Thursday, June 28, 2012

Minnesota Supreme Court Rules Against DWI Suspects' Ability to Challenge Intoxilyzer's Accuracy

In a landmark decision announced yesterday, the Minnesota Supreme Court ruled that DWI
 defendants in Minnesota did not have a right to discovery of the manufacturer's source code in order to challenge the accuracy of the Intoxilyzer 5000 machine.  Since this machine, the predominant method for testing breath alcohol samples in Minnesota, is self-diagnosing in terms of its accuracy, the court's ruling in essence greatly curtails the types and possibilities of success to challenges over the accuracy of the machine's results.

I give credit to Justice Page for his dissenting opinion, who seemed to be the only Justice concerned with the rights of criminal defendants in this instance.

Wednesday, June 27, 2012

Supreme Court Poised to Release Decision on Constitutionality of Affordable Care Act: One Last Look Back at the Commerce Clause and the Historical Origins of the Individual Mandate

Conservatives have bemoaned that the Patient Affordable Care Act (derisively referred to as Obamacare) is the "most massive transfer of power to the Executive Branch of government that has ever occurred".  Conservative critics have long claimed that there is no language in the U.S. Constitution giving Congress the authority to regulate health care.While it is true that there is no such explicit language contained in the Constitution itself to regulate health care, any Constitutional scholar, or law student for that matter, will tell you that there is a long history of legal precedent under the Commerce Clause, Article I Section 8 Clause 3 of the Constitution of the United States, granting Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. The commerce power is an enumerated power of Congress and the Supreme Court has interpreted it as an express grant of authority to Congress and an affirmative limitation on the rights of the states to regulate commerce within their own borders.

The scope of the commerce power depends on the interpretation of “commerce”. If construed sufficiently broadly, the commerce power can give Congress the power to legislate in many areas that otherwise would fall within the scope of the states’ police power. The Constitution does not define the term and the Supreme Court therefore has great flexibility in deciding cases involving the Commerce Clause and enormous power to influence the balance of state versus federal power.

