Minnesota, U.S.A. — Despite all the recent controversy surrounding U.S. Supreme Court decisions on health care, immigration and other issues, nearly two-thirds of Americans can’t name even a single member of the Supreme Court. That’s according to a new national survey by FindLaw.com (www.findlaw.com), the most popular legal information Web site. The survey found that only 34 percent of Americans can name any member of the nation’s highest court.

Chief Justice John Roberts is the most well known of the justices, but could be named by only one in five Americans. Only one percent of Americans can correctly name all nine sitting Justices.

According to the FindLaw survey, the percentage of Americans who can name any U.S. Supreme Court justice are:

• John Roberts – 20%
• Antonin Scalia – 16%
• Clarence Thomas – 16%
• Ruth Bader Ginsburg – 13%
• Sonia Sotomayor – 13%
• Anthony Kennedy – 10%
• Samuel Alito – 5%
• Elena Kagan – 4%
• Stephen Breyer – 3%

“Recent rulings, particularly the decision upholding health care reform, have brought more attention to the U.S. Supreme Court than we’ve seen in past years,” said Stephanie Rahlfs, an attorney and editor at FindLaw.com.

“However, the High Court issues its rulings as a collective body. While justices can and do issue individual concurring and dissenting opinions, court sessions are conducted without TV cameras and deliberations take place behind closed doors. So while the decisions often have significant and lasting impact, the justices themselves are generally not very visible nor well known to the public as individuals.”

The FindLaw.com survey was conducted using a demographically balanced telephone survey of 1,000 American adults and has a margin of error of plus-or-minus three percent.

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El Salvador, a small country in Central America, is facing a Constitutional Crisis caused by a power struggle between the National Assembly and the Constitutional Court.

The crisis started this year when FMLN (the left party that won the presidential elections in 2009) in an alliance with minority parties attempted to rush through the appointment of judges to the Supreme Court before the new National Assembly (in which FMLN had lost legislative majority) took office in May.

This in not the first time  this has happened in El Salvador. In 2006 when the right wing party ARENA had legislative majority, they did the same thing, electing judges twice in the same legislative period.

The Constitutional Court in June ruled that the 2006 and 2012 elections were unconstitutional and ordered new elections for 15 judges and their alternates. The Constitutional Court clearly stated that it is unconstitutional for an outgoing legislature to name justices to serve under the next session.

Despite this, the National Assembly was not willing to accept this verdict; they appealed to the Regional Central American Court of Justice, even though it has no authority to decide on El Salvador’s constitutional questions, which ruled  in favor of the National Assembly.

This led to several protests from the different organizations of the civil society that organized themselves in a movement called #Yomevistodeblanco (I dress myself in white) to express their indignation for the National Assembly’s actions against the Supreme Court.

Even with all the pressure, FMLN and the allied parties are not willing to repeal the judge’s election and stated that the Regional Central American Court of Justice has authority to decide over El Salvador’s constitutional matters.

This Monday a syndicalist group took over the Supreme Court building to guarantee that, although their election has been declared illegal by the Constitutional Court, the judges elected by the General Assembly were able to take office. The new judges elected by the General Assembly even had to use a locksmith to open the President of the Supreme Court office and some other areas of the building. The police officers that were near the area did not do anything to try to stop these actions.

The newly elected by the General Assembly, but declared unconstitutional by the Constitutional Court, president of the Supreme Court, Ovidio Bonilla, was presented to a group of people by the president of the National Assembly Sigfrido Reyes (FMLN) and other members of the National Assembly from political party allies of FMLN.

ARENA is the only political party that is against the National Assembly election of the judges and supports the Constitutional Court rulings that declared the 2006 and 2012 elections unconstitutional, even though in the 2006 election they were the ones who had legislative majority. They recently announced they don’t recognize Ovidio Bonilla as the president of the Supreme Court, based on the Constitutional Court’s Ruling.

The US Senate is also concerned with El Salvador’s situation. The Republican Florida Senator Marco Rubio said that the United States does not have the obligation to continue collaborating with a country that is violating its own Constitution and its own laws, which were achieved by the Salvadorian people with great sacrifice. The Senator warned that they have to check their help programs, like the Millennium Challenge Account from which El Salvador has received more than $400 million, because they are only intended for countries that are achieving progress in their democracies.

The situation is critical, with two separate groups of judges claiming to be the country’s lawful Supreme Court, but only one is the legitimate one; the Salvadorian crisis is similar to the one suffered in Nicaragua when the Sandinistas took over the Supreme Court.

Image Courtesy of   MINEX GUATEMALA

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Washington, U.S.A. – According to a survey by StrategyOne, U.S. adults disagree with the Supreme Court’s recent ruling on the Affordable Care Act. While opinion of the decision is generally polarized by party – 66% of Republicans disagree with the ruling; 71% of Democrats agree – Independents are more aligned with Republicans. Fully 46% of Independents disagree with the ruling, while only 35% agree. Intensity among Independents is also strongly against the ruling, with 35% saying they strongly disagree and just 12% strongly agreeing.

Steve Lombardo, global CEO of StrategyOne, believes negative reaction among Independents could assist Republican presidential candidate Mitt Romney come Election Day. According to Lombardo, Independent opposition to the Supreme Court decision “suggests that the Roberts ruling has the potential to move swing voters and the GOP base toward Romney.”

Additionally, a majority (52%) of adults say they are more likely to vote in the presidential election as a result of the decision. The Supreme Court’s actions appear to have a greater impact on Romney supporters. Among those voting for Romney, 49% say they are much more likely to vote because of the SCOTUS ruling, compared to 38% of President Obama’s supporters. Those who disagree with the ruling are also more inclined to say the decision makes them much more likely to vote (43%) compared to those who agree with the ruling (35%).

