The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Monthly Archives: November 2011

Political Parties Stir Up Controversy Over Supreme Court’s Review

Having given the appropriate amount of patriotic thanks over the holiday, Congressional leaders are back at it again this week, this time arguing over which members of the Supreme Court should be allowed to hear the up-coming health care reform case.  Despite having lauded the Court’s decision to settle the health care debate once and for all just last month, Republicans and Democrats alike are attempting to discredit Supreme Court judges who they feel might be detrimental to their cause.

This new squabble was kicked off last week when House Judiciary Committee Chairman Lamar Smith (R-Tex.) called for an investigation into the role that Justice Elena Kagan played as Obama’s solicitor general prior to joining the Supreme Court.  While Kagan denies that she was involved in drafting or preparing the current health care reform legislation, Congressional Republicans contend that emails recently released to them as matters of public record paint a different picture.  Though none of these emails conclusively show that Kagan was directly involved in the development of the bill, at least one email, sent from then-Deputy Solicitor General Neal Katyal, states that she made efforts to ensure that her office was involved in the strategic process.  Interestingly enough, had she not been appointed to the Court, Kagan would be defending the health-care law at the Supreme Court rather than deciding whether it is constitutional.

Less than an hour after Congressman Smith requested further information on Kagan’s background, Congressional Democrats launched an attack at Justice Clarence Thomas.  In this case, Rep. Earl Blumenauer (D-Ore.) and Rep. Louise Slaughter (D.-NY) sent a letter to the House Judiciary Committee requesting that the committee hold hearings on alleged ethical violations surrounding Thoma’s past financial history.  By showing that Justice Thomas left his wife’s income out of his required financial disclosure reports for a number of years–a mistake he has already admitted to and made efforts to correct–the Democrats hope to show that he lacks the moral integrity required of a Supreme Court judge and that he should therefore not be involved in the up-coming heath care hearing.

It remains to be seen how (if at all) this political-motivated name calling will effect the Supreme Courts actions when reviewing the health care legislation.  However, given that Supreme Court justices cannot be compelled to step down from a case, but rather must make the decision on their own, it seems more likely than not that all of this bantering will ultimately result in a whole lot of nothing.  At the end of the day, this most-recent conflict is little more more than an attempt by legislators to exert whatever influence they can on the judicial process.  Based on Congress’ track record as of late, I wouldn’t advise either party to hold their breath.


More Than Just a Mandate: taking a closer look at the health care debate

As someone who regularly peruses the legal blogosphere, tirelessly searching for tidbits of real reporting among a deluge of repetitive editorializing, I was pleased to find that a number of intelligent articles have been written regarding yesterday’s announcement that the Supreme Court will hear challenges to the Obama administration’s health care plan.  What many of these articles fail to do, however, is to take an in-depth look that this potentially historic announcement from a legal prospective.  So, at the risk of editorializing, let’s take a few minutes to peer a bit deeper into the legal reasoning behind, and potential consequences of, the Supreme Court’s decision to hear arguments in this case.

To begin at the beginning, here is a brief timeline of the events that have lead to yesterday’s announcement:

December 24, 2009:  The Senate (with a vote of 60-39) votes to pass the Patient Protection and Affordable Care Act.

March 21, 2010: The House (voting 219-212) votes to pass the act, thereby sending it on to President Obama to sign into law.  This vote marked the first time in modern history that a piece of legislation passed through both houses of Congress without a single vote from Republican law makers.

March 23, 2010:  President Obama signs the Patient Protection and Affordable Care Act into law.  The new law is also known as PPACA, or “Obamacare.”

September 2010-January 2011:  A majority of U.S. states, as well as a number of independent organizations file suit, both individually and jointly, against the United States.  Though these suits challenge various aspects of the health care bill, the major issue is whether Congress has the Constitutional power to mandate that all American citizens buy health care plans. Chief among these law suits was Florida et al v. United States Department of Health and Human Services , a joint suit representing 26 states.

January 1, 2011: U.S. District Jude Roger Vinson, ruling in the above mentioned case, declares the individual mandate clause of the health care act unconstitutional.  Given that the PPACA was not written in such a way that sections of it could be excluded or nullified without the entire act being so treated, Judge Vinson further concludes that the entire act must be struck down as unconstitutional.

August 12, 2011: A three-judge panel from the 11th Circuit Court of Appeals reviewed Judge Vinson’s ruling.  In their conclusion, the Court of Appeals chose to uphold it in part and to overturn it in part.  The Court found that while the individual mandate was unconstitutional, the rest of the Act was not in violation of the Constitution.  In other words, the Act is legal as long as the individual mandate is taken out.

September 2011: Multiple petitions for writs of certiorari were filed with the Supreme Court.  These petitions were essentially formal requests to the Supreme Court to act as an arbitrator in the case and were filed by parties on both sides of the debate.

November 14, 2011:  The Supreme Court granted the writ of certiorari and agreed to hear argument on the issue of whether the Obama administration’s health care plan is enforceable under the Constitution.

The debate at hand is one that is largely, if not entirely, based on Constitutional interpretations and broader theories of legal reasoning and governance.  On the one hand, the Obama administration and other supporters of the Act contend that Congress has the power to mandate health care and that the passage of the Act constitutes a historic achievement that will provide a better future for all Americans.  Conversely, Republicans nationwide, as well as other groups who oppose the Act, have deemed its passage a profound abuse of Congressional power and a classic example of the dangers of ever expanding Federal government.  It is their view that the Act will open the door to further degradation of individual rights and liberties, as well as to future weakening of states’ rights.