Survey of Notable Supreme Court Commerce Clause Cases

In Gibbons v. Ogden (1824), New York gave Livingston and Fulton the exclusive right to operate steam ships on state waters and Livingston assigned his rights to Ogden. Ogden sought to enforce the exclusive right against Gibbons. The Supreme Court held that the states cannot pass legislation for the regulation of internal affairs that would normally fall within the scope of the states’ police powers, if such legislation is inconsistent with federal law enacted under the commerce power.
In Cooley v. Board of Wardens (1851), Congress passed an Act in 1789 stipulating that ship pilots would continue to be regulated under state law until Congress passed legislation to the contrary. In 1803 Pennsylvania enacted legislation requiring all ships to engage local pilots to guide them through the harbor at Philadelphia. The Supreme Court upheld the statute, holding that the Commerce Clause does not prohibit Congress from conferring the power to regulate interstate commerce upon the states.
In The Daniel Ball (1871), Congress passed an Act in 1838 prohibiting the operation of steam ships on the internal navigable waters of the United States without a license. The Daniel Ball was fined $500 for operating without the license. The Supreme Court held that Congress has the power to regulate the intrastate transport of goods if those goods are bound for or originated from another state.
In Hammer v. Dagenhart (1918), Congress passed the Child Labor Act in an attempt to combat the use of child labor in factories. The Supreme Court held that Congress did not have the power under the Commerce Clause to regulate goods produced through child labor and transported in interstate commerce. The Court held that manufacture is not commerce and the exclusion of goods was permitted only when it involved the nature of the goods themselves, not the manner in which they were made.
In Baldwin v. G.A.F. Seelig, Inc. (1935), New York enacted the New York Milk Control Act which established a price fixing scheme for transactions between milk producers and dealers. Darby refused to grant Seelig a license unless it agreed to comply with the law. Seelig refused and challenged the law as invalid in light of the Commerce Clause. The Supreme Court held that a state regulation imposing a minimum price fixing scheme to benefit the local community was an unconstitutional burden on interstate commerce.
In NLRB v. Jones & Laughlin Steel Corp. (1937), Congress enacted the National Labor Relations Act of 1935 which prohibited unfair labor practices affecting interstate commerce. Jones & Laughlin Steel was charged under the Act for allegedly discriminating against union members. The Supreme Court held that Congress has the power to regulate manufacturing activities that have a significant effect on interstate commerce, including activities that burden interstate commerce or its free flow.
In South Carolina State Highway Department v. Barnwell Brothers, Inc. (1938), South Carolina passed a law imposing limits on the weight and width of trucks on its state highways. The Supreme Court upheld the state law and held that states may regulate trucks to promote safety and prevent damage to highways, provided they do not discriminate between trucks traveling in interstate commerce and those traveling only in-state.
In United States v. Darby Lumber Co. (1941), Congress passed the Fair Labor Standards Act of 1938 establishing a minimum wage and maximum hours for employees involved in producing goods for interstate commerce. Darby was charged under the Act and challenged the law on the grounds that the regulation of in-state manufacturing activity was unconstitutional for exceeding Congress’s authority under the Commerce Clause. The Supreme Court upheld the statute, holding that Congress can exclude from interstate commerce articles which deteriorate the health, welfare, and morals of the nation. Congress may apply its own vision of public policy in excluding articles even though the state in which the goods are produced has not deemed it necessary to regulate their use.
In Wickard v. Filburn (1942), Congress set quotas on wheat production through the Agriculture Adjustment Act. Wickard exceeded his quota when the amount of wheat produced for his own use was included with the amount he sold. The Supreme Court held that Congress has the power to regulate local intrastate activities, such as the production of wheat for personal use, if they have an aggregate effect on interstate commerce.
In H. P. Hood & Sons, Inc. v. Du Mond (1949), New York passed a law stipulating that licenses for new milk processing plants could not be issued unless the Commissioner was satisfied that grant of the license would serve the public interest and would not cause disruptive competition. H. P. Hood & Sons opposed the law on the grounds that it imposed an unconstitutional burden on interstate commerce. The Supreme Court found the law unconstitutional, holding that a state regulation is unconstitutional under the Commerce Clause if its purpose and effect would be to reduce the volume of interstate commerce for the benefit of the local economy.
In Katzenbach v. McClung (1964), Congress passed the Civil Rights Act of 1964 which prohibited race based discrimination by restaurants serving food obtained through interstate commerce. The Supreme Court held that Congress can regulate business activity that is purely local, if any part of the activity affects interstate commerce, if the aggregate activity has a substantial effect on interstate commerce.
In Hicklin v. Orbeck (1978), Alaska passed the Alaska Hire statute requiring that qualified Alaska residents be hired in preference to non-residents for jobs related to the oil and gas industry. The Supreme Court found the law unconstitutional, holding that the Commerce Clause prohibits the states from preferring its own residents in utilizing natural resources located within the state but bound for interstate commerce.
In United States v. Lopez (1995), Congress enacted the Gun-Free School Zones Act of 1990 (GFSZA) prohibiting the possession of firearms in school zones. Lopez brought a loaded handgun to school and was charged under the Act. The Supreme Court held that the commerce power only grants Congress the ability to regulate the use of the channels and instrumentalities of interstate commerce, and other activities having a substantial relation to or a substantial effect on interstate commerce. The Act was held to unconstitutional for exceeding the power of Congress under the Commerce Clause. has noted:

