The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

VA Senator Introduces Bill to Abolish Court of Appeals

According to a report recently published by Virginia Lawyers Weekly,  Virginia Senator Creigh Deeds (D-Bath Co.) has introduced a bill that calls for the abolition of the Virginia Court of Appeals.

The bill, Senate Bill 630, would do away with the Commonwealth’s intermediate appeals court starting October 1, 2012, thereby restoring the Virginia Supreme Court’s authority to hear all criminal, traffic, domestic and administrative appeals.  Deeds’ proposal is in direct opposition to House Joint Resolution 111, a piece of legislation introduced by Del. Sal Iaquinto (R-Virginia Beach) calling for an expansion of the Court of Appeals’ authority.

Though some see this piece of legislation as an attack on the court, Deeds has been adamant that his actions were not prompted by any ill-will toward the Court, but rather by a desire to promote fiscal responsibility.  According to Deeds, the abolition of the Court of Appeals would save the Commonwealth 8 million dollars annually, a significant sum for a state in the midst of wide-spread budget cuts.

The bill has been referred to the Senate Courts committee.


Virginia Judge Sets New Precedent That Favors Expungement

As was reported in this week’s edition of the Virginia Lawyer’s Weekly, Fairfax County Circuit Court Judge Lorranie Nordlund found that a defendant who pleaded guilty to a reduced traffic charge could have the more serious criminal charge expunged.  This ruling sets a new precedent with respect to expungement by adopting a broader interpretation of  Virginia Code § 19.2-392.2, which governs such actions, than courts have been willing to do in the past.

According to the statue, an individual can have their criminal and/or police records expunged if they are acquitted of a crime, if a nolle prosequi it taken, or if the charge is “otherwise dismissed.”   Applying this statue to a case where the defendant was charged with reckless driving (a criminal misdemeanor) but plead guilty to an amended charge of  improper driving (a traffic offense), Judge Nordlund found that the reckless driving charge had been “otherwise dismissed” and was, therefore, able to be expunged.

While it may seem insignificant to some, Judge Nordlund’s decision could prove influential in that it opens the door for untold numbers of Virginians who have previously not sought expungement to now do so.  With this case, Judge Nordlund has laid the foundation for the same argument to be made in any case in which a defendant pleads guilty to a charge that is not a lesser included offense of what they were originally charged with.

As an example, consider a scenario in which a person is charged with reckless driving, but then takes advantage of a plea bargain and  pleads guilty to improper driving.  In this case, since improper driving is not a less included offense of reckless driving, the argument could be made that they are entitled to an expungement of their record.

If you or someone you know has a charge on their criminal record that they would like expunged, please feel free to contact Westlake Legal Group to discuss the various options available.

Virginia DUI Law: The Penalties for A DUI Conviction

As one of the most frequently charged offenses in the Commonwealth of Virginia, driving under the influence (DUI) is a very serious offense.  Since it is a class one misdemeanor, the Court may sentence a person found guilty of DUI to a variety of penalties, depending on the number of subsequent offenses and the amount of intoxication:

First Offense

  • Jail of up to 12 months
    • If BAC is .15 or greater, there is a mandatory jail sentence of 5 days
    • If BAC is more than .20, there is a mandatory jail sentence of 10 days
  • Fine between $250 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in the Virginia Alcohol Safety Action Program (“ASAP”) as well as attendance at Victim Impact Panel
  • A loss of license for one year is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (within 5 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 20 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of and additional 10 days
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (between 5 and 10 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 10 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of an additional 10 days.
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days.
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required.
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Third Offense in a 10 year period

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
    • Mandatory jail term of 90 days. (180 day mandatory jail term if all three offenses committed in a 5 year period).
  • Loss of license indefinitely
  • Court fine of $500-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Fourth Offense within 10 years

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
  • Mandatory jail term of 12 months.
  • Loss of license indefinitely
  • Court fine of $1,000-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Offense by Person under Age 21 (BAC of .02-less than .08)

  • Loss of license for six months.
  • Fine of not more than $500 plus court costs.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history.  Nevertheless, the severity of these consequences often necessitates proper legal representation.  If you find yourself facing a DUI charge,  it is well within your best interest to spend some time researching competent attorneys in your area.  As always, feel free to contact Westlake Legal for a free consultation.

Virginia DUI Law: The Effect of a DUI On Insurance and License

Q: What does a conviction for DUI do to my insurance and license? 

