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On Liberty: Kennedy and Verrilli in Oral Argument in Health Care Case

By Wilson Huhn Published: March 29, 2012

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

The debate over health care reform has long centered over the concept of individual liberty. The opponents of the law contend that the individual mandate violates the liberty of the individual to decide for himself or herself whether or not to purchase health insurance.

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Oral Argument on the Individual Mandate: Justice Kennedy's Questions

By Wilson Huhn Published: March 27, 2012

In this post I set forth all of the questions that Justice Kennedy asked the three attorneys at oral argument today in the health care case. Evaluate for yourself which way this "swing justice" is tending.

As we all know, Justice Kennedy is the swing justice; as he goes, so goes the Court. During today's oral argument in the health care case he asked tough questions of all three attorneys: Solicitor General Donald Verrilli, Attorney Paul Clement on behalf of the states challenging the individual mandate, and Michael Carvin on behalf of the individual plaintiffs.

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2011-2012 Supreme Court Term: Oral Argument by Amicus Curiae on the Anti-Injunction Act

By Wilson Huhn Published: March 26, 2012

The Supreme Court heard oral argument today on the issue of whether the Anti-Injunction Act applies to the individual mandate of the Affordable Care Act.  The transcript of oral argument is available here.  The bottom line is that it looks like the Supreme Court will proceed to the merits and decide whether the individual mandate of the Affordable Care Act is constitutional.

Several news outlets are reporting that, from what the justices said during oral argument, the Court is likely to find that the Anti-Injunction Act does not apply.  See Jennifer Haberkorn, Kate Nocera, Jason Millman, Political Pro, Court watchers: SCOTUS to blow past the AIA; Lee Ross, Fox News, Supreme Court Signals It Won't Punt on ObamaCare Decision.

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Are Listeners' Rights Absolute Under the First Amendment?

By Stefan Published: March 24, 2012

Some thoughts on that here.

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The "Stand Your Ground" Statute: Not a Criminal Law But a Political Statement

By Wilson Huhn Published: March 24, 2012

I don't wish to comment specifically on the killing of Trayvon Martin until the investigation has been completed.  It now appears that this matter has been turned over to capable state and federal investigators.  Once all the facts are established there will be time to express opinions about that specific case.  However, the state statute that local police relied upon in refusing to make an arrest should be examined.  The law is deeply flawed and should be repealed.

The statute that Sanford, Florida, police invoked as justification for the killing of Trayvon Martin was enacted by the Florida legislature in 2005.  This NRA-sponsored law permits people to "shoot first" if they are afraid of someone in the streets.  At the time the opponents of the law warned that it would provoke more violence.  See Katie Sanders, Tampa Bay Times, Democrats warned about 'stand your ground' in 2005.  They were right.  Since the enactment of the law justifications for these kinds of killings are up nearly three-fold in Florida.  See CBS Miami, Deaths Nearly Triple Since 'Stand Your Ground' Enacted.  Now congressional lawmakers want to extend this law to the entire country.  Bad idea.  We don't need a law that excuses "human hunting."

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2011-2012 Supreme Court Term: Decision in Coleman v. Court of Appeals of Maryland

By Wilson Huhn Published: March 21, 2012

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.

This is another in the series of 11th Amendment cases decided by the Supreme Court in recent years. Essentially, the rule is that if Congress enacts a law pursuant to the Commerce Clause then it may not abrogate state sovereign immunity; it may not empower a person to sue a state government for money damages. However, if Congress enacts a law pursuant to Section 5 of the 14th Amendment, then it may abrogate state sovereign immunity and permit a plaintiff to sue a state for money damages. The reasoning is that when the Constitution was adopted Congress lacked the power to force the states to pay money damages to individuals, but when the 14th Amendment was ratified in 1868, that Amendment expressly provides that "No state shall" deny any person the equal protection of the laws and it authorizes Congress to enforce that provision.

