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Trump Presidency Promise: Repeal Obamacare in 2017

One of the main platforms President-elect Donald Trump ran on during the election was healthcare reform. Repeal Obamacare. “Great health care at lower costs.” That’s what we’ve heard over and over again. Since the election, Trump seems to be singing a different tune now, saying there are parts of Obamacare he plans to keep.

Which parts though? Senate Majority leader Mitch McConnell asserts, “The Obamacare repeal resolution will be the first item up in the new year.” With a lot of determination coming from the GOP, we haven’t really seen any indication of what a new plan might look like and how it will affect healthcare for millions of Americans. 

How Do They Plan to Do It?

Repeal and delay through budget reconciliation. The GOP has been very public about their plans to repeal and delay the Affordable Care Act’s funding using this process. How does it work, though?

Budget reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. The Senate could introduce new legislation regarding these tax, spending, and debt limits that relate to Obamacare without being subject to filibuster by the Democrats and, because the GOP controls the Senate, the new legislation would pass by a majority vote.

obamacare repeal 2017In other words, if it impacts federal spending, the GOP can pick and choose which parts of Obamacare they don’t like and thus block the spending. This is their way of repealing the parts they hate without throwing the whole thing out altogether.

It’s not necessarily that simple, though. Budget reconciliation requires forming a budget resolution, which is typically a lengthy back-and-forth process that can take months to come up with a final product. Nonetheless, if the budget reconciliation is accomplished, money would likely continue to flow through for Obamacare for at least a few years, giving the GOP time to fill in the holes and craft a new system.

Will It Work?

A promise to reduce healthcare costs sounds great, but how is this going to be accomplished? At the end of the day, it doesn’t really matter how Congress plans to repeal the Affordable Care Act. What matters is how it’s going to impact the nation. Cost is important, but so is quality.

According to a report from the Urban Institute, under this reconciliation process, the change could eliminate Medicaid expansion, eliminate the federal financial assistance for Marketplace coverage, and eliminate the individual and employer mandates. The Urban Institute predicts this process will cause 4 million people to lose insurance in the first year alone and, by 2019, the already high number of 28.9 million Americans without insurance will increase to 58.7 million. This is a 103% increase. This is just the tip of the iceberg and will only get worse if Congress doesn’t come up with a replacement quickly.

Since it doesn’t appear the GOP has any agreed upon alternative plans for how they’re going to better Obamacare, the major concern floating around with this repeal and delay plan is that it will create a frenzy within the insurance market during the transition period.

Although a direct link is widely debated, some believe those with insurance are healthier and less likely to die prematurely. Does this mean less healthcare creates an unhealthier America? Will this create a spike in insurance rates? It’s definitely a likely outcome that could mean Americans won’t be looking at lower health care costs anytime soon. 

Obama Signs New Law That May Make It Harder to Repeal

President Obama recently signed the 21st Century Cures Act into law, which many are regarding as a last ditch effort to sway the opinions of some proponents in the hopes of keeping Obamacare in place.

Certainly not the primary target of the Act, as the majority of the bill is focused on medical research funding, improvements to mental health and substance abuse care, streamlined regulations for drugs and medical devices, and some changes to Medicare and Medicaid payments, but there’s a small portion of the bill that focuses on a positive change for small businesses.

The relevant portion of the Act essentially allows small businesses to use Health Reimbursement Arrangements (HRA) to compensate employees who buy their own insurance. Companies with fewer than 50 employees can reimburse those employees for purchasing individual health insurance as if the company were directly paying the premiums on a group health policy. Employees won’t have to pay taxes on the company’s premium contribution and the company won’t owe any payroll taxes on the reimbursements either.

Why A Blind Trust Is So Important for a Trump Presidency

Not every U.S. President has used blind trusts during their time in office.  In fact, Obama was the most recent president that chose not to use a blind trust.  However, the Obamas had bank accounts, treasury notes, index funds and college savings that were unlikely to pose any direct conflicts of interest while in office. President elect Donald Trump can’t say the same thing regarding his financial portfolio—he’s set to be the wealthiest president in American history.