Lombardo sees this enthusiasm gap between those opposing the ruling and those supporting it also benefiting the GOP in the election. “If the electorate looks more like 2010 than 2008, it will be a big boost for Romney,” added Lombardo.

According to the StrategyOne survey, U.S. adults overall are slightly more likely to agree with the Supreme Court’s ruling on the Affordable Care Act than disagree. Fully 48% of respondents agree with the decision, while 41% disagree.

Survey Methodology

StrategyOne conducted a nationwide telephone survey of 1,022 adults, 510 men and 512 women 18 years of age and older, living in the continental United States. All interviews were undertaken using computer assisted telephone interviewing (CATI) technology. A total of 772 interviews were conducted among landline respondents, and 250 interviews were conducted among cell phone respondents. Results are weighted to represent the U.S. population using data from the Current Population Survey on age, gender, race, region, and education from the National Health Interview Survey (NHIS). The overall margin of sampling error for the total N of 1,022 is +/- 3.5.

Image Courtesy of  Walter G Arce / Shutterstock.com

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There is the no two ways about it, President Obama received a huge victory today, and got it from an unexpected source. Chief Justice John Roberts was the deciding vote that upheld the individual mandate for the Affordable Care Act.

Here is the walk-through. The United States Supreme Court was deciding four major things in today’s ruling.

• Did the Federal government under the Commerce Clause of the Constitution have the authority to mandate individuals’ purchase of health insurance?
• Was the mandate necessary for the entire law to be upheld? The idea of Severability. If you got rid of the mandate, would it invalidate the whole law?
• Did the Federal government have the ability to withhold a state’s Medicaid funding, IF they did not enact the Affordable Care Act, and not place more people under their Medicaid health care plans?
• Is the penalty a tax?

The Individual Mandate

From the start, the primary fight against the ACA or Obamacare law was the idea that the law forced people to buy health insurance. That was the primary issue that people have been discussing for the last two years. Does the Commerce Clause give the federal government that power? In a 5 to 4 vote the court said that no, the federal government does not have that power. And when that was announced on the news, a million plus sighs and cries of “YES!” could be felt from conservatives around the United States. It was short lived.

Although the court said it was unconstitutional under the Commerce Clause it was upheld as constitutional as a tax. Not only that, but the deciding vote for the law was Conservative judge John Roberts. To call this a crushing blow is an understatement, and underscores how Presidents can never know how their appointees will decide. President Bush appointed John Roberts, and he has been a frequent attack subject by the political left. Yet, he voted their way today. And the man who was supposed to be the deciding vote Justice Kennedy had this to say in his dissent, “In our view, the entire Act before us is invalid in its entirety.”

The total opinion is 200 hundred pages long and will take time to digest, but in the law itself, there is not a single mention of the word “tax.” This could be because President Obama and the Democrats knew they could not sell it, if it were called a tax. That, however, did not stop the lawyers of the government from calling it that in the briefs and oral arguments. It was persuasive, as the Court upheld the idea that under Congress’s power to tax, the mandate, and the penalty charged for not getting health insurance falls under that umbrella, even if it were not called that in the law itself. Lastly, because the mandate was upheld as a tax there was no reason to even discuss severability.

The Issue of Medicaid

This is one issue that was central to the 26 states that brought suit against the Obamacare law, but not necessarily followed by most U.S. Citizens. In this area the Supreme Court, also in a 5-4 vote, held that is was unconstitutional for the federal government to withhold a state’s federal Medicaid funding, if the state did not create the exchanges and add the millions of new people onto their Medicaid rolls. The states position was that it was too expensive, and that the federal government could not force them to expand their Medicaid rolls.

While this question did not receive much attention before it will now. The segment of the population that Obamacare was created to give insurance coverage to was the poor, and the working middle-class. However, the way in which they would be getting this coverage was through an expansion of the Medicaid rolls in each state. Now, the states can refuse to do it. This means one primary purpose of the act has been nullified. This will have huge implications for the practical working of the law and goes back to the issue nonpartisan evaluations of Obamacare have always maintained. That the law tried to do too much, too fast, and was not crafted well.

Twenty-six states sued over both the mandate and the Medicaid requirements. Presumably all 26 will refuse to set up the exchanges. That means the millions who were supposed to be getting the new benefits will not, and that also means that one of the funding apparatus’s; namely, premiums for the policies, will not be forthcoming. That adds another financial burden to a law that was financially fraught from conception. In today’s news, and from now to election day, this aspect may be out shined by the huge win for President Obama. However, the practical measures of getting the law started in terms of the health care policies, could rear its ugly head soon after the election.

What now?

What happens next is anyone’s guess. One possible consequence is the independent and conservative bases that fueled the 2010 midterm elections could rise again. If that happens, Obama loses in a landslide, and the Republicans take the Senate and the House. Spending, the threat of taxes, and Obamacare fueled the 2010 election outcomes. This ruling has put all those items squarely back in play.

But, President Obama can campaign on making sure he is reelected so that he can preserve his law, a law that has been ruled constitutional. Republicans would be making a mistake to think Democrats cannot be rallied to the polls to keep that from happening. Presidential election cycles always have a higher turn out than midterm elections. Thinking that the conservative and independent base will overwhelm the Democratic base would be a mistake.

