Archive for the 'Government' Category

Health Care Reform: On Life Support, But Not Dead Yet

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On March 28, the Supreme Court wrapped up 3 days of oral arguments in what might be its most important case in decades. It just heard a challenge brought against the Patient Protection and Affordable Care Act, also known as the healthcare reform law we’ve been hearing about nonstop for the last two years.

Now that we’ve gotten a small hint of what the justices think about the law, based on the questions they asked during arguments, what do we know? The only thing that’s completely certain is that we still don’t know how this is going to turn out. The court isn’t expected to rule on the case until sometime in June. But by all accounts, things didn’t go well for the Obama administration, which was defending the law.

The law’s opponents probably shouldn’t pop the champagne just yet. But its supporters might want to have some whiskey on hand, come June.

One analyst described the proceedings as a “train wreck” for the Obama administration. Justice Kennedy, widely considered the swing vote on which the healthcare reform will stand or fall, asked the government’s lawyer some very pointed questions which seemed to betray his skepticism of the law’s constitutionality.

Before I go any further, here’s a very brief recap of the issues: the stated goal of the Affordable Care Act (ACA) is to increase the number of Americans who have health insurance coverage. There are several means by which Congress could have gone about achieving this goal. The method it chose is a so-called “individual mandate.” Basically, the law, when and if (and after today, that looks like a really big “if”) it goes into effect, insurance companies will be prohibited from turning away customers because of pre-existing conditions. But if this rule were in place by itself, it would simply encourage people to hold off on buying health insurance until they actually get sick, at which point their treatments would be covered. Obviously, this would either cause premiums to skyrocket, or insurance companies to simply go out of business.

So, to get around this problem, the law also requires almost all Americans to obtain health insurance (either through their employer, a government program, or buying it directly), or pay a tax penalty each year. The idea is that this would bring a large number of young and healthy people onto the insurance rolls. These people are very profitable to insure, because, on average, they don’t sustain nearly as many medical expenses as other populations. These increased profits would, in theory, offset the added expense of ensuring people with pre-existing conditions.

And this so-called “individual mandate” is the central issue of the constitutional challenge to the law. Basically, under the constitution, the federal government is one of enumerated powers, meaning that it can only engage in activity which is expressly permitted by the Constitution, and forbidden from doing everything else. One of the powers granted to Congress in the constitution is the power to regulate interstate commerce. Over the years, the Supreme Court has read this to mean that Congress can pass laws regulating almost any activity that has some conceivable effect across state lines. Given the interconnected nature of a modern economy, this gives Congress the power to regulate almost anything. However, Congress has never before required individual Americans to buy a product or service, as the ACA does. Although the powers of Congress under the Commerce Clause are broad, everyone agrees that they are not unlimited. Opponents of the ACA are now arguing that this is where we should finally draw the line.

And at the end of the third day of oral arguments, it appeared that at least 4 Supreme Court justices agreed with the opponents of the law, plus Justice Kennedy appearing to lean in that direction. The 4 liberal-leaning justices appeared firmly in favor of letting the law stand.

However, all is not lost for supporters of the ACA. While things aren’t currently looking good for it, there’s still a chance that it will be upheld. In his questioning of the government’s lawyer, Justice Kennedy seemed to hint that he might be open to analyzing the mandate under a stricter standard of review than other federal regulations. It would remain to be seen whether or not the insurance mandate would meet that standard.

And assuming that the individual mandate is overturned, there’s another question: does that mean the rest of the 2,000+ page law is also invalidated? Many laws contain a “severability provision,” stating that, if any single part of the law is declared unconstitutional, the rest of the law should remain in effect. The ACA, however, does not contain such a provision. So, the question the court has to consider is whether or not Congress would have passed the rest of the law

It seems pretty clear that, if the mandate is overturned, the prohibition on discrimination against people with pre-existing conditions would have to go as well, since it simply isn’t viable without the mandate. As to the hundreds of other provisions in the law, there’s a good chance that they’ll stand.

In the end, however, this is just me reading the tea leaves. We’ll find out this law’s fate in June, and I’ll be sure to keep you updated.

Federal District Court in Maryland Rules State’s Gun Control Law Unconstitutional

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It looks like gun nuts and Second Amendment proponents alike have potentially just found a new home to roost their Glocks.

Yes, I know the link I just provided was to a very long and seemingly boring Maryland federal district court opinion.  But don’t worry, you don’t have to read it because I’ll provide the “bullet” points (ba-dum-bum) for you.  The opinion in Woollard v. Sheridan just came down the pipeline a few days ago and holds as unconstitutional a Maryland gun control statute.

You read that right gun huggers, unconstitutional; as in going against the highest law in our land.