Trump’s attorney, Michel Cohen, recently announced that Trump’s massive business holdings would in fact be placed into a blind trust to be controlled by his three eldest children.  If you’re not sure whether that sounds like a conflict of interest in and of itself, let’s take a look at what a true blind trust should look like.

“Blind” means Blind

A blind trblind trustust is a trust in which the trustee has full discretion over the assets and the trust beneficiaries have no knowledge or communication of the holdings of the trust.  These are typically used by federal officials to avoid any potential conflicts of interest that may arise during their time in office.  The federal government recognizes “qualified blind trusts” (QBT), but in order for them to be qualified, the trusts must not be affiliated with, associated with, related to, or subject to the control or influence of the federal official.

A trustee has full discretion over the assets within a blind trust, which means a trustee should not be a current or former investment advisor, accountant, attorney, or relative.  In other words, in order for a trust to be completely blind, the trustee needs to essentially be a stranger.  At the very least, it should be someone that doesn’t have any personal incentive or ties to the federal official.

Not only do Trump’s children have financial beneficiary conflicts with managing the trust, but they continue to advise Trump on his transition team, making the details of the trust extremely accessible to Trump.  It’s a bit misleading for Cohen to represent Trump’s plans as a blind trust.  It’s not blind at all.

What’s another important requirement of a blind trust?  It’s hard for a trust owner to be truly bling to their holdings unless assets are liquidated and then transferred into the blind trust.  Doing so allows the the trustee to reinvest and/or manage the assets at their discretion, leaving a trust owner completely blind.  This would require Trump to sell everything, some of which he doesn’t even have the power to do without partner consent.  Letting his children take over and run the businesses isn’t enough for him to be completely blind.

Unprecedented Business Dealings Present Greater Conflict of Interest Threats

So, we’ve settled on the fact that, as of now, Trump’s blind trust will not actually be a blind trust.  Why should it matter, you ask?

Trump is unique from any other president in that so much of his wealth is tied to the “Trump” brand.  Trump has listed roughly 500 companies on his latest FEC filing and has business deals in more than half a dozen countries.  There has never been a president with as vast of business conflicts both domestically and internationally before and, even despite the best of intentions, anyone with the sheer number of companies as Trump would be hard pressed to make completely unbiased decisions.

A blind trust, a true one, would prevent partial decision making for personal economic interest, which is why conflict of interest laws were created in the first place.

In the wake of the Nixon Watergate scandal, the Ethics in Government Act of 1978 was passed, creating mandatory public disclosure laws for public officials and their immediate family.  In addition to public disclosure, the Act mandates that officials cannot use their public office for personal gain.  Congress has, however, exempted presidents and vice presidents from these conflict-of-interest laws on the basis that a presidency has so much power that any possible decisions or actions would be nearly impossible to be kept free from conflicts of interest; requiring the executive office to remove themselves from decision making when there’s a conflict could create constitutional issues.

There’s a deep seated principle that an official shouldn’t use public office for private gain and, even despite the looser legal requirements, most presidents have have opted to take measures to separate themselves from their personal financial assets in order to avoid conflicts of interest.  Nevertheless, Trump has construed these looser requirements to mean “the president can’t have a conflict of interest.”  I do believe that’s quite the opposite of the intent of the exemption but, even so, there isn’t really anything stopping Trump from continuing to operate business as usual.

The History of the First Amendment and Flag Burning

The debate over how the American flag should be treated when it comes to freedom of speech and expression-both in recent days and over the years-is a question of law that brings out the highest passions on both sides of the issue. first amendment and flag burning Just last week, our new President-elect Donald Trump reignited the age-old debate with a tweet suggesting that that burning a United States flag should carry extreme penalties. He went so far as to suggest that it should cost a year of jail time—which would make the act a felony—or even lead to the individual who burned the flag being stripped of citizenship.

While these recommendations are likely some of the most extreme suggestions to come from a politician, their very extremity stems from the undercurrent of anger surrounding the act of flag burning—whether against the government or against the very people who burn the flag.  There are many who consider the act of burning the flag the ultimate act of protest against the acts of the government that represents the ideals of that flag.  At the same time, there are plenty of people who view the flag as a symbol of the United States and burning it an attack on the country itself.