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Health Insurers' Position on the Individual Mandate

By Wilson Huhn Published: March 20, 2012

In the debate over the constitutionality of the federal health care reform law, health insurance companies have maintained a low profile.  The individual mandate was their idea; they wish that the mandate was stronger than it is; and now they are signalling that if the individual mandate is struck down by the Supreme Court, they can not and will not go along with the other insurance reforms in the PPACA.

The health insurance companies and the principal trade group that speaks for them, AHIP (America's Health Insurance Plans), have not explicitly supported the constitutionality of the individual mandate before the Supreme Court.  From a policy standpoint that is inexplicable. In 2008 the insurance industry embraced the concept of achieving universal heath care coverage through the private insurance market, and proposed that the law should require everybody to have health insurance. In its December, 2008, report entitled 'Now is the Time for Health Care Reform: A Proposal to Achieve Universal Coverage, Affordability, Quality Improvement and Market Reform,' the AHIP Board of Directors took a courageous position:

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IP Symposium Live on Twitter

By Diana Published: March 19, 2012

The 14th Annual Richard C. Sughrue Symposium on Intellectual Property Law and Policy begins in one hour! David Kappos, director of the USPTO will discuss the America Invents Act, the biggest patent law reform since 1836, during the keynote address at 12:45. Follow the whole event live on Twitter  #akronlawip

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Prominent Supporters of Terrorist Organization MEK May Not Be Protected by First Amendment

By Wilson Huhn Published: March 16, 2012

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the First Amendment.

The MEK, known in English as the "People's Mujahadeen of Iran," is a large military organization that has shifted its ideology and allegiance many times over the years. Before 1979 the organization mounted many attacks against westerners in Iran and assassinated several Americans. In 1979 it supported taking the American diplomats in Teheran hostage. After the Iranian Revolution the MEK began fighting the new Iranian leadership; it found refuge in Iraq and fought alongside Saddam Hussein against both Iran and Iraq's own Kurdish population. Over the years the MEK has been accused of numerous war crimes and human rights violations. In 1997 the State Department added the MEK to the list of designated terrorist organizations. Recently the group has been implicated in the assassination of Iranian scientists.

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Director of U.S. Patent and Trademark Office to be Keynote Speaker at 14th Annual Intellectual Property Law Symposium on March 19

By Diana Published: March 15, 2012

The most significant changes to U.S. patent law since the Patent Act of 1836 were enacted into law last October with the new 'America Invents Act (AIA).' The impact of those changes affects all businesses ' large and small ' and overall American innovation and research commercialization.

David J. Kappos, the U.S. Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, will be the keynote speaker at the 14th annual Richard C. Sughrue Symposium on Intellectual Property Law and Policy on Monday, March 19 from 8 a.m. to 5:30 p.m. The symposium will be held at the John S. Knight Center in Akron and is co-sponsored by The University of Akron School of Law and Sughrue Mion PLLC law firm.

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Rush Limbaugh, Hate Speech, and the First Amendment

By Wilson Huhn Published: March 15, 2012

Rush Limbaugh has a long history of demeaning people based upon their gender, race, religion, and sexual orientation. His record is a perfect demonstration of the fact that in the context of a public address hate speech is protected by the First Amendment. That does not mean that other people have to put up with it.

The Constitution protects many categories of speech that other people find offensive. People have the right to distribute, read, and view pornography. People have the right to burn the American flag in protest. People have the right to advocate that there be a Communist revolution. People have the right to praise Islamic terrorists.

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Health Care Briefs: Amicus Briefs Attempting to Protect Specific Provisions of the Affordable Care Act

By Wilson Huhn Published: March 14, 2012

In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court to spare specific provisions of the Act.  The number and significance of these provisions remind us how vast and encompassing this law is, and how unlikely it is that the Supreme Court will declare it unconstitutional.

The AARP and several other organizations who advocate on behalf of Medicare not surprisingly contend in their brief that certain provisions of the law strengthening Medicare should be insulated from being struck down with the individual mandate.  The provisions they hope to keep afloat include the elimination of the "donut hole" (a deductible) for prescription drugs; access to preventive health services; access to chemotherapy and dialysis; incentives to improve quality of care; provisions that would permit persons receiving long-term care to remain in the community and avoid institutionalization; provisions improving coordination of services; and provisions aimed at preventing neglect and abuse of the elderly.