However, what’s most interesting is that the gun restrictions in the Maryland statute itself aren’t all that different then the wording you’d find in the gun permit laws of other states.  Maryland allows the carrying of concealed weapons outside the home, but only if the carrier can show “good and substantial reason” to carry a gun.  The Maryland law in question generally restricts this to people who run businesses that have a high chance of being robbed, law enforcement, judicial officials, private security staff, and those that can show an “objectively heightened threat above and beyond personal anxiety.”

Sounds groovy, right?  However, it’s the last category that the federal district court had trouble with.  The court’s ruling essentially states that it’s unconstitutional for Maryland to require people to lay out a specific objective threat and instead should allow anyone with reasonable apprehension of their safety to carry a gun outside of their home for protection.

This is huge because it means that the federal district court in Maryland is going old school with their Second Amendment interpretation and, as many critics have pointed out, is in essence condoning the carrying of guns for plain old personal protection, ala Texas.  However, I should also note that this ruling has already been reserved for appeal, so who knows what the federal appellate court will say about its underling’s decision.

The federal district court’s ruling does bring up an interesting point on the current state of gun laws in America.  As it stands today, most states don’t allow the concealed or unconcealed carrying of guns in public.

Now I’m not a gun nut by any means, but I’ve never understood the reason why most governments are so against allowing concealed carry.  Yes, I’ve heard the arguments: increase gun violence, possibility of increase gun threats, and so forth.  But these reasons aren’t very compelling to me because the whole point of gun control laws is to prevent the unauthorized use of guns.  The ironic part however is that they don’t seem to do much to prevent those in society that we want to keep from using guns from actually using them.

By this I mean, career criminals, gang members, robbers, and every other person gun control laws are aiming to stop will nonetheless use and carry guns because, well, they’re criminals and they’re going to carry and use guns no matter what.  But this isn’t to say that all former convicts are forever convicts, but rather what I mean is that if someone is planning to commit a crime where the use of a gun is necessary, that person probably isn’t going to care that they’re also breaking a gun control law.

The fact of the matter is that gun control laws only end up harming those that really need protection the most.  Chances are a law abiding citizen isn’t going to be carrying a gun and thus becomes a potential target to wrongdoers since they’ll know that their victim won’t be able to fight back as effectively.  Gun control laws remove the ability for lawful citizens to utilize a power crime deterrent.  And aside from increasing the sentence of those criminals caught with a weapon in public, gun control laws don’t do much by way of protecting citizens.

Like I said before, I’m not a gun advocate in any sense of the word, but I think federal district court in Maryland made the right decision in this case.  Even though their ruling will most likely be struck down on appeal, hopefully their opinion will gain some traction and help put the issue of gun law reform back into the public’s attention.

It seems like there should be a much easier way to restrict gun usage from the more criminally inclined in society while also allowing private citizens a chance to still protect themselves.  Something as simple as a Megan’s law type gun restriction could be the answer.  I think by simply enacting a law prohibiting gun crime convicts from carry guns in public while allowing everyone else to do so is a good place to start.

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Facing Huge Cuts, Legal Aid Is Going to Change

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Last year, when Congress was planning one of the biggest budget-cutting sprees in the country’s history, I wrote about how the federal funding to various legal aid organizations across the country was probably going to be significantly cut. What this means for legal aid organizations, and the people who depend on them, remains to be seen.

Well, most of those cuts passed, and now it’s time to pay the piper: many of these cuts are taking effect this year, and a large number of legal aid organizations are planning major layoffs. First, the numbers: the 2012 federal budget cuts funding to the Legal Services Corporation (a federally-owned corporation that’s responsible for distributing federal funds to legal aid groups across the country) by 14% from its 2010 levels. Funding has dropped from $404 million to $348 million. Now, a 14% reduction in an organization’s budget is certainly significant, but it’s probably not catastrophic. However, most of the groups that rely on these funds already operate on a shoestring budget.

A survey of legal aid organizations across the country shows that most of them are planning layoffs of attorneys, paralegals, and other staff. On average, they’ve reported that they plan to reduce their staff of attorneys by 13%, paralegals by 15% and other support staff by 12%. This is obviously pretty significant, especially since the vast majority of these organizations already receive more requests for legal help than they can accommodate. While the exact outcome of these cuts is impossible to predict, one thing is virtually guaranteed: legal aid organizations will have to turn away more clients in genuine need of legal help, who would otherwise qualify.

And we’re still dealing with the consequences of the massive job losses that happened during the recession of 2008 and 2009, so the number of people living in poverty is higher than it’s been at almost any point in our country’s history, meaning that more people will be seeking the services of fewer lawyers.