Still, one problem with the law has always been that did it not address health care costs, just access. So how to pay for it still remains a big question. The mandate leaves one funding avenue open, but the state not having to make the exchanges closes down another. The Congressional Budget Office and the Medicaid Department have both released studies showing that the law does not reduce health care costs or the costs of insurance. The bottom line from these two nonpartisan agencies was even if everyone followed the mandate and bought health insurance, it still was too expensive. Now, you add in some states not even creating the exchange, and you have a bigger mess. Further complicating this is that you can bet the Court will shortly have another case related to this from religious organizations that do not want to pay for a woman’s choice to use birth control pills.

Today is a historic, and for me, ironic day. According to the Supreme Court, conservatives were correct in their assertion that it is unconstitutional under the commerce clause, but lost because of the government’s ability to tax is broader than the commerce clause. Ironic that they won, but lost. Ironic that President Obama wins via a tax, yet he has never called it a tax. Ironic indeed.

Image Courtesy of spirit of america / Shutterstock.com

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Dallas, U.S.A. – The Supreme Court of the United States have declined to review an earlier appeals court decision clearing two Texas school principals of claims they restricted the free speech of students in the so-called “Candy Cane” case.

The Supreme Court’s decision not to hear the appeal in Doug Morgan, et al. v. Lynn Swanson, et al., No. 09-40373, follows an earlier ruling from the U.S. Court of Appeals for the Fifth Circuit that the principals should be shielded from the lawsuit based on qualified immunity.

In 2004, elementary students from the Plano Independent School District and their parents filed a complaint in the U.S. District Court for the Eastern District of Texas against Plano ISD and some of its employees based on claims that elementary school administrators restricted their rights to free speech by prohibiting the students from distributing religious-themed gifts at their schools.

Attorney Tom Brandt of the Dallas law firm of Fanning Harper Matinson Brandt & Kutchin represented Lynn Swanson, principal of Thomas Elementary School, and Jackie Bomchill, principal of Rasor Elementary School. Mr. Brandt notes that while some court watchers have characterized this as one of the most important First Amendment cases of the past decade, the core legal dispute always has been about the qualified immunity of the principal parties.

“There have been a number of people and organizations who have characterized this as a seminal First Amendment decision,” says Mr. Brandt. “However, as the Court has shown us in today’s decision, the core legal question was not about freedom of expression, but about the necessary protections for two outstanding educators.”

“This type of case is exactly why the tenet of qualified immunity is a part of our legal system. Educators must be allowed to make decisions that are in the best interest of an entire school without fear of individual retribution when the law is unclear,” adds Mr. Brandt. “This ruling brings a tremendous sense of relief to Ms. Bomchill and Ms. Swanson, who have been forced to deal with the specter of this case for far too long.”

While the Supreme Court’s decision brings the Morgan v. Swanson appeal to a close, other parts of the case are still to be decided at the appellate and district court levels.

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Washington, U.S.A - The Conservative electoral wave of 2010 is alive and well and headed toward the Senate. Groups representing all aspects of the movement declare that the 2012 Conservative takeover that began in Indiana when Richard Mourdock ousted 36 year-incumbent Richard Lugar, must continue in Nebraska this Tuesday.

Diverse conservative groups, Eagle Forum, Gun Owners of America, FRCAction and FreedomWorks are uniting behind State Treasurer Don Stenberg because of his proven record, having delivered on his promises to conservatives each of the four times he has been elected to statewide office.  The groups issued the following statements:

FRCAction PAC

“Don Stenberg is a known quantity, and he is known as a warrior for marriage and the unborn, having defended Nebraska’s partial birth abortion bill all the way to the Supreme Court. He is also a warrior on the fiscal front, as he fought to keep costs under control as Nebraska’s Attorney General and Treasurer.”

FreedomWorks

Stenberg has a record of standing strong against interventionist economic policies, such as cap-and-trade and ObamaCare. A critic of excessive government spending before it was fashionable; Stenberg decried Republican big-spending initiatives such as Medicare Part D, No Child Left Behind, and corporate bailouts.  We know we can count on him to take a stand for our economic freedom, even if it means standing against his own party.

Gun Owners of America

Gun Owners of America stands with Don Stenberg who is strong on all the issues, especially appointees and nominees that shape policy for generations.  He is the polar opposite of Jon Bruning, who wrote a letter supporting the nomination of Attorney General Eric Holder, and continues, unapologetically to stand by his support for Eric Holder despite many calls to renounce it.

Even in the face of Congressman Darrell Issa’s impending Contempt of Congress charges Bruning still wants to go along to get along.  This is exactly what is wrong with our party and Establishment candidates like Dick Lugar, who recently was defeated by another staunch conservative.

Eagle Forum

“With the possibility of two to three vacancies on the Supreme Court and hundreds of other federal benches over the next four years, we must elect conservatives with the backbone to stand up against nominees who don’t share our values. Don Stenberg is the only candidate in this race that we know will take such a stand.”

Stenberg is also endorsed by Kentucky Senator Rand Paul and Utah Senator Mike Lee, both of whom were elected in the 2010 conservative wave, as well as Senator Jim DeMint’s Senate Conservative Fund and the pro-business Club for Growth.

Image Courtesy of   Andrew Aliferis

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The Department of Justice sent a letter rejecting Texas’ voter identification law saying Hispanic voters in the state are as much as 120% more likely than non-Hispanic voters to lack a driver’s license or personal state-issued photo ID.

“The announcement by the Department of Justice in opposition to Texas’ voter ID law is a prime example of a government agency putting partisan politics above reality and the law. The decision is not based on accurate data or the merits of the argument; instead, it appears that some Democrats and far left groups believe the more lawful an election the less likely they are to emerge victorious,” said David Norcross, Republican National Lawyers Association (RNLA) Chair.

“Neighboring New Mexico, the state with the highest percentage of Hispanic voters, requires voter ID for city elections in Albuquerque without any problems. Just as some liberals defended corrupt election groups like ACORN, now others are attacking processes that will make it harder to cheat on Election Day.”