A:  One of the most frequent requests I receive from Traffic/DUI clients is to negotiate for fewer points on their driving record if they are found guilty.  In fact, fearing skyrocketing insurance payments, many clients offer to plea to a lesser offense in exchange for reduced points.   Unfortunately, points on a driving records are not assessed by the Court, so neither of these options are possible.  Points are assessed by the DMV, and depending or one’s driving record, a conviction for DUI could result in an administrative suspension of one’s license by the DMV. At a minimum, a person convicted of DUI will be assessed (-6) points on their driving record by the DMV. Such a conviction will remain on the driving record and can be considered when determining insurance rates for a period of 11 years after conviction. A 2004 study concluded that a DUI conviction costs up to $20,000 over the life of a convicted defendant in the form of increased insurance premiums and other fees.

When faced with the possibility of such a substantial financial burden, many people find the idea of hiring an attorney who will aggressively defend their rights much more appealing.  Should you ever find yourself in need of such services, please feel free to contact Westlake Legal Group to schedule a consultation.

Virginia Divorce Law: How Child Support is Determined

A popular question asked during divorce matters is “How is child support determined?”  Since the answer to this question is often very important, not only for the parties involved in the divorce but for their children as well, it is important to understand the process of child support determination prior to filing for divorce.

As a matter of principle, every parent has a duty to support their children.  To this end,both parties are responsible for child support and support is initially determined by application of Virginia Code § 20-108.2, the state guidelines for child support. Each parent is expected to pay a pro rata (proportional) share of the child support which is calculated based on the gross incomes of the parents, the costs of daycare, cost of health insurance, and costs of extraordinary medical expenses. Courts can deviate from the guidelines after first determining the guideline amount and making a determination of a need for deviation in order to correct what is perceived as a manifest injustice.

Virginia Code Section 20-108.1 allows for deviation from the guidelines based on the following factors:

1. Actual monetary support for other children or family members;

2. Arrangements regarding custody of children;

3. Imputed income to a party who is voluntarily unemployed or voluntarily underemployed except income may not be imputed to custodial parent when child is not in school, child care services are not available and the cost of such child care services are not included in the calculation;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Debts incurred for the production of income;

6. Direct payments ordered by the court for health care coverage;

7. Extraordinary capital gains;

8. Age, physical and mental condition of the child;

9. Independent financial resources of the child;

10. Standard of living established during the marriage;

11. Earning capacity, obligations and needs, and financial resources of each parent;

12. Education and training of the parties;

13. Contributions (non-monetary and monetary) to the well-being of the family;

14. Provisions with regard to marital property;

15. Tax consequences to the parties regarding claims for dependent children and child care expenses;

16. Written agreement between the parties as to amount of child support;

17. Agreed pendente lite decree (temporary support); and

18. Other relevant factors.

Child support is owed to any unemancipated child who is a full time high school student who has not reached the age of 19. Support is not awardable beyond the child’s 18th birthday or high school graduation, whichever is later. Further, parents cannot be forced to pay for college expenses unless agreed to in writing by the parties.

Virginia Divorce Law: The Four Grounds for Divorce in Virginia

There are four main grounds for divorce in Virginia. These are identified in Virginia Code § 20-91. The first three are usually considered “fault” grounds and the last is considered a “no-fault” ground for divorce.

The four grounds for divorce in Virginia are as follows:

1) Adultery or sodomy and buggery outside the marriage

2) When one party had been convicted of a felony and confined in prison for more than one year

3) Cruelty, causing reasonable apprehension of bodily hurt, desertion or abandonment

4) Having lived separate and apart without any cohabitation and without interruption for one year.

1. Adultery

Adultery is the act of having sexual relations with someone other than your spouse. Most importantly, in order to qualify as a grounds for divorce, the adulterous conduct by one of the parties must be the reason for the disintegration of the marriage. There have been many defenses that attempt to show disintegration prior to an adulterous act. In some states, you are free to have relations after you separate. InVirginia, it is considered adultery to have sexual relations with another at any time while you are married. This is an important distinction. There is no statutory waiting period for divorces based on adultery.

Interestingly enough, adultery is a misdemeanor in Virginia.  As a result, you must prove adultery by “clear and convincing” evidence. You do not need to catch your spouse “in the act.” It is sufficient to establish time and opportunity of circumstance, as well as an inclination to act.  However, one needs an independent witness even if your spouse admits his or her infidelity.

When confronted with adultery, one may want to address issues with a counselor and decide whether one is capable of resurrecting the marriage. One also needs to decide if it is worthwhile to pursue the divorce on these grounds from an emotional as well as financial perspective.

2. Felony Conviction

Felony conviction is a grounds for divorce in Virginia when your spouse is convicted of felony during marriage for which he/she is sentenced to more than l year in jail and cohabitation with your spouse is not resumed after knowledge of the confinement.