On top of all this, the layoffs of employees at legal aid centers means that there will be even more unemployed legal professionals seeking work in a legal job market that’s already oversaturated. Of course, if you’re an average person looking for affordable legal help, the fact that there are some out-of-work lawyers is probably the least of your worries. Nevertheless, lawyers are (for the most part) human beings, and a fairly large number of them are going to be out of a job very soon because of the actions of Congress.

In order to compensate for this, it seems pretty clear that legal aid organizations should start looking for alternative sources of funding, reducing their dependence on federal funds. As the last few years have shown, the political climate in Washington can turn on a dime, and small but important programs (funding legal services for the poor, for instance) which were once uncontroversial can suddenly become hot-button issues, and targets of attacks that politicians can use to score political points. Basically, no program is safe.

So, what should legal aid organizations do? Well, most of them get a significant amount of money from private donations. They may want to start diverting their limited resources away from lobbying Congress for funds, and toward soliciting donations from private parties. And while state governments are also cash-strapped, at least some might be inclined to partially make up for the shortfall in federal funds.

For example, California has recently begun implementing a law that provides funding for indigent parties in civil cases which deal with the basic human needs of the party, such as shelter and healthcare. This so-called “civil Gideon” rule, if it proves successful, could serve as a model for other states to follow.

But most state governments, as well as the federal government, seem unable to see past their own noses, budget-wise. They’re concerned about reducing government debt and deficits as much as possible, as quickly as possible. These are both important goals. However, there are other things that need to be taken into account, like the overall economy, which is linked to, but not the same thing as, the budget.

For example, if a person is unlawfully fired from their job, but can’t afford any type of legal representation, and legal aid organizations are unable to help, it’s highly unlikely that this person will have any type of recourse. This person will then have less money to spend, which, when aggregated with many similar incidents, will have a significant negative impact on the economy.

Still, it’s unlikely that many state governments are interested in following California’s lead and guaranteeing access to legal counsel in some civil cases, let alone funding such a mandate. However, I think that such a law would, eventually, pay for itself. By helping consumers pursue legal recourse against unlawful termination, foreclosure, denial of access to healthcare, and other things that significantly impact one’s earning potential, there will be an additional (though admittedly small) layer of security in the social safety net.

If people know that they’re unlikely to be foreclosed upon even when they’ve made all their payments, be fired for unlawful reasons, or suffer other legal harm that occurs in the private sector. This would probably increase consumer confidence, increasing spending, and therefore improving the economy, and creating a larger tax base.

Hopefully, we’ll come to our senses soon.

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Arizona Town Fights to Keep Non-English Speakers Off The Ballot

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To me, Arizona is like an incredibly gifted and interesting kid with low self-esteem.  The state has a lot going for it on its own that would make most people want to visit and like it.  It’s got the Grand Canyon along with a bunch of other beautiful national parks, it’s one part of the Four Corners states, it has great ski resorts, and a rich history.  Yet for some reason, much like the aforementioned low self-esteem child, it thinks the only way to get attention is by acting out.

Seriously, first it tries to pass that cockamamie immigration law, SB 1070, that would have required every alien to constantly carry around their papers.  And now there’s a town in the state that’s trying to keep a person off a seat for city council due to her less-than-basic English skills.  Hmm, okay, maybe that latter cry for attention isn’t all that unreasonable.  But still, it makes you want to just shake the state and tell it to love itself.

But seriously, for real this time, San Luis, a small town in Arizona, has recently made some waves in the media over some controversy with the town city council elections.  A candidate by the name of Alejandrina Cabrera, a native Spanish speaker, wants to run for a spot on the council, but was blocked in court by the city’s mayor, Juan Carlos Escamilla.  Escamilla claims that Cabrera isn’t qualified to serve on the council because her English skills aren’t up to snuff.  Though he also admits his own English isn’t perfect, he asserts Cabrera’s English shortcomings are severe enough to be a hindrance to her governing abilities.

Cabrera has conceded that her English isn’t great and a linguist’s report shows her to only possess “basic survival level” English, but she argues that in a town like San Luis this is sufficient.  She might have a point as the town only has about 25,000 residents, is mostly bilingual, and sits right on the U.S.-Mexico border.  As it stands right now, the Court must decide whether or not to strike Cabrera from the ballot come election time.

It’s worth noting that many states have laws requiring citizens in political position to be able to speak English, and not surprisingly Arizona also has such a law in place.  The issue is that many of these states, including Arizona, don’t really specify how much English a person needs to know in order to be considered able to speak English.  It might sound like a trivial detail, but as you can see in Cabrera’s case, it’s quite literally her whole case.  As Arizona’s law sits today, there’s not much guidance in this area, only a general provision.  About the only good thing about this situation is that the story serves as a great jumping point for how an English-requirement law should be written and whether or not it should even exist.