Rich Parsons, the communications director for the Texas Secretary of State, called the data which the Department of Justice requested “unreliable.” Parsons explained, “Texans are not required to identify themselves by race or ethnicity when they register to vote, so the data they ask for doesn’t exist.”

The Department of Justice kept asking Texas for data even if it was not accurate, so it could claim to justify blocking the voter ID law. On September 23, 2011, the Department of Justice requested data from Texas about how many Hispanic voters do not have photo identification.

After Texas responded that the data was not collected, on October 5, 2011, the Department of Justice still requested data, asking for the number of voters with Hispanic surnames — an inaccurate way to count voters of a certain racial background.

This marks the second time the Department of Justice has objected to a Voter ID law using dubious statistics and math. When they did so the first time in South Carolina, the Department of Motor Vehicles found that the numbers the Department of Justice relied upon were wrong, and actually were 86% lower than initially reported.

Every single court that has so far evaluated voter ID laws has found them constitutional. When the Supreme Court evaluated Indiana’s voter ID law, the Court upheld the law in an opinion written by liberal Justice John Paul Stevens. When Georgia’s voter ID law was challenged, an appellate court approved the voter ID law.

The Texas voter ID law received support from State Representative Joe Pickett, a Democrat from El Paso. He said, “If I really, truly thought that this would disenfranchise somebody, I would’ve voted against it. In these days and times, it’s just not the case… Having a basic identification is a function of everyday life.” Other states, including Democratic Party-controlled Rhode Island, joined Texas in passing a voter ID law this year.

After receiving requests in September from liberal organizations like the ACLU asking for the voter laws to be blocked, the Department of Justice obeyed and did the far left’s bidding.

Image Courtesy of   Frontpage / Shutterstock.com

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James Shaw, director of the Union of Medical Marijuana Patients, announced that the Union has provided the members of the Los Angeles City Council and City Attorney two motions to regulate medical cannabis dispensaries as an alternative to the City Attorney draconian solution to the city council’s concerns (the initial drafts are posted at www.Unionmmp.org).

“We have had extensive meetings with the council staff over the past two months and heard their concerns about neighborhood complaints about some dispensaries,” said Shaw. “At the same time, we argued that a total ban on patient associations and their dispensaries would have a significant downside.”

There are an estimated quarter million medical marijuana patients in the city using this for problems as varied as cancer and AIDS pain, multiple sclerosis, insomnia, and depression. A University of California Santa Cruz study found that 80 percent of medical cannabis users preferred this to the ineffectiveness and side effects of prescription drugs for the same ailments.

There is no data on how many patients are also recreational users, but since marijuana is inexpensive and widely available on the black market in Los Angeles, it seems unlikely that a large percentage of patients are purely recreational users, despite the assertions of critics of medical marijuana.

“What this means is that if the city bans dispensaries that all these patients will be forced to take the six plants they are legally entitled to grow to their homes, creating mini-marijuana farms, and their associated dispensaries in every neighborhood in the city, each of which will potentially attract robberies,” said Shaw. “This would be a disaster after all the progress made in recent years in reducing violent crime.”

Many patients will find the attempt to grow marijuana very frustrating and expensive, since it is a complicated process in the dry climate of Southern California, requiring a great deal of water and electricity, he pointed out. The result: many patients will be forced back to the black market.

The city attorney has not addressed the fact that closing 350 dispensaries and dispersing the plants will have an undetermined impact on the environment. “In October, we filed a lawsuit because the original medical cannabis ordinance did not come with a study required by the California Environmental Quality Act assessing its impact on things like traffic, water usage, and pollution concentrated in neighborhoods where the 70-100 mega-dispensaries would be as envisioned by the ordinance,” said Shaw.

“The city attorney never provided a serious answer, and the lawsuit is ongoing. He now proposes to deal with this and the more than 60 lawsuits about other aspects of his fatally-flawed ordinance by banning dispensaries entirely. But in his proposal for the ban, he fails to recognize that dispersing up to 1.5 million plants and associated dispensaries into every neighborhood creates an environmental impact that needs to be assessed.”

The Union has proposed two motions for the city council to consider. The first, “public nuisance abatement,” proposes that city officials start enforcing current laws to deal with complaints like loitering and sales to minors, just as the police handle such problems around liquor stores.

There has been little effort to do this, Shaw said, which is why neighbors of dispensaries sometimes complain. The city would then wait until the state Supreme Court rules on the constitutionality of a ban and on the extent to which it can regulate without being accused of “authorizing” a substance that is on the U.S. government’s Schedule I of Controlled Substances (cocaine is on the less serious Schedule II). This would avoid further expensive litigation.

The second motion calls for a “ban with abeyance”, or a soft ban, which would create a ban that allows patient associations to prove that they are operating in compliance with local and state law, allowing the ban to be held in abeyance as long as they continue to be in compliance. This would provide due process and have none of the negatives of the proposed total ban, while giving patients safe access to their medicine.

“Our attorneys have determined that this would be a way of having strict regulation without issuing permits, which are considered ‘authorization and forbidden by federal preemption,’ if the so-called Pack decision is upheld by the state Supreme Court,” said Shaw.

“We have provided the Council with the rewording for the ordinance to be able to implement this, and we have recommended third party verification an option that would provide law enforcement the information it needs, while protecting patient privacy and Fifth Amendment rights, neither of which is addressed in the original ordinance.”

The Union welcomes debate on these and other motions and believes a rush to a total ban would be a disaster for the city, the police, neighborhoods, patient associations, and medical cannabis patients.