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Health Care Briefs: Which Side Are You On?, continued. Et tu, Chamber of Commerce?

By Wilson Huhn Published: March 13, 2012

The amicus brief filed by the United States Chamber of Commerce on the issue of severability actually presents a highly persuasive argument in support of the constitutionality of the individual mandate in the Affordable Care Act.

The Chamber of Commerce, like several other business interests, oppose the Affordable Care Act not so much because they dislike the individual mandate but because they oppose the employer mandate.  In its brief to the Supreme Court arguing against severability, however, the Chamber of Commerce unintentionally advances powerful arguments that will persuade the Supreme Court to uphold the constitutionality of the individual mandate, and to do so right now.

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Health Care Briefs: The Single Payer Action Brief: Which Side Are You On?

By Wilson Huhn Published: March 12, 2012

Some amicus briefs remind me of that old Pete Seeger song, Which Side Are You On?

Interested Americans have filed dozens of amicus briefs in the Supreme Court of the United States arguing for and against the constitutionality of the Affordable Care Act.  There are a number of things to take into account in deciding whether to file an amicus brief.  One consideration, for example, is whether one has anything new to say that has not already been covered by the courts or the parties.  Another even more basic consideration, you would think, is whether one is going to help or hurt the cause that one purports to support.

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Does Shaming Work As Sanction?

By Stefan Published: March 10, 2012

Some thoughts on that here.

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Mary Brown, Lead Plaintiff in Health Care Case, Files for Bankruptcy In Part Because of Health Care Bills

By Wilson Huhn Published: March 10, 2012

Mary Brown, a lead plaintiff in the challenge against mandated health insurance, has filed for bankruptcy in part because of her husband's unpaid health care bills.  See Annie-Rose Strasser,  ThinkProgress, Lead Plaintiff In Health Care Reform Suit Files For Bankruptcy With Medical Debt.  There is also some question as to whether she is uninsured or whether she now has health insurance.  Oral argument is in two weeks; think it'll come up?

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Poverty and Crime

By Wilson Huhn Published: March 9, 2012

Reports from the Pew Research Center and the National Center for Children in Poverty make for depressing reading.  The statistics regarding poverty and crime are astonishing and a shameful reflection on our society.  In 2009 the Pew Center issued a report 1 in 31: The Long Reach of American Corrections.  The title of the report refers to the fact that at any given time over three percent of Americans are either in jail, on probation, or on parole. At the time this report was issued, approximately 2.3 million persons were incarcerated in the United States.  This comprises .7% of the adult population.  This is the highest incarceration rate in the world.  Russia is second at .58% of the adult population, and Ruanda third at .56%. England's incarceration rate is .15%, less than one-fourth ours.  America has less than 5% of the world's population, but nearly one-fourth of the world's prisoners.

From a purely economic perspective this is unacceptable.  According to Pew on the average it costs $29,000 annually to keep a person in jail.  And that does not factor in the opportunity costs of incarceration; the lost productivity, lost economic consumption, and lost tax revenues that result from removing an individual from the economy.  I am not suggesting that we would be better off economically if we were to suddenly release all criminals from custody.  I am simply stating the obvious fact that we are failing to prepare and train people to perform useful roles in our soceity and that this creates a tremendous burden on the rest of us.  Given the opportunity, almost everybody would choose to earn a legitimate livelihood, raise a family, and enjoy a normal life.  In a global economy societies that do not provide those kinds of opportunities to all of its members will not remain competitive for very long.  Nor should they.

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The Gender Gap in National Politics

By Wilson Huhn Published: March 7, 2012

Recent events including the introduction and defeat of the Blunt Amendment in the United States Senate and political commentator Rush Limbaugh's vicious attack on Sandra Fluke in the context of the debate over birth control have highlighted the extent to which the major American political parties have become polarized on gender issues, with women favoring the Democratic Party.  But this was not always the case.  Historically women identified more with the Republican Party.

Here is a historical perspective with data concerning the "gender gap" in national politics.