But before we get to that, it’s worth noting that many people think this law is discriminatory, and should be a form of illegal governmental discrimination.  However, that’s simply not the case under the Constitution; states are given a general police power under the Tenth Amendment that allows them to legislate for the general welfare of the state’s citizens.  Furthermore, it’s long been established by the U.S. Supreme Court that both state and federal governments can establish basic requirements that must be fulfilled if one is to take a leadership position in our government.  And setting a language requirement is certainly within both the federal and state government’s rights.

Now that that’s out of the way, back to solving the English requirement issue.  I don’t know about you guys, but I think figuring out how proficient someone is in English was already solved a long time ago by the Department of Education.  The answer is simple: standardized testing.  It doesn’t even have to be university level, just the basic ESL test given to all foreign students is sufficient to determine how proficient a prospective candidate is in English.

I don’t know why these legislators never thought about including something like this before in their state laws.  In order to establish one’s fluency in English for political office, that candidate must be able to pass an ESL test.  If they do, then they can run for the government position.  And to avoid any Fifth and Fourteenth Amendment equal protection issues, make the test applicable to all candidates running.  Even the native speaker – everyone has to pass it.  Simple, right?  I think so.

But the bigger issue here is whether an English requirement for political office should even exist.  Technically our country has no official language, despite the prevalence of English.  We are a country of immigrants after all and we were founded on the principle of equality.  In that sense, why require anyone to speak English at all?  However, we can’t deny the reality that most everyone in this country speaks English and therefore in order for one to be an effective leader here, that candidate must be able to communicate with the people in this country in the language that the majority speaks.

Ultimately, I think this is too big of a question to answer . . . on my own that is.  English as America’s official language has always been a contentious subject.  So I leave this question’s answer to you, dear readers?  What do you think about the English requirement?  Nay or yea?

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Police Need a Warrant for GPS Tracking

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The U.S. Supreme Court’s 2012 term will likely go down in history as one of the most important and eventful Supreme Court terms in decades. It is hearing cases having to do with healthcare, immigration, and many other important topics.

And today, the Court delivered a very interesting and important decision about the 4th Amendment right to be free from unreasonable searches and seizures: it has held that, for police to place a GPS tracker (or, presumably, any other device capable of tracking a car’s location), they must obtain a search warrant. In a rare unanimous ruling, the Court held that tracking a car with a GPS device is a “search” for the purposes of the 4th Amendment. The opinion can be found here (.PDF).

The surreptitious use of tracking devices has been a very important tool for law enforcement for decades. It allows the police to see where a suspect’s vehicle is driven, and when. Obviously, this information can prove extremely useful in some criminal investigations.

The 4th Amendment to the constitution enshrines the right of individuals to be secure from “unreasonable search and seizure,” and it says that search warrants cannot be issued without probable cause. Note, however, that it does not say when a warrant is required to conduct a search, or even if a warrant is required. However, over the years, the courts have carved out a rule that seems to work pretty well: a search conducted without a warrant is presumed to be unreasonable, and therefore unconstitutional, with a few very specific exceptions (consent from the owner or resident of the property to be searched, for example).

So courts often have to determine whether or not a particular act constitutes a “search” for the purposes of the 4th Amendment. For example, courts have ruled that using infrared cameras to peer inside a person’s house constitutes a “search,” and therefore requires a warrant. On the other hand, they have held that a police officer walking by a house, and happening to see illegal activity through a window or open door, does not constitute a search, and that information obtained via such means can be used in court whether or not there was a search warrant.

So, does tracking a car via GPS constitute a search? The Court said yes. Writing for the Court, Justice Scalia boiled down his position to this: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted. “

The court seems to be focusing on the fact that, in order to obtain this location information, the government had to make a significant intrusion into the private property rights of the defendant. It spent less time dwelling on the question of whether or not the defendant had a reasonable expectation of privacy with respect to his car’s location on a public road.

The Supreme Court has noted that their 4th Amendment analysis doesn’t rest entirely on the law of property. For example, an overnight houseguest at your home has the exact same 4th Amendment rights with respect to the belongings he has in your home as you would. This is the case even though he has no property interest in the home being searched. Instead, it’s the defendant’s privacy rights that the court is looking at.

However, that does not mean that property rights can’t enter the equation, as illustrated in this case.

So, what does this mean? Well, it shows that, when it comes to privacy rights with respect to the 4th Amendment, there is a lot of common ground on a Supreme Court that seems defined by 5-4 decisions falling along predictable ideological lines. Although the Justices differed on their precise reasoning, this very pro-privacy decision was unanimous.

While I’ve been critical of some of the trends the Supreme Court has been taking in recent years, the Roberts court has been pretty consistent in upholding the 4th Amendment. And this is a trend that we should all be happy about.

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