"Other lawyers who believe, or don’t believe, that Congress has the authority to regulate health care have engaged the argument more cogently. The dispute hinges mainly on differing interpretations of the commerce clause of the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Writing about the Clinton administration’s proposed effort to overhaul health care, the Justice Department’s Office of Legal Counsel said in 1993 (with quotes from a 1940 Supreme Court decision):
Justice Department Office of Legal Counsel, 1993: The American health care industry is one of the largest and fastest growing segments of the American economy, and it has the most direct and crucial impact on the lives of all Americans. Spiralling health care costs and inequities in the provision of health care services have an immediate and massive effect on the national economy and thus upon interstate commerce. As a result Congress unquestionably possesses the power "to deal directly and specifically" with health care in order to obtain "social, health [and] economic advantages" for the American people.
Since the OLC memo was written, there have been a couple of important Supreme Court decisions striking down congressional statutes for being insufficiently grounded in the commerce clause: One law banned the possession of firearms in the vicinity of schools, while another gave victims of gender-motivated crimes the right to sue their attackers in federal court. But the activities being regulated by those laws were not as clearly economic as the purchase and delivery of health care.
The Right to Buy Insurance
Critics argue particularly strongly against the requirement in health care legislation pending in both the House and Senate that nearly all citizens buy health insurance. A counter-argument is that the success of the whole systemic overhaul depends on the individual mandate being part of the scheme, meaning the requirement is authorized by the commerce clause. But the uncertainty of this approach was voiced by the Congressional Research Service, which recently wrote (as reported by the New York Times):
CRS: Whether such a requirement would be constitutional under the commerce clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.
Another argument is made by critics that the government can’t make an individual buy something just because he or she exists. The "economic liberty" argument harkens back to the early 1900s, when the Supreme Court, in Lochner v. New York, threw out a New York law limiting the number of hours per day that a baker could work. The court said such regulation amounted to "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." But the Lochner era had moderated by the late 1930s, and legal experts consider the current Supreme Court unlikely to produce a majority in favor of reverting to early 20th century interpretations in this area. Mark Hall, professor of law and public health at Wake Forest University’s law school, writes that there is no fundamental right to be uninsured. "The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke constitutional protection," he says.
Hall: Under the Due Process Clause [of the 5th Amendment], no Supreme Court decision since 1935 has struck down any state or federal legislation for infringing economic liberties, and any such action would be radically inconsistent with current constitutional doctrine.
Hall also notes that the Takings Clause (which is also found in the 5th Amendment, and prohibits the government from taking private property for public use without "just compensation") might form the basis of a challenge, but writes that it’s not at all clear that mandating a private purchase constitutes a "taking."
Democrats in the House and Senate have framed the mandate as a tax provision, which might have the effect of helping the bill dodge some of the constitutional showdowns. After all, lawmakers have the power "to levy taxes and spend funds" for the "general welfare of the United States." In the House bill, the amount is a percentage of income, with some adjustments. In the Finance Committee version, it is a flat fee.
But David Rivkin Jr. and Lee Casey, lawyers who served in the Reagan and George H.W. Bush administrations, say that calling the fee a "tax" is "congressional trickery" and that the levy is "clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power." They add that "a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans."
Republicans in some states have moved to try to outlaw the individual mandate, saying the federal government is overreaching its authority. But even some legal thinkers who question the constitutionality of health insurance mandates believe the states’ rights argument would make a weak case.
We may find out. There’s little doubt that if the health care legislation passes and requires citizens to buy health insurance, it will be challenged in court. The final pronouncement may well be up to the nine justices who preside in the chamber right across the street from the Capitol.
P.S. The Kitchen Sink
Oh yes, almost forgot. Connelly also spools out a list of evils supposedly caused by the bill, providing support for none of them. We’ve dispatched many of these assertions before. He claims that the bill provides for:
  • "…rationing of health care," especially for seniors. That’s false, as we’ve explained many times.
  • "…free health care for illegal immigrants." Actually, it prohibits illegal immigrants from getting federal subsidies for their care. They could still get care at any hospital emergency rooms that would treat them, which is true currently, too.
  • "…free abortion services." It’s true that private insurance purchased with the help of federal subsidies could cover abortions, as could a proposed "public option" plan run by the government. But neither would be free. The bill also says abortions would have to be paid for with money from policyholders’ premium payments, and not taxpayer money.
  • "…probably forced participation in abortions by members of the medical profession." That’s wrong. H.R. 3200, the bill Connelly is writing about, continues "conscience" provisions in current law that allow health care workers to decline to provide abortions.
As for Connelly’s assertions that the bill will "eventually force private insurance companies out of business" and "put everyone in a governrment-run system," they are Connelly’s speculation, and there is nothing in the bill to that effect. Likewise the claim that "ultimately" all personal health care decisions will be made by "federal bureaucrats." Connelly also says that "hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled." That too is conjecture. To some degree, that’s what happens today under Medicare, though Connelly doesn’t mention it. The bill wouldn’t take it beyond that program."

As the country braces for what is perhaps the most political, if not controversial decision by the Supreme Court since Bush v. Gore, just one more reminder that the personal mandate was originally conceived by Republicans back in 1993 as a response to Hillarycare and the Republican bill was co-sponsored by the likes of Orrin Hatch.  Years later, the personal or individual mandate as it is now known and has become the focal point of all the conservative and Republican criticism over the Patient Affordable Care Act, was the center piece of then Governor Romney's landmark health care reform in Massachusetts.

