.
In 2006 in the case of Hernandez v. Robles the New York State Court of Appeals ruled that there is not a right to same-sex marriage under the Constitution of the State of New York. Today the New York State legislature adopted a statute recognizing the right of gay and lesbian couples to marry. New York is the second state (after Vermont) to legislatively adopt same-sex marriage, and the sixth state to do so either by statute or court decision. The matter is still unresolved in California where the constitutionality of Proposition 8 is currently on appeal.To read more or comment...
The Supreme Court has issued its decision in Sorrell v. IMS Health, Inc. The most significant aspect of this case is that the Court, by a vote of 6-3, recognizes that business enterprises have a First Amendment right to sell and purchase information generated by commercial transactions. This case extends and expands the recent trend finding that privacy rights have to yield to freedom of expression. In Bartnicki v. Vopper (2001) the Supreme Court ruled that a radio talk-show host had a constitutional right to broadcast an illegally recorded cell phone conversation. Earlier this year in Snyder v. Phelps (2011) the Court found that the Westboro Baptist Church had a constitutional right to mount a protest at the funeral of a soldier killed in combat, despite the agony the protest caused the soldier's family. In both cases the Court found that the interest of the public in receiving information about matters of public interest trumps the privacy interests of private citizens.
The Sorrell case takes this principle one giant step further. In this case the State of Vermont made it illegal for pharmacies to share certain information for marketing purposes. Specifically, pharmacies were not permitted to tell pharmaceutical companies about the prescribing habits of physicians. Pharmaceutical companies desire this information to enable them to encourage physicians to change their prescription tendencies, and specifically to expand their sales of brand-name drugs. The state prohibited the sale of this information both to protect "privacy" and to discourage the marketing of brand-name drugs.To read more or comment...
Former Congressman Rick Renzi (R-AZ) is accused of demanding a bribe in return for a promise of legislative action. He claims that his conduct is protected by the Speech and Debate Clause of the Constitution; moreover, he claims that, in the course of its investigation, the government may not even discover any materials that relate to his conduct as a Congressman. The Ninth Circuit has issued a ruling rejecting his claims. The Court of Appeals finds that his conduct in this case does not constitute a legislative act, and that the Speech and Debate Clause prohibits the use of legislative materials at a trial for corruption, but does not prohibit the discovery or disclosure of such materials.
Article I, Section 6, Clause 1 of the Constitution provides:
On Monday the Supreme Court released its decision in American Electric Power Co. v. Connecticut. The Court decided nothing of constitutional importance but it did clarify one point of federal environmental law.
In this case several states sued out-of-state power companies for the damages caused by climate change as a result of the greenhouse gases emitted by those industries. They brought suit not under the Clean Air Act but rather under the common law - the federal common law of interstate nuisance and state tort law.To read more or comment...
The federal Food and Drug Administration has designed nine new warning labels for cigarette packages and advertisements depicting graphic color images of persons suffering the effects of smoking, including a close-up of cancerous mouth sores, a man smoking through a tracheotomy, a mother blowing smoke at her baby, and a corpse. Is it constitutional under the First Amendment for the government to compel manufacturers and advertisers to display these images?
The F.D.A. has announced that it has selected the new warnings that will appear next year on packaging and advertisements for cigarettes. The F.D.A. website states:
On June 13 the Supreme Court called it a tie in Flores-Villar v. United States.
In this case the Supreme Court considered the constitutionality of a federal law that makes it more difficult for children born abroad to claim American citizenship upon birth if their father is an American than it is if their mother is American. The law requires fathers to have continuously resided for in the United States for five years after the age of fourteen before the child's birth for their foreign-born children to be considered American citizens, but American mothers need only have resided in the United States for one year prior to the child's birth. The Supreme Court had previously upheld even more onerous restrictions on the foreign-born children of American fathers in Nguyen v. INS (2001).To read more or comment...
Each year in my first-year Property class, I hold a poetry contest on the last day of class. The assignment is to write a poem that captures the year in Property. This year, I promised to publish the winning poem on this blog. Here it is:
Several Akron Law students have received recent recognition for their pro bono work in the community. Read the story here .
Akron Law is committed to community service and pro bono, which is a requirement for graduation. Under the terms of this requirement, Akron Law students must complete a minimum of 30 hours of community service prior to graduation. Of these 30 hours, at least 10 must be pro bono and five must be focused on serving those of limited financial means. The Akron Law faculty and administration hopes that this requirement will not only impact current students, but will also foster a spirit of service in Akron Law graduates as they move on to the practice of law. It is the duty and privilege of Akron Law, its students, and alumni to strive to better the communities that they live/work in.To read more or comment...