3. Desertion and Cruelty

Desertion occurs when one spouse leaves the marital home and such leaving is not agreed upon by the remaining spouse. The party leaving must also desire the separation to be permanent. A cooling off period is not desertion, nor is a trip or a separate vacation. If both parties agree to a separation, one does not have grounds for desertion. If one alleges desertion, the alleging party must show that the leaving spouse intended the separation to be permanent and that his or her leaving was not condoned in any way by the one who remains. There is a one year statutory waiting period for divorce based on desertion. Once a divorce action is filed, it is not desertion to leave the marital home.

Desertion requires the concept of “clean hands.” Although a gradual breakdown in a martial relationship is not a legal justification for leaving, the person remaining must show that he or she did nothing to cause the other to leave. This does not mean that one cannot leave, only that he or she should be sure they can justify leaving.

Cruelty is one form of justification of leaving. It usually requires some form of physical violence or reasonable apprehension of bodily harm. Harm can be both physical and emotional. Usually one act does not trigger an ability to get a divorce based on cruelty. For one act to qualify, the act must be so bad that any reasonable person would be shocked upon hearing of it. Unfortunately, a slap does not usually reach this level of shock, but repeated slapping does. Thus, minor instances which are repeated can qualify as grounds for a divorce based on cruelty.

The Court can find that a cruel spouse is guilty of “constructive desertion” when that spouse’s acts cause the other spouse to leave the marital home to escape further acts of cruelty. The standard of proof for desertion and cruelty is a “preponderance of the evidence.”

4. Separate and Apart

On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months. A plea of res adjudicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground; nor shall it be a bar that either party has been adjudged insane, either before or after such separation has commenced, but at the expiration of one year or six months, whichever is applicable, from the commencement of such separation, the grounds for divorce shall be deemed to be complete, and the committee of the insane defendant, if there be one, shall be made a party to the cause, or if there be no committee, then the court shall appoint a guardian ad litem to represent the insane defendant.

If you feel that filing for Divorce under one of these four grounds is appropriate to your particular situation, don’t hesitate to contact Westlake Legal to schedule a consultation.  Our attorneys have over 20 years of combined experience handling a wide variety of divorce issues.

Wrongfully Accused: VA Drivers Convicted of Charge That Is Not A Crime

In a turn of events that is particularly embarrassing for the Commonwealth, it has recently been reported that a number of Virginia localities have been ticketing, convicting, and fining motorists for a charge that, though alleged to be illegal, does not actually violate Virginia law.

In this instance, the law in question is Virginia Code § 46.2-707, titled “Operating uninsured motor vehicle without payment of fee; verification of insurance; false evidence of insurance.”  As its title suggests, this code makes it unlawful to operate an uninsured motor vehicle without having paid the $500 uninsured motorist fee that is required of those who chose not to purchase auto insurance.  The statute also prohibits anyone operating an uninsured vehicle from either providing false insurance information or from failing to provide proof that they have paid the uninsured motorist fee.   A conviction under this statute amounts to a Class 3 misdemeanor, the punishment for which is a $500 fine and the immediate suspension of one’s license.  Additionally,  a conviction for providing false insurance information when driving an uninsured car is labeled a “crime of moral turpitude” and can adversely affect future employment and military service.

What is particularly important about this statute–and what a surprisingly large number of police officers, prosecutors, and judges state-wide seemed to have missed–is that it only applies to drivers who are operating uninsured vehicles.  Therefore, in order to properly be charged under this statute, a driver would have to admit that his/her car was uninsured and that he/she failed to pay the uninsured motorist fee.  There is no crime if a driver does not have their insurance card on them or simply can not find it, or if they never make the above admissions.

Perhaps the most disturbing aspect of this new revelation though is not the fact that a few police agencies (4 counties worth to be exact) misinterpreted the statute and handed out illegal tickets.  As shocking and ultimately disappointing as this is, the issue that is of most concern to me is the fact that more than a few defense attorneys, prosecutors, and judges in the Commonwealth were complicit in the mistake.  The discovery that this charge has been wrongfully levied time and again without being properly challenged in court suggests a much larger issue with the justice system here in the Commonwealth.  While it might be conceivable to forgive such an error on the part of VA state troopers (thought I would not normally advocate such a move), to be equally as lenient with lawyers in the prosecutors offices or with the judges involved is inappropriate.  Just as I am charged with providing my clients with the best defense under the law, these men and women have taken an oath to uphold the laws of our country and to pursue the ends of justices at all times.  To think that a mistake as widespread and costly as this could be made on a routine basis is both extremely disappointing and terribly frustrating.  Going forward, I hope cases like this will both galvanize the Commonwealth to rectify its mistakes and prompt more citizens to educate themselves as to their basic rights.  In doing so, citizens and public servants alike will help to ensure that gross misinterpretations of law such as this do not reoccur.