Regardless of belief, however, it is a legal fact that the act of burning a flag is constitutionally protected first amendment expression—symbolic speech.  The Supreme Court has ruled as much not once, but twice, in the cases of Texas v. Johnson and U.S. v. Eichman.

Texas v. Johnson

Texas v. Johnson dealt with the acts of Gregory Lee Johnson.  At a protest outside the 1984 Republican National Convention, Johnson burned an American flag stolen by another from a nearby flagpole.  The act drew international media coverage, although nobody was actually injured.

At the time, Johnson’s act was a crime under Texas law and a court sentenced him to a year in prison and a fine of $2,000 for his actions.  However, the Texas Criminal Court of Appeal reversed this ruling saying that “the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol.”

The case went from there all the way to the Supreme Court of the United States, presenting the first case ever before them where they needed to decide whether a non-speech act such a burning the flag was protected by the First Amendment.  In 1989, the Court ruled that while an act is not always protected simply by its intent to communicate a message, an act is protected where the is both 1) and intent to convey a particular message through an act and 2) whether the message was understood by the majority of those who viewed the act.  They decided that Johnson’s act of burning the flag sent a clear message that was easily understood, and thus deserved First Amendment protection.

They also decided that, while speech can be outside the protection of the First Amendment where it incites others to immediate acts of violence, this was not the case here.

This decision had an enormous impact on the laws of the United States—making flag burning statutes in forty-eight different states unconstitutional.

U.S v. Eichman

The response to the ruling in Texas v. Johnson was swift.  In the same year of the ruling, Congress passed the Flag Protection Act.  This act made it a federal crime to burn or desecrate the flag of the United States.  The very next year, in 1990, the Flag Protection Act was before the Supreme Court in the case of U.S. v. Eichman.

In two different states, flag burning at protests by the anti-war group the Vietnam Veterans Against the War Anti-Imperialist led to charges against protesters.  In both cases, the charges against the protesters were dismissed followed by an appeal to the Supreme Court challenging the constitutionality of the Flag Protection Act.  These two cases were combined and became U.S. v. Eichman.

This time, the Supreme Court was crystal clear.  It outright ruled that any statute that barred desecrating the flag, state or federal, was unconstitutional.  The decision argued that, while some may be incredibly offended by the act of burning a flag, the government may not prohibit speech simply because society finds it offensive. What’s more, the government certainly may not ban speech with the intent of suppressing the ideas behind that speech.

The Legal Debate Still Rages On

Despite these rulings, there has been no shortage of attempts to introduce a constitutional amendment to make the desecration of the American Flag illegal.  Since 1991, there have been 41 different proposals for such a constitutional amendment.  Some of the votes on these proposals have been extremely close, in 2006 a proposal for a constitutional amendment failed by only a single vote.

There are also, despite the unconstitutionality of statutes barring flag burning, situations where burning a flag can be illegal.  For instance, if there is another crime involved—for instance if somebody besides the one doing the burning was the owner the of the burned flag—the person burning the flag can still be charged with that crime.  What’s more, where a statute is neutral as to the content of speech—instead regulating the time, place, or manner of speech, it is constitutional.  Thus, a statute making it illegal to burn anything outside of a fire pit in a National Park could be constitutional but still make it illegal to burn a flag while in the National Park—unless you did it in a fire pit.

Flag burning is, and likely will always be, a topic distinguished by the extremely high passions on both sides of the issue.  However, barring a constitutional amendment, any law making it a crime to burn the flag—never mind the unheard-of punishment of stripping a person citizenship—will be patently unconstitutional.  The act of burning a flag communicates a deep discontent with the U.S. government and what the flag represents.  This can be offensive to some.  However, it is because it communicates such a clear, controversial, political message that the act receives the protection it does. No matter the form it takes, do we really want the government to have the power to censor speech criticizing it?

Arkansas Court’s Issue 7 Ballot Ban Leads to Another Lawsuit

Election Day is when new leaders are chosen and new laws are made by voters. That is why it is imperative that various government entities afford voters an opportunity to be well-informed on the matters and candidates that they are voting on. However, three voters in Arkansas have felt that they were not properly informed when they cast their ballots and filed a lawsuit in response.

