Archives for March 2012

By Anne King

Back when the Supreme Court granted cert in the Affordable Care Act cases, there was much speculation on how, precisely, the Justices would view the minimum coverage provision of the statute under the Commerce Clause power.  In two earlier posts (here and here), I highlighted several interesting (and less discussed) angles on the Commerce Clause discussed in three of the amicus briefs submitted in the Courts of Appeals cases.  Those same amici – a group of states supporting ACA, plus the National Women’s Law Center (NWLC)* and the American Association of People with Disabilities (AAPD), both on behalf of a number of organizations – also chimed in once the litigation reached the Supreme Court

As David Yin wrote here earlier this week, it’s debatable whether the Justices’ questioning at this week’s oral arguments reveal much about the ultimate decision.  Yet I was interested to see whether the amici’s Commerce Clause angles would crop up.  Amicus briefs arguably have greater significance in a case of this complexity, because they permit exposition of important legal and policy arguments outside the primary scope of the parties’ briefs.
[Read more…] about More on the Affordable Care Act Arguments — Commerce Clause Angles from the Amici

By Sushila Rao

The distressing tragedy of Trayvon Martin’s death has also unwittingly drawn attention to the role played by an influential but hitherto low-profile organization in getting Stand Your Ground Laws enacted nation-wide.  American Legislative Exchange Council (ALEC) is a business-funded group which describes itself as  pursuing a nonpartisan agenda, but has been attacked by critics as a standard “movement-conservative organization, funded by the usual suspects,” including the Kochs and Exxon Mobil.

ALEC was originally founded by Paul Weyrich—of “Moral Majority” fame—and basically helps develop bills for state lawmakers.  Progressives have cautioned, however, that ALEC is more than just your run-of-the-mill pro-business lobbying group.  ALEC  recruits members of state legislatures to pay a $50 annual membership fee, and solicits millions of dollars from corporations to finance a series of conferences where state lawmakers confabulate with big business to write model legislation that can be seamlessly transplanted at the state level across the country.  The Center for Media and Democracy (CMD) reports that over 98% of its revenue comes from sources other than legislative dues, primarily from corporations and corporate foundations.
[Read more…] about “Smart”ALEC? How Stand Your Ground Laws Became Entrenched Nationwide

By Najan Farley

Trayvon Martin’s shooting along with the beating death of Shaima Alawadi has elevated the serious issues of race and religion in the national discourse and consciousness. Although there are many who still debate the influence of race in the Trayvon Martin shooting, I am firmly of the opinion that race and gender were the most important factors in George Zimmerman’s decision to follow Martin and everything that occurred as a result, including Martin’s death. Similarly, Alawadi’s death occurred as a result of the combination of her identities of race, religion and gender.  While Martin’s death has created a movement, Alawadi’s death, while widely publicized, has not been discussed with the same fervor. Perhaps because her murderer is still at large and there is no doubt that he or she will be prosecuted to the fullest extent of the law.
[Read more…] about Trayvon Martin and Shaima Alawadi: The Beginning of a Movement

By David Yin

The mainstream media and legal blogosphere have covered the oral arguments in the Patient Protection and Affordable Care Act litigation (Dept. of Health and Human Services v. Florida) ad nauseam. The NYTimes certified, ”[t]here is no tea-leaf reading like Supreme Court tea-leaf reading” and excerpted commentary from notable sources:

Lyle Denniston from SCOTUSBlog determined that the argument ended “with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.” Other observers, listening to the same argument, were not so optimistic about the law’s chances. Andrew Cohen of The Atlantic reported “[t]he initial wisdom from the commentariat coming out of Tuesday’s argument, after all the barking by court conservatives, is that the insurance mandate is in trouble.” Jeffrey Toobin of the New Yorker declared, in a much-criticized rant, “This is a train wreck for the Obama administration… This law looks like it’s going to be struck down. I’m telling you all of the predictions, including mine, that the justices would not have a problem with this law were wrong.” Dahlia Lithwick of Slate penned a piece titled, “A Moment of Silence for Obamacare.”

All this analysis elides the antecedent question, which is how much stock should we be putting into these pointed questions?
[Read more…] about How Predictive is Oral Argument Questioning?

By Mark Wilson

Reading the brief for the states opposing the Affordable Care Act, one is properly acquainted with the definition of a Jeremiad: “a prolonged lamentation or complaint; also, a cautionary or angry harangue.” The states’ brief is lean on legal arguments and long on exhortations that, if the Supreme Court upholds the mandatory coverage provision of the Affordable Care Act, we’re that much closer to a totalitarian dystopian society.

The states’ focus — and, it turns out, the focus of various Justices — is what “regulation” means. The Commerce Clause authorizes Congress only to regulate interstate commerce. Does this include creating interstate commerce? That’s the states’ framing of the issue, but it’s centered on a premise that may or may not be true: that people who choose not to purchase health insurance are not engaged in interstate commerce.
[Read more…] about Its ‘Regulation’ if You’re Already There

By Billy Corriher

When the lives of George Zimmerman and Trayvon Martin collided on February 26, neither one could have understood what was happening. Zimmerman was a neighborhood watch volunteer, and he mistakenly thought this skinny teenager, walking down the street with candy, was some sort of threat.  Martin, on the other hand, had no idea why this stranger was staring at him and following him.  Visiting his father in Sanford, Florida, Martin had grown up in Miami, a diverse city where young black males are not accustomed to suspicion and harassment.  In a few moments, Martin would be lying face down on the ground with a hole in his chest.

Zimmerman found Martin suspicious because he was walking too slowly in the rain, and so he called 911. The 911 operator advised him not to follow the person, but Zimmerman did.  Martin’s girlfriend, who was speaking with him on the phone, said she heard Martin ask a person if he was following him.  What happened next is unclear.  Neighbors said they heard an altercation, then cries for help, and finally, a gunshot.
[Read more…] about Trayvon’s Killing Exposes Festering Wounds of Racism