Oh how the times have changed but the hypocrites still wear the same old stripes!

Sources article by Viveca Novack citing:

Dellinger, Walter and H. Jefferson Powell. "Constitutionality of Health Care Reform." Office of Legal Counsel, U.S. Department of Justice. 29 Oct 1993.
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381(1940).
United States v. Lopez, 514 U.S. 549 (1995).
United States v. Morrison, 529 U.S. 598 (2000).
Lochner v. New York, 198 U.S. 45 (1905).
United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944).
Hall, Mark. "Legal Solutions in Health Reform: The Constitutionality of Mandates to Purchase Health Insurance." O’Neill Institute for National and Global Health Law, Georgetown University.
Rivkin, David B., Jr., and Lee A. Casey. "Mandatory Insurance is Unconstitutional." The Wall Street Journal. 18 Sept 2009.
Davey, Monica. "In Some States, a Push to Ban Mandate on Insurance." The New York Times. 29 Sept 2009.
Seelye, Katharine Q. "A Constitutional Debate Over a Health Care Mandate." The New York Times. 26 Sept 2009.

Tuesday, June 26, 2012

Adios M.F.ers: Republicans War on Latinos and Immigrants Seals Their Fate

I have to laugh at all the neanderthal Republicans falling all over themselves with their self-congratulatory bullsh!t over what they try to sell to the public as a great victory in the Supreme Court decision announced yesterday in Arizona v. United States.  Anyone capable of reading and the tiniest modicum of legal knowledge would know that the Supreme Court's decision was in actuality a stunning repudiation of Arizona's short sighted and intolerant, racist tinged legislation aimed at keeping the state a private country club for rich old snow birds.

The only aspect of the Arizona law that the court left intact was the requirement that police and law enforcement officers verify the legal status of suspected illegal aliens if they have reasonable suspicion that the person(s) encountered while investigating a separate crime or otherwise valid traffic stop. Since the Supreme Court clearly stated that it was premature to determine at this time if the law as applied is constitutional due to the lower courts issuance of an injunction, the court dissolved the injunction but warned that it could still find the law unconstitutional once it is implemented.  Some great victory.

 Now the authors and proponents of the legislation would have you believe that since the law explicitly states that racial profiling is prohibited in forming the reasonable suspicion and is itself a violation of the law, all is hunky dory.  However, it is not hard to come up with a scenario where one of Sheriff Joe's rednecks in Maricopa County pulls over a person of Hispanic descent who speaks with a Spanish accent  and unreasonably detains or arrests the person only to find out the person is in actuality an American citizen who forgot their wallet at home. To quote the Los Lobos song and great Ruthie Foster cover, it's only a "Matter of Time".

Wednesday, June 20, 2012

Rubio and Republicans Cry Foul on Immigraton Issue: Who Are They Kidding?

After spending the last two election cycles bashing immigrants in this country of immigrants, chinless Mitch McConnell and his hopeless band of hypocrites would have you believe that Cuban American Republican Senator Marco "I only wear Polo" Rubio was on the verge of unveiling proposed legislation for comprehensive immigration reform.  Their critique goes something like this:  President Obama had four years and at least, for a brief time, majorities in both houses of Congress to pass comprehensive immigration reform but frittered away said opportunity only to sign an executive order that is nothing more than an election year gimmick.

Well, to quote a famous inebriated Irishman, let me say "Oh Really Now!"  The Republicans controlled both houses of Congress from 1994 until 2007 and the White House for eight years under Georg W. Bush and never lifted a finger as far as immigration reform was concerned.  Despite the fact that the Clinton Administration had given his successor all the tools to get tough on the immigration problem in the form of harsh penalties to employers who hire illegal immigrants, the Bush Administration only made the most feeble attempts at enforcement and never sought the ultimate penalty of a $300,000 fine per employee which would have solved the problem overnight.

No, the Republicans would have you believe that their token Latino, Rubio a Cuban American, whose ethnic group and country of origin maintains an exception to U.S. Immigration law shared by no other Latin American country, automatic refugee status.  Coupled with a long term disdain for Democrats due to JFK's debacle at the Bay of Pigs and a legacy of Republican cronyism dating back to when Cuban Americans were the Nixon Administration's bagmen or "plumbers" during the Watergate Conspiracy, there is no incentive for Rubio and the Republicans to come forward with legitimate comprehensive immigration reform at this time, right before an election where they dearly need the support of  their party's racist Tea Bag base.  To quote a famous former Latin American First Lady:  "Don't Cry for Me Republicans" cuz you ain't fooling nobody!

