Thursday, June 28, 2012

Obamacare Mostly Constitutional, Says Divided Supreme Court

The much anticipated decision is in.  A divided court upheld the Affordable Care Act, dubbed "Obamacare."
The Supreme Court held that under the Act, Congress did not intend the penalty assessed if individuals did not obtain health insurance to be a tax, but that Congress's intentions were not controlling on the Court as to whether the penalty was actually a tax.  Thus, by ruling that the penalty was not intended to be a tax, the Court held that the Anti-Injunction Act is not implicated.  What this means, is that the Court did not dismiss this case and tell appellants to wait until they have actually paid the penalty before coming back to the Supreme Court and asking for a refund. Rather than having to wait until 2014 to decide the constitutionality of the individual mandate/penalty, the Court chose to dispense with the challenge to the ACA now.
The Court next held that Congress could not impose the individual mandate under the Commerce Clause.  But, the Court held, the Act can be upheld as arising under Congress's taxing authority.  In rejecting the Commerce Clause as authority for the individual mandate, the Court explained that the ACA did not regulate commerce so much as it required individuals to engage in it. So a mandate to purchase broccolli is not the next move for Congress.  This is the slippery slope where the Supreme Court drew its line.  The individual mandate to purchase health insurance is nevertheless constitutional.  In upholding the mandate, the Court explained that the tax was not so large that there is no choice but to purchase health insurance, and that not purchasing insurance has no legal consequences beyond payment of the tax.
The Court struck down the penatly assessed to States that choose not to participate in the expansion of Medicaide as being an unconstiutional use of Congress's spending power.  This the Court ruled however, does not invalidate the remaining provisions of the ACA.


Monday, June 25, 2012

Arizona's Immigration Law Is Mostly Unconstitutional, Says US Supreme Court

The United States Supreme Court handed down its long anticiated ruling in Arizona v. Untied States, putting at issue Arizona's controversial immigration law, SB 1070, passed in 2010.  The Ninth Circuit struck down the law in its entirety, and Arizona appealed to the US Supreme Court. Today, the US Supreme Court struck down three of four provisions as violating the Supremacy Clause of the US Constitution.
The Arizona law sought to criminalize the failure to comply with federal registration requirements for illegal alieans, and seeking employment or engaging in work in Arizona while being an illegal alien. SB 1070 also gave authority to Arizona law enforcement to arrest without a warrant anyone who the officer had probable cause to believe is an illegal alien, and to stop, detain or arrest to determine a person's immigration status.
The Supremacy Clause of the Constitution has been interpreted to provide that in areas where the federal government intends that its laws occupy the entire subject matter of that law, no state can enact laws that attempt to address that subject matter.  It has long been held that the federal government occupies the entire subject matter of immigration and that states cannot regulate this subject matter.  In striking down the criminal elements and the authority to arrest without a warrant granted by SB 1070, the US Supreme Court pointed out that the federal government has established that illegal alien status is a civil, not criminal matter, and that the federal government has the sole discretion to make such policy decisions regarding immigration and its enforcement.  The Court stated, "Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime."  The Court went on to state that the federal government has the power to consider equities in forming policies regarding enforcement of the federal immigration laws.
This particular point gets to the heart of the matter.  Arixona's SB 1070 sought to make criminals of immigrants, who may be hard working, otherwise law abiding residents.  This is not Arizona's call. This is the federal government's call.  The scare tactics employed by Arizona law makers that illegal aliens are all rampant, violent criminals, casts a net that ensnares workers trying to make a living and who make a positiove contribution to society.  Enacting laws based on fear and ignorance harken back to some of the darker moments in human history, and should have no part in this country's democratic society.  Additionally, the Supremacy Clause prevents the 50 states from enacting 50 different sets of immigration laws, as the federal government already has a body of law in place. 
The Court upheld the provision of SB 1070 that authorizes Arizona law enforcement to "make a 'reasonable attempt . . . to determine the immigration status' of any person they stop, detain, or arrest . . ."  The Court emphasized that SB 1070 provided that the "stop and check" provision could not be the result of racial profiling and that communication between federal and state authorities was inherent and imperative. 
Despite holding the challenge to the stop and check provision of SB 1070 as being premature because Arizona courts did not have an opportunity to interpret how it will be enforced, the Court specifically left open future challenges to the stop and check provision based on Arizona's enforcement and interpretation of its law.


Thursday, June 21, 2012

George Zimmerman Just Keeps Talking

In a stunning move, George Zimmerman's attorneys have now made the decision to release Zimmerman's statements to police following the February 26, 2012 killing of Trayvon Martin.  This move comes on the heels of the release of the jailhouse calls between Zimmerman and his wife Shellie, in which it appears the two were colluding to make false statements to the court.