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A Maricopa County Superior Court judge last week rejected a lawsuit challenging Arizona’s landmark Empowerment Scholarship Accounts Program, the first-of-its-kind private school choice program that benefits special needs children.

The American Federation for Children—the nation’s voice for school choice—praised the ruling as a victory for parents, students, and education reform advocates. The lawsuit, brought forth by the Arizona School Boards Association and the Arizona Education Association, will likely be appealed, according to lawyers arguing on behalf of the program.

The Empowerment Scholarship Accounts Program grants education savings accounts to eligible parents of students with special needs. Parents can use those funds for a host of educational purposes, including tuition, tutoring, and school supplies. There are currently 142 students enrolled in the program.

“The real winners here are the parents and the children who are benefiting from this groundbreaking school choice program,” said Betsy DeVos, chairman of the American Federation for Children.  “It is long past time for special interests to cease challenging laws that empower parents and give hope to disadvantaged children.”

In her ruling, Judge Maria Del Mar Verdin said that “the exercise of parental choice among education options makes the program constitutional,” also noting that ESAs allow parents to choose how and when all of the scholarship amounts are spent. Opponents claimed that the program violates the “Aid Clause” and the “Religion Clause” of the Arizona Constitution.

The victory is the most recent in a long line of successful court rulings in favor of expanded educational options. Last April, the U.S. Supreme Court upheld the constitutionality of Arizona’s Individual School Tuition Organization Tax Credit Program, and earlier this month, an Indiana judge rejected a lawsuit that aimed to halt the statewide voucher program.

Enacted last year, the Empowerment Scholarship Accounts Program is the fourth private school choice program operating in Arizona. The Grand Canyon State is currently one of only two states in the country with four publicly funded private school choice programs.

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Six national aging groups filed a friend of the court brief with the Supreme Court last Friday, January 27, saying that there are extensive provisions in the Patient Protection and Affordable Care Act that are of “vital importance to the health and well-being of people 65 and older” and that Congress did not intend for any of them to be contingent on whether or not the minimum coverage provision (also called the individual mandate) was constitutional.

“The health and quality of life of many older Americans are already improving because of the health reform law,” says National Senior Citizens Law Center Executive Director, Paul Nathanson. “We don’t believe Congress intended to let the elderly poor languish in nursing homes or be subject to abuse if the individual mandate was found unworkable.”

The amicus brief was filed in the National Federation of Independent Business et al v Kathleen Sebelius et al and the State of Florida et al v Department of Health and Human Services et al cases which challenge the constitutionality of the health reform law. In those cases, the petitioners contend that all of the ACA should fall if the minimum coverage provision is invalidated by the Court.

The brief states that a “careful review” of policies Congress sought to enact shows that the provisions affecting people aged 65 and over “can be effectuated without any reliance on the minimum coverage provision.”

The brief also highlights the parts of the ACA that greatly benefit people aged 65 and older that should not be affected if the Court decides to invalidate the minimum coverage provision, including the following:

• Reduced cost-sharing for Medicare beneficiaries for prescription drugs by substantially reducing the coverage gap or so-called donut hole
• Elimination of cost-sharing for annual wellness visits and other screening services
• Medicare Advantage plans are prevented from charging higher cost-sharing for chemotherapy and dialysis than permitted under traditional Medicare
• Decreased unnecessary institutionalization of Medicaid beneficiaries
• Improved coordination of care for people receiving both Medicare and Medicaid (dual eligibles)
• Improved quality and safety in nursing homes, and prevention of abuse and neglect of elderly and people with disabilities in nursing and other residential facilities.

The brief states that the only provisions that should be affected by the constitutionality of the minimum coverage provision are the pre-existing condition, the community rating, and guaranteed issue provisions.

“The rest of the ACA, including, but in no way limited to the provisions highlighted in this amicus brief, should remain intact,” the brief concludes.

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In a Texas case that could have implications for other voting rights cases nationwide, the Supreme Court on Friday Jan 20, rejected a lower court’s redistricting plans for the state’s new electoral seats, which could pose constitutional concerns.

According to the 2010 Census, Texas’ population grew by more than four million people in the last decade – 65% of which is attributed to Hispanics – giving the state four additional seats in the U.S. House of Representatives and requiring changes in the election districts for the State Legislature.

Under Section 5 of the Voting Rights Act of 1965, jurisdictions labeled as historically discriminatory in electoral procedures (including Texas) must submit plans for changes affecting voting to the Attorney General or the U.S. District Court for the District of Columbia. The Texas Legislature’s initial set of election maps had not been approved at the time of Texas’ first primaries, leading the U.S. District Court for the Western District of Texas to create its own map for use in the interim.

The Texas court’s map gives greater voting power to the new population, which is largely minority, whereas the Legislature’s map seems to dilute the electoral power of the Hispanic and African American voters. The Supreme Court determined that the lower court had overstepped its authority, and ordered it to adhere more closely to the original plan.

“Election redistricting is an extremely important and delicate undertaking, with many opportunities for the empowerment or disenfranchisement a particular group of citizens,” said Benny Agosto, HNBA National President and Texas resident. “The HNBA is concerned about the constitutional implications of this decision, and the potential ripple-effect on redistricting disputes in which Latino voters’ rights are at stake.

As a national advocate for Latino voting rights, the HNBA will continue to follow these developments closely to ensure that democracy is not being compromised.”

“Protecting the Hispanic community’s electoral voice and the right to elect their candidate of choice is paramount. HNBA stands behind efforts to ensure that redistricting maps comply with the Voting Rights Act. Maps in Texas, and throughout the country, must account for the growth in the Hispanic population,” added Celeste Villarreal, HNBA Vice President of External Affairs.