Christmas Displays Spark First Amendment Fight in Loudoun County

For many Americans, the Christmas season is synonymous with a big, jolly man dressed in red, a pile of presents stuffed under a sparkling tree, and fun-filled times with loved ones and friends.  In Loudoun County, however, an entirely different and far less holly-jolly set of practices are beginning to encroach on the good-spirited traditions of the season.  Rather than making gingerbread houses and planning caroling with neighbors, many residents of the county have spent considerable time over the last few years arguing over Christmas displays.  In fact, the debate has grown so heated in the past that it has not only gained significant press coverage, but it prompted local officials to convene a number of special meetings and town discussions.

In each of these town-hall meetings, the first of which was in 2009, the issue at hand was whether residents should be allowed to erect Christmas-themed displays on the lawn of the Loudoun County Courthouse.  On the one hand, proponents of the displays argue that they are simply expressing their holiday cheer on public property and that, as a result, their right to do so is protected as a matter of free speech.  Others are quick to point out that the groups that erect the displays–most notably the Knights of Columbus–have tradition on their side, as they have been placing Christmas displays there for the past 50 years.

Those that oppose the notion of Christmas-themed displays, however, do not buy in to this logic.  For local atheist groups and other non-Christian residents, it is difficult to see the consistent display of Christmas symbols on government property as anything other than state sponsorship of religion.  It is this logic, in fact, that drove local residents to complain to the Facilities and Grounds Committee of the Loudoun County Courthouse in the first place.  In the two years since, the County’s stance on the issue has transformed numerous times.  The current policy states that, while erecting displays on the Courthouse lawn is allowed, permits to do so will only be granted to the first ten applicants each year.  As this year’s displays demonstrate, what results is a cacophony of unique displays that are representative of a variety of religious views, including atheism.

Presumably, since a variety of viewpoints are expressed under the current system, it would be safe to assume that a reasonable compromise has been reached.  Unfortunately, one of this year’s displays (a crucified skeleton in a Santa suit that was later torn down) seems to have struck a chord; the issue is again being debated throughout the county.  Given all of this, I thought it might be helpful to take a quick look at this issue from a legal prospective.  Regardless of whether you are religious, having a better understanding of the logical rationale surrounding the Board of Supervisors’ decisions might help to shed some much needed light on this debate.

All religious issues aside, the debate at hand is really one over the proper interpretation of the First Amendment to the U.S. Constitution, which states in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”  While proponents of the displays cite the Amendment’s Free Speech Clause as justification for placing the signs up each year, opposition groups look for similar support in the Amendment’s Freedom of Religion Clause.  Needless to say, the conflict between these two clauses is not new, nor is it one that has been ignored by the courts.  However, in sorting through Supreme Court decisions on the issue, I have found a relatively articulate passage that I think speaks to the heart of the current debate.  An amalgamation of numerous decisions, it reads as follows:

“The First Amendment does not guarantee access to property simply because it is owned or controlled by the government. The crucial question is whether the manner of expression is basically compatible with the normal activities of a particular place at a particular time.  Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.  But if government does open non-traditional forums for expressive activities, it many not discriminate on the basis of content or viewpoint in according access.” (Emphasis added)

Additionally, when ruling as to whether religious groups should be granted access to public school facilities, the Supreme Court found that “although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes these facilities available to nonreligious student groups.”

Put into context, the Supreme Court seems to be saying that while all citizens of Loudoun do enjoy concurrent rights to free speech and freedom of religion, these rights are not immune from limitation.  Instead, one’s ability to exercise these rights can be a function of location and all locations are not created equal.  In instances where public property is being used as the platform for an expressive act (as is the case in Loudoun), the Court seems to be saying, first and foremost, that all government-run properties are not created equal and that the government is not obligated to make all such facilities available to the public. In other words, while the government may not be able to regulate expressive acts in open forums such as town streets and parks, it can regulate such acts in less-open areas, such as state-run buildings and governmental properties.  However, should the decision be made to open these properties to expressive activities, the Court is very clear that it must be done in a manner that does not “discriminate on the basis of content or viewpoint.”  Likewise, the opportunity to use the facility or property cannot be restricted based on religious preference.  Rather, if a property is made available to a religious group, it must be made available in an equal and non-exclusive manner to any interested non-religious groups, and vice versa.

Given this information, I have to say that I find the Loudoun County Board of Supervisors’ current system of allocating space for holiday themes rather well-thought-out and fair.  By granting permits for displays to the first ten groups to apply, the County is guaranteeing equivalent access to the space regardless of religion or content.  In doing so, the county is promoting the notions of fairness and equality for all, both of which are fitting sentiments to espouse during the Christmas season.  Unfortunately, it seems that many of the citizens of Loudoun have lost sight of the importance of these values, not to mention the true meaning of the holiday.  I have probably said this fewer times than Santa has reindeer, but I have to admit it: I think the government got it right on this one…

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.