Friday, June 15, 2012

All I want for Father's Day is a Plane Ticket to OKC Today!

Anyone lucky enough to be in Oklahoma City tonight would be an absolute fool not to go see the two headliners on Friday night.  The legendary Arkansas songwriter and guitarist Ernie Cate and his super group Them featuring among others Jimmy Thackery, would be my year's highlight for live music..except following the Arkansans will be one of the best Blues singers of his generation, Sugar Ray Norcia and his crack band the Bluestones featuring Mudcat Ward on Bass and Monster Mike Welch on guitar. No one, not even Tony Bennett understands phrasing like Sugar and his taste in material is impeccable.

One of my most cherished cd's is Ray's 2007 project entitled appropriately "My Life, My Friends, My Music" featuring the Roomful Horns of Rays's era as singer including my dear friend Bobby.  I miss these guys and their music like I miss riding motorcycle in the winter.  It simply doesn't get any better than this!.

Monday, June 11, 2012

Truth: Can You Handle It?

Somebody asked me  
What it really mean to be true  
Somebody tell me  
Tell me what it mean to you
You can’t find it in a TV screen 
You can’t read it in a book no  
You won’t see it in the future  
No matter how hard you look ya’ll
You know truth ain’t hard to find  

You know sitting deep inside 
 And that truth can be in disguise  
You don’t have to go far  
Truth is right where you are
Somebody asked me  
What it really mean to be true 
 Somebody tell me  
Tell me what it mean to you
You’re trying to find it in the government ya’ll 
And look for it in the courthouse too  
You try to speak it in the cell phone ya’ll  
Waiting to hear it on the radio news   

You can’t find it in a whisper  
You can’t find it in a shout no  
You can’t find it in a schoolyard  
They sing about it in the church house
I said truth Getting hard to find You know truth  
Somewhere deep inside  
You know truth It’ll change your mind 
 And truth It may be in disguise  

You don’t have to go far  
Truth is right where you are
Got to got to got to got to got to got to got to  
Gotta have a little truth now
  Little truth now 
 How bout a little bit of  
How bout a little bit of 
Just a little bit of truth now  

Somebody somebody somebody tell me (truth can’t hide it truth can’t fight it)

  (c) Ruthie Foster:  "Truth"

Wednesday, June 6, 2012

Racine: Wisconsin's Silver Lining as Democrats Take Back Control of State Senate in sole Recall Victory

How much do I love Racine, Wisconsin?  Let me count the ways: 

5.  The Samurai Slam; 

4.  The Salmonorama;

3.  July 4th Keg parties at Meredith Funeral Home;

2.  Home town of great friend;

 and the Number 1 reason I love Racine Wisconsin:

"RACINE— Democrat John Lehman has defeated Republican Senator Van Wanggaard for the 21st District Senate seat.
Senator Van Wanggaard was showing a lead throughout Tuesday night, June 5th, but high turnout in Racine helped tip the scales..."

"Democrats took back control of the Wisconsin Senate overnight, after one of four Republicans in yesterday’s recall elections went down to defeat. Racine Republican Van Wanggaard lost to the incumbent he unseated in 2010, Democrat John Lehman. Lehman’s victory margin was just 779 votes out of almost 72,000 cast...."

The KKK Took Wisconsin Away


Next door in Wisconsin
They had an election the other day.
But the message never got there
It never got there
It never got there, they say

The KKK took Wisconsin away
They took her away
Away from me
The KKK took Wisconsin away
They took her away
Away from me

Now I don't know
Where Wisconsin can be
They took her from me
They took her from me
I don't know
Where Wisconsin can be
They took her from me
They took her from me

Ring me, ring me ring me
Up the President
And find out
Where Wisconsin went
Ring me, ring me, ring me
Up the FBI
And find out if
Wisconsin's alive
Yeah, yeah, yeah

o o o o o o
o o o o o o

Next door in Wisconsin
They had an election the other day.

The KKK took Wisconsin away

They took the cheese state
They took Wisconsin away

Gabba Gabba:   Hey Wisconsin Go F#@k Yourself!