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On January 10, 2012, Liberty Institute announced a major pro-life victory when the U.S. Court of Appeals for the Fifth Circuit declared constitutional the recently enacted Texas Sonogram Law, also known as HB 15.

The Fifth Circuit’s decision overturned a controversial ruling by U.S. District Judge Sparks, which enjoined the Texas law co-authored by Senator Dan Patrick and Representative Sid Miller and was signed into law by Governor Rick Perry in May 2011. The law requires doctors and certified sonographers to perform a sonogram on women seeking an abortion at least 24 hours before the procedure.

“This is one of the most important victories in the past 10 years for informed consent for women seeking an abortion,” said Jonathan Saenz, Liberty Institute Attorney who heads the office at the Texas Capitol and provided the main legal testimony for the bill during the legislative process. “Women and unborn children in Texas are safer today because of this decision and no longer subject to the abuse of abortion doctors who deny women critical medical information.”

HB 15, which amends the 2003 Texas Woman’s Right to Know Act, requires the physician “who is to perform an abortion” to perform and display a sonogram of the fetus, make audible the heart auscultation of the fetus for the woman to hear, as well as explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion.

Senator Patrick said, “I was always confident that our bill would survive any constitutional question because our goal from the beginning was to protect the woman’s right to know, protect the unborn, and protect the constitution.”

Representative Sid Miller, said, “I commend the court of appeals for this just decision which confirms that women have every right to be fully informed about the abortion decision and that my fellow Texas lawmakers who supported this law stayed within the bounds of U.S. Supreme Court precedent.”

In August, on behalf of Senator Patrick and Representative Miller and in support of the law, Liberty Institute filed an amicus brief in the lawsuit seeking to strike down Texas’ new sonogram law (HB 15), which was originally scheduled to go into effect on September 1, 2011.

Senator Patrick and Representative Miller were the authors of HB 15 in the Texas Senate and Texas House of Representatives, respectively.  Liberty Institute argued that HB 15 is consistent with The Supreme Court and only requires the disclosure of truthful and accurate information to allow women to make informed decisions regarding their pregnancies.

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The American Center for Law and Justice (ACLJ), focusing on constitutional law, is urging a federal appeals court to uphold Alabama’s immigration law saying the measure “mirrors federal immigration provisions” and warns that if the Obama Administration challenge to the Alabama law succeeds, states will be effectively rendered “powerless over unchecked illegal immigration and the associated social and economic costs that their citizens must bear.”

“This is fast becoming one of the most important issues for the American people,” said Jay Sekulow, Chief Counsel of the ACLJ. “This latest case underscores the growing clash between the federal government and the rights of states.

The fact is many states are doing what Alabama and Arizona already have done – enacting laws that promote Congressional immigration policy by enforcing the very laws that the Obama Administration fails to enforce. We contend the Alabama measure impedes no federal law and is actually consistent with federal immigration policy that promotes increasingly greater roles for states in enforcing immigration law.”

The ACLJ filed an amicus brief yesterday with the U.S. Court of Appeals for the Eleventh Circuit, backingAlabama’s HB 56.

The brief, posted here, argues:

“The Administration’s attack on HB 56 undermines federalist and separation of powers principles by permitting the Administration’s policy preferences to trump Congress’s statutory acknowledgement that states have inherent authority to enforce laws that profoundly affect their citizens’ welfare. A decision sustaining the Administration’s claims will effectively leave the states powerless over unchecked illegal immigration and the associated social and economic costs that their citizens must bear.”

The Alabama appeal comes as the Supreme Court has decided to hear a challenge to Arizona’s immigration measure, SB 1070. The ACLJ, representing 59 members of Congress and nearly 60,000 Americans, filed an amicus brief urging the high court to take the case arguing the Arizona measure, like the one in Alabama, is constitutional because it mirrors federal immigration law and incorporates federal standards.

The ACLJ is now preparing an amicus brief in support of the Arizona measure to be filed with the Supreme Court, which is expected to hear oral arguments in the case this spring.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.  The ACLJ is online at www.aclj.org.

Ryan Rodrick Beiler / Shutterstock.com

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The Supreme Court unanimously rejected Troy Davis’ appeal. Davis was killed at 11:0PM EST  in Georgia. Troy Davis’ case was long and complicated. Davis has been scheduled for execution four times, appealing the decision successfully each time.

Although Davis was scheduled to die at 7 PM EST on Wednesday night, a last minute plea by Davis’ lawyers to the Supreme Court, caused a delay in his execution while the Supreme Court weighed in on the controversial case. Troy Davis reportedly was strapped to a gurney waiting to die for four hours.

Hundreds of protesters gathered outside the jail while dozens of riot police officers barricaded the jail and arrested those that crossed the line. During the lengthy delay, Davis’ family remained quiet outside the jail. The slain officer’s family waited inside to watch the execution. Laura Moye, an organizer with Amnesty International, was on prison grounds all evening long.

“We are just profoundly saddened and upset,” Moye said. A prayer circle had formed around the Davis family earlier in the evening and remained through the execution. “We knew that it was a long shot,” Moye said. “Troy Davis has always had difficult odds. He’s faced executions three times…We always held on to our hope.

We got this far by believing in the power of human rights. Now it seems there’s nothing that can intervene to stop this execution.” “People are trying to rally around this family. Everybody wants to be there standing in support of the Davis family,” Moye explained. “A lot of people standing in disbelief.”

All around the world, protesters held demonstrations. Residents around the world tweeted, “Dear Georgia,” reminding the state that the world is watching their decision. Earlier in the day, many people weighed in on the impending execution. Moye said that the support Davis’ case has received from the public has been very moving. ”What is a miracle in this case is so many people have raised their voices,” Moye said.