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Attorney General Eric Holder Identifies Factors for Targeting Enemy Combatants

By Wilson Huhn Published: March 6, 2012

In a speech yesterday at Northwestern University Law School Attorney General Eric Holder addressed  a number of legal issues associated with the war against al Qaeda and its allies.  Specifically, he identified the factors that the Executive Branch takes into account in targeting enemy combatants.  The legal issues discussed by Attorney General Holder yesterday all turn upon one basic question: are we at "war" with al Qaeda?   I think it is clear that we are war with Al Qaeda, and that the law of war therefore applies.  I discuss those propositions first, and then turn to a description of Holder's speech.

Are We At War With Al Qaeda?

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2011-2012 Supreme Court Term: Oral Argument in FCC v. Fox, continued

By Wilson Huhn Published: March 5, 2012

Two days ago I summarized the issues in this case.  Yesterday's post described the Solicitor General's presentation to the Supreme Court in oral argument.  Today I describe the television broadcasters' arguments to the Court, through their attorneys Carter G. Phillips and Seth P. Waxman.  The transcript of oral argument is available here.

Attorney Phillips attempted to argue that the "indecency" regulations were recently adopted and that therefore they do not constitute a longstanding understanding between the nation and the nation's broadcast media.  Chief Justice Roberts immediately interrupted Phillips, insisting that broadcasts were becoming more indecent:

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Rush Limbaugh, Larry Flynt, and the Westboro Baptist Church: Is Limbaugh Protected by the First Amendment?

By Wilson Huhn Published: March 5, 2012

Over the course of three days conservative commentator Rush Limbaugh repeatedly defamed Sandra Fluke, a third-year Georgetown law student, calling her a "slut" and a "prostitute."  If found guilty of slander or intentional infliction of emotional distress (IIED), Limbaugh would be liable to Ms. Fluke for millions of dollars in actual damages, and his potential liability for punitive damages would be astronomical.  Is Limbaugh liable to Fluke for defamation and IIED, or is he protected by the First Amendment?  Limbaugh's only defense would be to compare himself to pornographer Larry Flynt and the homophobic Westboro Baptist Church.

An article by the UK Daily Mail Online describes how this controversy arose.  The House Oversight Committee under the leadership of Rep. Darrell Issa called five male witnesses to testify about how the President's order requiring health insurance companies to cover contraception violates the religious liberty of employers.  Democrats were told that they could call one witness, and they chose to call Ms. Fluke.  The Committee refused to permit Ms. Fluke to testify on the ground that she was not an expert on religious liberty.  According to the Mail,

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2011-2012 Supreme Court Term: Oral Argument in Fox v. F.C.C.

By Wilson Huhn Published: March 4, 2012

I described the First Amendment issues that are at stake in this case in yesterday's post. Today's post summarizes what occurred during the government's presentation at oral argument in FCC v. Fox on January 10, 2012. The transcript of oral argument is available here.

Solicitor General Donald B. Verrilli argued this case on behalf of the FCC.  Attorneys Carter G. Phillips and Seth P. Waxman represented the Fox and ABC television networks respectively.  This post describes Verrilli's presentation.

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2011-2012 Supreme Court Term: FCC v. Fox Television Stations, No., 10-1293 (Vagueness, Freedom of Expression)

By Wilson Huhn Published: March 3, 2012

The last time this case came before the Supreme Court in 2009 it was for 'fleeting expletives' uttered by Cher at the 2002 Billboard Music Awards broadcast by Fox and by Nicole Richie and Paris Hilton at the same event in 2003.  The Supreme Court decided that case not on constitutional grounds but rather under principles of administrative law.  This time the case comes before the Court because of a scene of nudity - a boy watching a woman entering the bath naked - and the constitutional issues are squarely before the Court.  ABC showed this scene on a program at 9:00 in the evening instead of waiting one more hour when it would have been allowed under F.C.C. guidelines.