When Jim and Cynde Watson voted in Marion County, they were not informed that a provision that still appeared on the printed ballot was no longer available for people to vote on. That provision was Issue 7, a controversial state law measure better known as the Medical Cannabis Act. The Arkansas Supreme Court barred Issue 7 from being a matter to be voted on when it was determined that over 12,000 signatures were obtained improperly. However, by the time that the Arkansas Supreme Court made the decision, the ballots had already been printed and were available for people to vote. So it was up to the pollworkers to inform voters that they could no longer vote on Issue 7.

Ms. Watson had heard about the lawsuit involving Issue 7. However, when Ms. Watson inquired about whether she and her husband could still vote on Issue 7, the pollworker she asked wrongly informed her that Issue 7 could still be voted on. A small sign notifying voters that Issue 7 could not be voted on was present in the polling place, but Mr. and Ms. Watson are arguing that the sign was placed in a location where it did not grab their attention. The Watsons and their fellow voter who joined them in the lawsuit over the lack of information regarding Issue 7 state that their misunderstanding over whether they could vote for Issue 7 impacted how they voted on another issue on the ballot.
Arkansas Issue 7

What Are the States Required to Tell Voters?

States are required by federal law to inform local voters about everything that they are voting on. The Help America Vote Act of 2002 (HAVA) requires states to have a formal plan for voter education to ensure that all voters have access to all of the information that they need to vote, especially with regard to measures that could become laws. As a basic part of providing voter education, states need to ensure that voters know what measures they can vote on and what measures they cannot vote on, even though the measures are still on the ballot. Informing voters about what cannot be considered on the ballot is especially important as this information can influence how a voter chooses to vote, which is what allegedly happened in Arkansas.

When the Watsons were misinformed by the pollworker as to whether Issue 7 could still be voted on, they voted in a manner that was different than if they had known for sure that their vote for Issue 7 would not count. On the original ballots for the 2016 Arkansas state and national elections, there were two measures that would lead to the legalization of medical marijuana. In addition to Issue 7, Arkansas voters were also able to legalize medical marijuana through Issue 6. However, Issue 6 did not contain a provision that would permit certain patients to grow marijuana on their own, making Issue 7 the more popular choice between the two measures. The Watsons chose to vote for Issue 7 because they preferred Issue 7 to Issue 6, and they were under the impression that they could still vote for Issue 7. If the Watsons knew that they could not vote for Issue 7, and that their only choice for legalizing medical marijuana was Issue 6, then they would have voted for Issue 6.

After the Watsons had voted, choosing to vote for Issue 7 and vote against Issue 6, they realized that the pollworker was wrong about the validity of their vote for Issue 7.  However, it was too late for the Watsons to change their votes and vote for Issue 6 instead. Out of concern that there were other voters like them who thought that their vote for Issue 7 would count when that vote was cast, the Watsons decided to file a lawsuit asking that everyone who voted for Issue 7 to be able to recast their vote with regard to Issue 6. The lawsuit also sought to change the manner in which pollworkers inform voters about the change in the ballot. Instead of merely having a small sign tucked away in amongst several other signs where it may not be seen, the plaintiffs wanted three signs clearly notifying voters that Issue 7 could no longer be voted on placed in prominent locations in each polling place. This would likely be sufficient to inform voters that, despite Issue 7’s appearance on the ballot, they could not vote on the matter.

Why This Matters, Now and In the Long Run.

Issue 6 did pass in Arkansas, thereby negating the need for anyone who voted for Issue 7 and against Issue 6 to change their vote. However, the larger issue of the misinformation shared by the pollworker and the need to improve voter education remains. By filing the lawsuit, the voters highlighted the blatant inadequacies of the current voter education system in Arkansas. Lawsuits such as this are important, as they can be the only way that impactful change is made. Regardless of the official outcome of the lawsuit, Arkansas will likely change how it informs voters about any changes made to the ballot and about any issues that can no longer be voted on.

Providing access to voter education materials and ensuring that registered voters know about what they are voting on are important duties of every state government. If you feel that you are being denied access to voter education or that your right to vote is otherwise being impeded by your state’s government, contact a government lawyer.

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. nude recording in bathrooms

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.



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