Troy Davis was convicted of the 1989 killing of an off-duty police officer, primarily of witness testimony. Since that time, Davis has maintained his innocence and the majority of witnesses have recanted their testimony. A group of former death row wardens wrote to Georgia authorities calling on them to halt the death sentence due to doubts about Davis’ guilt.

Among the group was the former warden in charge of the Georgia death chamber. ”While most of the prisoners whose executions we participated in accepted responsibility for the crimes for which they were punished, some of us have also executed prisoners who maintained their innocence until the end,” the wardens wrote in a press release.

“It is those cases that are most haunting to an executioner.” Meanwhile, the family of the murdered officer and the case’s original prosecutor have argued strenuously for Davis’s execution, and have asserted that there is no doubt that he is guilty of the murder.

Image Courtesy of  http://www.flickr.com/photos/death_penalty/

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The federal courts could be in for a dramatic change if Texas governor Rick Perry wins the presidency. The Republican presidential hopeful is looking to curb the court’s alleged ‘judicial activism’ by ending the practice of appointing justices for life.

Under the US Constitution, federal judges (including Supreme Court justices) hold their seats for life and can only be removed after an impeachment trial in the Senate. Because their extended tenure allows them to shape judicial policy long after the president who appointed them has left office, their confirmation hearings in the Senate have become increasingly bitter in recent years.

In his 2010 book Fed Up!, Perry describes the Supreme Court as “nine oligarchs in robes” and calls for measures “to restrict the unlimited power of the courts to rule over us with no accountability.”

One of the measures that Perry briefly discusses is stripping justices of their life tenure. Instead, he supports a system where terms are staggered so that there is a retirement every two years or so. Each justice would serve for eighteen years, which would prevent any one president from being able to appoint a majority of the court.

Although Perry has cast his argument in terms of restraining judicial activism, others have called for an end to life tenure on medical grounds. In a January 2011 article on the the independent news site ProPublica, Joseph Goldstein highlighted the effect of senility and dementia on the federal bench.

He revealed that the percentage of octogenarians and nonagenarians hearing cases in federal courts has doubled over the past twenty years. Furthermore, forcing a debilitated judge off the bench is incredibly difficult. At present, it is usually done by behind-the-scenes peer pressure from fellow judges.

The last impeachment for mental incapacity was in 1803, and while it is possible for a federal judge to be forcibly retired due to permanent disability, this has only happened twice in the past twenty years.

Currently, there is a form of semi-retirement in place for federal judges. If a judge has reached the age of 65 and has served for at least fifteen years, they may elect to assume senior status, which entitles them to work part-time even though they have vacated their seat. They also continue to draw their full salary.

Although the scheme is designed to let elderly judges step aside with dignity to make room for new talent, its voluntary nature may undermine its effectiveness. Also, the idea of a judge handling any cases while suffering from a cognitive impairment tends to undermine confidence in the judiciary.

Although the majority of octogenarians and nonagenarians on the federal bench are almost certainly fit to serve, the question of what to do with judges who refuse to resign due to their declining faculties is one that will assume new urgency as the average lifespan increases.

In the end, it may be biology, not politics, that lends credence to Perry’s plan.

Christopher Halloran / Shutterstock.com

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After years of litigation, a class-action discrimination lawsuit against Wal-Mart Stores Inc. has been rejected by the Supreme Court. Over the last several years, Wal-Mart has been pushed into the spotlight by a series of lawsuits by disgruntled employees. This most recent discrimination case grew from a few disgruntled employees to one of the largest class-action lawsuits in recent memory. Three Wal-Mart associates have come together to try to sue Wal-Mart in a class-action lawsuit concerning discrimination against women in management positions.

The case reached all the way to the Supreme Court before all nine supreme justices sided with Wal-Mart’s contention that each discrimination case is unique to the store in which is allegedly  occurred and should be sought by the individual for any damages due.

This ruling is a big break for Wal-Mart, as they could have ended up paying billions of dollars to the 1.5 million female employees that have worked at the 4,300 Wal-Mart stores across the country since 1998. Theodore J. Boutrous Jr. and Theane Evangelis Kapur, the two main defense lawyers for Wal-Mart, have pointed out that there are numerous success stories of women who started out in entry-level positions and were promoted to various levels of management. Their hiring and promotion policy also specifically prohibits discrimination when determining a candidate for any position, including management.

Betty Dukes, one of the three women who began this lawsuit, argues that during her employment at Wal-Mart she witnessed male associates get promoted, while female associates with similar qualifications were passed up. In her own case, she spoke with upper management numerous times concerning her desire to be promoted, but to this day, she has still not been promoted. She was even demoted after she got change from a register while on the clock.

Dukes felt singled out by this demotion because other associates had done this before, and had never gotten in trouble. She felt that this discrimination was based on her gender, and that other women who work at Wal-Mart had experienced this discrimination as well. Now that the Supreme Court has ruled these discrimination cases must be taken up individually, if Dukes chooses to continue her case, she will have to start all over again and bring action against the specific Wal-Mart where she was employed.

Despite their strong equal opportunity policy, Wal-Mart’s hiring and promotion process is based on the discretion of the management in that particular store. Those with the responsibility of assessing candidates for different positions in their store are instructed to “not tolerate discrimination in employment, employment-related decisions, or in business dealings on the basis of race, color, ancestry, age, sex, sexual orientation, religion, disability, ethnicity, national origin, veteran status, marital status, pregnancy, or any other legally protected status”

(http://ethics.walmartstores.com/IntegrityIntheWorkplace/Nondiscrimination.aspx).