An F.C.C. regulation prohibits a radio or television broadcast station from broadcasting "any material which is indecent" between the hours of 6:00 a.m. and 10:00 p.m.  On February 5, 2003, the ABC Television Network broadcast an episode of NYPD Blue entitled "Nude Awakening" at 9:00 in the evening - prime time, when it may charge more for advertising.  The title of the episode is a reference to the "sexual awakening" of a young boy who sees an adult woman living in his home enter a shower naked.  The scene lasted seven seconds.  Had the network chosen to broadcast the episode an hour later it would have been permitted.  As it was, the F.C.C. fined the 44  network affiliates that carried the episode the maximum penalty of $27,500 apiece, a total of $1.2 million.  The Second Circuit Court of Appeals reversed the agency's decision on the ground that the FCC guidelines are unconstitutionally vague.  The FCC appeals from this decision, contending that the guidelines are not vague and that the broadcaster did not have the right under the First Amendment to broadcast this scene at this time of the day.

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Update on Judge Who Forwarded Racist Email

By Wilson Huhn Published: March 2, 2012

Roger Cebull, the Montana federal district court judge who forwarded a vile racist "joke" to his friends, has requested a review of his actions by the Ninth Circuit Court of Appeals and is planning to formally apologize to President Obama.

Matt Volz and Matt Gouras of the Associated Press report that federal Judge Roger Cebull has initiated an appellate review of his actions for judicial misconduct and is planning to send President Obama a formal apology for forwarding an email message describing how the President's mother purportedly explained to her young son how he was drunkenly conceived and compared interracial sex to sex with a dog.

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2011-2012 Supreme Court Term: Decision in Kurns v. Railroad Friction Products Corp.: Statutory or Constitutional Stare Decisis?

By Wilson Huhn Published: March 1, 2012

Yesterday the Supreme Court issued a decision in Kurns v.  Railroad Friction Products Corp.  This is yet another judicial decision ruling that a piece of federal regulatory legislation should be interpreted to preempt state common law tort claims.  A disturbing element in this case is the willingness of the Court to give precedential effect to a case that was decided in 1926 at the height of the Court's opposition to progressive legislation protecting workers.

The facts of Kurns were that George Corson, a welder and machinist for a railroad, developed mesothelioma from exposure to asbestos.  His widow sued the manufacturer of some of the machinery for defective design of the equipment and negligent failure to warn of the risks of exposure to asbestos.

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Health Care Briefs: Reply Brief of Solicitor General Donald Verrilli on Anti-Injunction Act

By Wilson Huhn Published: March 1, 2012

Over the next couple of months I will be reviewing the briefs filed in the health care case pending before the Supreme Court of the United States.  Today's entry concerns a reply brief filed by Solicitor General Donald Verrilli regarding a jurisdictional issue arising under the federal Anti-Injunction Act.

Yesterday I received in the mail a reply brief from the Solicitor General on the issue whether the Court should dismiss the case for lack of jurisdiction under the Anti-Injunction Act.  It does something I thought was not possible.  It makes a persuasive argument for the proposition that the Anti-Injuction Act does not apply to the penalty provision of the Affordable Care Act.  The brief walks a fine line, though, because the federal government does not wish to weaken the Anti-Injunction Act.  Accordingly, the SG's brief also rebuts a number of arguments proposed by the respondents that would have the effect of gutting the Anti-Injunction Act.

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2011-2012 Supreme Court Term: Oral Argument in MBZ v. Clinton

By Wilson Huhn Published: March 1, 2012

Like most of the cases this year, oral argument in this case featured a very active bench.  Justices vigorously questioned both attorneys; my impression is that they were much tougher on the attorney for the petitioner, and much less satisfied with his answers.  I think the President will win.  The question is whether he will win on jurisdictional grounds or on the merits.

As described in yesterday's post, the issue in this case is whether Congress may order the President to treat Jerusalem as part of Israel - at least in the context of identifying American citizens' place of birth on passports.  When American citizens are born in Jerusalem the State Department typically lists their place of birth as "Jerusalem," not wishing to takes sides in the dispute about sovereignty over that city.  In 2002 Congress enacted a statute ordering the State Department to allow people born in Jeruslame to have their passports say that they were born in "Israel" instead of "Jerusalem."

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