With a number of federal courts found fault with in the Act, the ant-Obamacare view has gained considerable coverage in the press as of late.  However, that is not to say that the argument for the PPACA has fallen on deaf ears.  In fact, the Obama administration gained what is perhaps its biggest legal victory just last week when the D.C. Circuit Court of Appeals upheld the constitutionality of the PPACA.   By applying an “originalist” interpretation of the Constitution and a restrained view of judicial power, the Court concluded that the Commerce clause of the Constitution—which states that “Congress shall have Power … To regulate commerce … among the several states”—enables the legislator to enforce the individual mandate aspect of Obama’s plan.  Defining “regulate” as “to prescribe certain measures,” or “to adjust by rule or method,” D.C.’s Judge Silberman concludes that the Commerce Clause permits the Federal government to “require action.”  Additionally, the D.C. judge addressed the concern that the Act’s individual mandate is a violation of individual rights, guaranteed by the Due Process Clause of the Constitution, by stating that the following:

“[The individual mandate] certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race…The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.”

While many disagree with this interpretation of the Constitution, the D.C. Circuit Court’s finding remains salient simply because it adds a new and intellectually-exciting component to the health care debate.  With high-level courts weighing in with hard-hitting, Constitutionally-based arguments both for and against the Act, the national debate over health care reform has transformed into a political and legal battle that cuts right to the heart of the American system of government.  For a nation that constantly complains of disenfranchisement and of feeling removed from the political process, no issue could be better suited to spark a response from the masses.  Not only is the on-going debate on Obamacare tremendously important on the individual level (its outcome will undoubtedly effect all Americans), but it also provides the platform for a more open debate on American political values and the future of American governance than this country has seen in some time.  Individually, the concern might be “Do I, as a citizen, want to be forced to buy healthcare under penalty of law?”  Nationally and collectively, however, the question at hand is, “What type of America do we, the people, want to live in: one in which Federal powers dictate private actions in an effort to provide equality of outcome, or one in which individual liberty remains sacrosanct and private effort and market forces, not Federal mandates, are left to rule the economic world?”

Regardless of how we chose to weigh in on this question, what is important is that we actually weigh in.  It is not every day that we, as a country, are presented with such an ideal platform through which we can debate issues that are of fundamental importance to the future of our great nation.  Rather than allowing ourselves to get caught up in the endless sea of pundit chatter or turned off by the prolonged nature of the political process, we must remain patiently and vigilantly engaged in this issue.  It is essential that the people of America join in this debate and make our voices heard, for there is much more at stake here than just health care reform.  The way this Act is addressed has the potential to either reaffirm or redefine the structure through which we govern ourselves.  As such, the issue at hand is about more than just how the Supreme Court will decide, it is about how the future ofAmerica will be shaped.

Debate Over Traffic Tickets Leaves Virginia Drivers Between a Rock and a Hard Place

As was reported this week by Virginia Lawyers Weekly, widespread complaints about “speed traps” have sparked a heated debate between legislators over the division of funds generated by traffic fines in the Commonwealth.  Under the current system, local governments have the ability to pass their own traffic laws, as well as to set fines and punishments for the violation of these laws.  Though these local laws often parallel or mirror Virginia state statutes, the key difference between the two is one of financial allocation.  In cases where the driver is charged with a violation of the state statute, the monies generated in court are allocated to the state.  These funds assist with teacher’s retirement funds and school construction, among other things.  Considering that thousands of tickets are handed out in Virginia each weekend, the total revenue generated can easily creep into the tens of millions of dollars.

Conversely, if the offending driver is charged under the local version of the law–an option that is up to the discretion of the officer–the funds generated are given to the local government to dispose of as it pleases.  Local government officials contend that the funds are still primarily put towards improving education and to funding other local necessities, which helps to keep local real estate and property taxes from rising.  However,  many argue that allowing officers to charge drivers under the local ordinance ultimately disadvantages citizens because the practice creates an incentive for police departments to set up “speed traps” as a means generating revenue for the locality.

From a legal standpoint though, this debate raises some very interesting questions.  Primary among them is the issue of what is best for the client: being charged under the state statute or the local ordinance?  On the one hand, advocating for the removal of the local ordinance option (and using state statutes only) would seem beneficial to all in that it would remove the incentive for localities to over-use “speed traps.”  Such a move would have the potential to drastically reduce the number of tickets issued in the Commonwealth and to save drivers millions in court costs and fines each year.

On the other hand, a closer, more pragmatic look at the systems reveals that the local ordinance option actually has some significant benefits to Virginia drivers.  Chief among these advantages is that while local versions of state statutes can assess fines for traffic violations, the D.M.V. does not assign points to a driver’s record for the violation of local ordinances.  To a number of Virginia drivers, this is a much appreciated alternative, since they can simply pay the fine and put the incident behind them without having to worry about accruing points.

While I can see the merit of both sides of this argument, I am very curious to see how the rest of Virginia feels on this issue.  Would you prefer to oppose the ordinance option in hopes of reducing “speed traps”, or would you prefer to still have the option of avoiding points if you are charged?  The attorneys at Westlake Legal would love to know!

“In God We Trust”…Seriously, we promise.

As the Washington Post happily announced yesterday, members of Congress have finally managed to put partisan differences aside, show some much-desired unity, and actually pass a bill with relative ease.  Though House Democrats and Republicans remain divided on major economic issues, members of Congress have confidently reaffirmed that “In God We Trust”  is STILL the nation’s motto.

Speculated to have been written in response to President Obama’s botching of the national motto last year, the passage of this most recent bill marks the 3rd time the national motto has been declared by Congress in the nation’s history and the second time it has been “reaffirmed” in ten years.  And to think, this particular re-reaffirmation only took 25-35 minutes of passionate political debate to hash out.  Perhaps now that this pressing issue of patriotic slogan-making has been cleared up our elected officials can get back to work solving, or at least arguing over, issues of real importance that are relevant to real Americans.