How could it possibly help Zimmerman's case to release his own words to police the day after the public heard audio tape of Zimmerman and Shellie talking in code and trying to hide money? Why would Zimmerman's attorneys think the public is likely to believe Zimmerman's statements to police at this moment in time? Why when Zimmerman's credibility is in question?

In addition to his family and friends, Zimmerman would do best to ask his attorneys to stop speaking publicly too.

Update 6/28/12:
Florida prosecutors have now released more evidence in the Trayvon Martin killing.  The police report of the February 26, 2012, incident has been made public, reports the Huffington Post, under pressure from the media, despite both prosecutors' and Zimmerman's attorneys' objections.  Apparently, now Zimmerman's camp sees the wisdom in clamming up.


Tuesday, June 19, 2012

George Zimmerman Is His Own Worst Enemy

Despite the majority of public opinion appearing to believe that George Zimmerman is guilty of the unjustified homicide of Trayvon Martin, there is apparently a significant, if silent, segment of the public that believed in Zimmerman’s innocence.  The Los Angeles Times recently reported that Zimmerman was able to collect more than $200,000 from his now defunct website, The Real George Zimmerman, indicating belief in his innocence.  One prominent Southern Baptist leader,  recently defended Zimmerman and criticized prominent african-american leaders, including President Obama, for their responses to the Trayvon Martin tragedy. So, does Zimmerman’s defense have legs under the Florida statute?
Florida’s Stand Your Ground statute  is very liberal in its protection of the right to self defense.  The Florida statute states “a person is justified in the use of deadly force and does not have a duty to retreat if . . . [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony . . .”   Details reported to the media about the events that night have so far been scant, but what has been made public are: the 911 call Zimmerman made, the telephone conversation between Martin and reported by his girlfriend at the time of the incident, and a few near-by witnesses who reported someone screaming for help and saw two people fighting.  Based on what has been made public, and despite Zimmerman knowing law enforcement was on the way, and despite the fact that Zimmerman followed Martin after being specifically told not to by the 911 operator, Zimmerman might have had a chance of convincing the judge or a jury to give him the benefit of reasonable doubt who might then have dismissed the charges; might have, that is, if Zimmerman’s recent alleged actions did not appear that he had gone about “working the system.”
Regardless of what really happened that night on February 26, 2012, when Trayvon Martin was killed, Zimmerman now has his work cut out for him in trying to gain back his freedom.  The recent release of the jailhouse calls between Zimmerman and his wife Shellie Zimmerman do nothing to help Zimmerman’s case in the court of public opinion.  Before each of Zimmerman’s calls was connected to Shellie, a recording advised, “This call will be recorded and subject to monitoring at any time.”
Despite this warning, in the calls between the two that were released, it appears Zimmerman thought he was being stealthy, and talked in what appears to be code: while Shellie was at the bank, she and Zimmerman talked about making “transfers.”  Zimmerman advised Shellie to make transfers from “Peter Pan” to “his,” and then from “his” to Shellie’s “every day,” and to pay off all the credit card bills.  Zimmerman talked about having “at least a hundred dollars” in his account and Shellie talked about having problems wiring “ten dollars” to Zimmerman’s account, and Zimmerman reminded Shellie to “wire ten dollars” everyday.  Shellie advised she “found a house” and Zimmerman advised to “put it under Jay’s name.”  Shellie and Zimmerman also discussed whether she “had access to ten dollars,” could “transfer ten dollars,” and to put “ten dollars in the box.”  Shellie reported going back to the bank “to do that thing” and confirmed a debit card was ordered.  Zimmerman advised Shellie he “asked Ken to double up on it, ten dollars in the morning and ten dollars in the evening,” that way Shellie could take “ten for you and ten for Suzie,” and clarified “he can only take it from Peter Pan to mine.”  Zimmerman reminded Shellie to “make the transfers.”  At one point, discussing posting bond, Zimmerman advised “if it’s more than fifty, just pay the ten percent” to a bondsman and then Shellie asked, “you don’t want me to pay a hundred dollars?”
It doesn’t take a genius to infer what “Peter Pan” means, what amount “ten dollars” really is and how much “a hundred dollars” really is.  If Zimmerman is this emboldened, on a line he knows is monitored by law enforcement, how truthful has he been about the February killing of Martin?  Glaringly absent from these calls is any concern for Martin’s family.  After this latest development, at least one analyst believes that public opinion in Zimmerman’s favor will diminish.
Zimmerman would be best advised to stop speaking publicly, and to ask his friends and family to do the same Share