President Obama has responded to Speaker Boehner's request with a letter regarding the war powers resolution and a detailed report on military action in Libya. The bottom line: the President believes that the action in Libya is not covered by the War Powers Act, but he supports adoption of the bipartisan resolution authorizing military force in Libya drafted in the Senate.
Yesterday the President released this Letter from the President on the War Powers Resolution summarizing U.S. military action around the world. With respect to Libya the letter states:
House Speaker John Boehner's Letter to President Barack Obama on Libya, and the Memo From the Office of Legal Counsel
Speaker Boehner has sent a letter to President Obama regarding the legality of our military action in Libya under the Constitution and the War Powers Act. Speaker Boehner does not appear to oppose the military involvement so much as he desires to weaken or eliminate the War Powers Act.
Here is the letter that the Speaker sent the President:
I plan on presenting a very rough draft of my latest project, "The Silent Role of Corporate Theory in the Supreme Court's Campaign Finance Cases." You can find more information here.To read more or comment...
The single greatest unifying theme in American constitutional history has been the struggle to fully recognize the political equality of every human being. It is the highest manifestation of the principle "all men are created equal." Political gerrymandering, just like dozens of other discriminatory electoral devices, tends to destroy that principle.
2012 may not bring the apocalypse, but as the first election cycle after the decennial census it is marked by wholesale political gerrymandering. Here are some reports from around the country:
The Eleventh Circuit will hear oral argument in Florida v. United States Department of Health and Human Services this morning to consider the constitutionality of the Affordable Care Act.
Matthew Bigg of Reuters posted this article about today's hearing before the Eleventh Circuit Court of Appeals. He reports that the case will be heard by Chief Judge Joel Dubina, Judge Frank Hull and Judge Stanley Marcus. Bigg states:
The most stimulating part of my life comes from teaching law and debating controversial legal issues. The hardest and most intellectually challenging endeavor I engage in is researching difficult questions of law and publishing books and articles. The most emotionally satisfying experiences I have outside my family life are in coaching special needs sports.
I began working in special education at the age of 19 at the Benhaven School in New Haven, Connecticut, back in 1969. I later went to law school and became a trial lawyer and, yet later, a law professor. When our oldest son was born in 1980 with a genetic condition that would cause substantial developmental delays I began to put the training and experience I had gained at Benhaven to use in our home. My wife and I extended our efforts to include others as well. Beginning at age 3 we organized a soccer program for our son and his classmates. This was before he could walk! We held him and helped him swing his legs to kick the ball into the goal. Over the years we organized and coached bowling, softball, and basketball programs. We always kept the primary focus of our programs on socialization, trying hard, good sportsmanship ... and snacks! Today we run one basketball program and help coach other programs run by community recreation centers. Many parents volunteer their time and we are helped as well by a number of students from John Carroll University under the leadership of Trace Patterson, the coordinator of the service program at that school.To read more or comment...
Health Care Financing Reform (130): Oral Argument Before the Sixth Circuit in Thomas More Law Center v. Obama
The Sixth Circuit heard oral argument in Thomas More Law Center v. Obama yesterday on the constitutionality of the Patient Protection and Affordable Care Act.
Attorney Robert Muise argued on behalf of the Thomas More Law Center and Solicitor General Neal Katyal argued on behalf of the federal government. The three-judge panel included Circuit Judges Boyce F. Martin, Jr., and Jeffrey S. Sutton, and United States District Judge James L. Graham, sitting by designation. The audio recording of the argument is available here.To read more or comment...
Medicare is not sustainable, due to spiraling health care costs. Republicans successfully bashed Democrats last fall over the cost control measures in the Affordable Care Act (or "Obamacare," if you prefer); Democrats are successfully bashing Republicans right now over the voucher approach in the Ryan budget proposal. Neither is particularly responsible, in my view, nor unexpected. I defer to Professor Huhn on the details of these approaches. But today I saw something that helped me think about the problem. It was this entry in Ezra Klein's column. It turns out that we're spending $3 billion a year on a common and popular surgical procedure that provides no benefit over a placebo. Should Medicare pay for it? Should your insurance company? If not, would that be rationing?
Democrats tend to prefer regulatory solutions--thus ACA includes a panel of experts to assess the efficiency of various medical treatments and make recommendations. If you fear regulation, you suspect that this panel will eventually abuse its power, leading to rationing.To read more or comment...
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