In the case of the defendants, they may or may not have been discriminated against.

Although management is supposed to remain unbiased, that does not stop some individuals from breaking from policy and hiring someone based on personal preference instead of for that person’s individual qualifications. Boutrous and Evangelis Kapur have stated that Wal-Mart is not opposed to the three defendants taking their complaints against the particular stores in which the discrimination supposedly occurred. If this discrimination did happen, then the members of management responsible should be reprimanded for not following company policy and they are perfectly justified in seeking compensation.

This chapter of the case is closed, but Wal-Mart may have only opened itself to a large number of small claims by all of the individuals working at Wal-Mart that sided with Betty Dukes. In any case, this ruling will have an important impact on what constitutes a class-action lawsuit, and whether or not big businesses really can be held accountable for their actions.

Image Courtesy of  http://www.flickr.com/photos/fourstarcashiernathan/3482824061/

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The strange battle over marijuana continues. Despite many states legalizing, at least, medicinal marijuana, the stigma continues to prevail. Employers who cannot dismiss a person for being prescribed Xanax or morphine can dismiss an employee for testing positive for marijuana, even if the drug is prescribed.

A Washington State Supreme Court decision concluded that the medical marijuana act in the state protects users from criminal prosecution but it offers no protection from employer’s dismissals. The court ruled on a case that began back in 2006. A woman was fired from her job at a Bremerton customer service firm for failing a drug test. The woman testified that she uses medicinal marijuana for debilitating migraines.

The Washington state Supreme Court issued an 8-1 decision last week, pointing out that while it was legal to use marijuana for medical purposes, the state’s medical marijuana law did not make it mandatory for employers to accommodate pot use outside of work. While the law gives employers the authority to prohibit the use of pot while at work, it does not specifically define how the use of marijuana outside of work will be treated.

In addition, the Supreme Court ruled that the Human Rights Commission, which looks into cases of employee discrimination in Washington State, cannot mediate in medical marijuana cases, as marijuana use – medical or otherwise – is still considered illegal under federal law.

The case exposes ongoing inconsistencies in legislation regarding the rights of medical marijuana users. Michael Subit, the plaintiff attorney in this case, stated he would be “flabbergasted if qualified patients could lose their jobs simply for using medical marijuana at home in accordance with the act.”   The problem with marijuana and drug testing is that there is no accurate test to determine if someone is actually under the influence. Marijuana has such a slow half life that the drug will show up in someone’s system long after the effects have worn off. Employers over the last decade or so have made drug testing the norm, dismissing potential employees for positive drug testing. However, the standard drug test does not work in states where marijuana is legal for medicinal purposes. The drug will show up in drug tests and can be used to unjustly discriminate against those individuals with disabilities. Doesn’t the American with Disabilities Act protect against just this sort of thing?  The inconsistencies and the new challenges suggest that this dilemma may have to be solved by the U.S. Supreme Court.

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In a relatively non-shocking decision, the United States Supreme Court has sided with corporate giant Wal-Mart in a sex discrimination suit. The plaintiffs in the case were seeking to make the sexual discrimination lawsuit into a class-action, involving up to 1.6 million women. The decision has far-reaching implications for employee rights and big corporations.

The justices voted along party lines by a vote to 5-4,reversing an earlier decision by the 9th U.S. Circuit Court of Appeals in San Francisco. The High Court said there were too many women in too many jobs at Wal-Mart to form into a class action suit. Wal-Mart could have faced billions of dollars in damages. The few women who brought the case are prepared to bring claims against the retail giant on their own. Of course, individual lawsuits will place much less pressure on Wal-Mart and involve less money. Two of the named plaintiffs, Christine Kwapnoski and Betty Dukes, attended the argument. Kwapnoski is an assistant manager at a Sam’s Club in Concord, Calif. Dukes is a greeter at the Wal-Mart in Pittsburg, Calif.

In a statement, Wal-Mart said, “The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy.”

Dukes and Kwapnoski said they were disappointed in the ruling, but vowed to push ahead with their claims. Both women spoke on a conference call with reporters. “We still are determined to go forward to present our case in court. We believe we will prevail there,” Dukes said. “All I have to say is when I go back to work tomorrow, I’m going to let them know we are still fighting,” Kwapnoski.

Other advocates were also disappointed with the Supreme Court decision. Marcia D. Greenberger, co-president of the National Women’s Law Center, said “the court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights.”

The Supreme Court agreed with Wal-Mart’s argument that being forced to defend the treatment of female employees regardless of the jobs they hold or where they work is unfair. Justice Antonin Scalia’s opinion for the court’s conservative majority said there need to be common elements tying together “literally millions of employment decisions at once,” which he felt was absent in this case.

Justice Ruth Bader Ginsburg, writing for the court’s four liberal justices, said there was more than enough uniting the claims. “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores,” Ginsburg said.

Both sides have argued that the ruling could have severe consequences. The business community, who supported Wal-Mart, has said that a ruling for the women would lead to a flood of class-action lawsuits based on vague evidence. Supporters of the women, including civil rights groups, feared that a decision in favor of Wal-Mart could remove a valuable weapon for fighting all sorts of discrimination.

Image Courtesy of  http://www.flickr.com/photos/drewesque/

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The Wisconsin Supreme Court has upheld the controversial act that stripped most public sector unions of the right to collectively bargain.

By a 4-3 majority, the Supreme Court ruled that Dane County Circuit Judge Maryann Sumi had “usurped the legislative power which the Wisconsin constitution grants exclusively to the Legislature” when she issued an injunction prohibiting the enforcement of the act due to violations of the state’s open meetings laws.  “There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees,” the court said.

In her dissent from the majority opinion, Chief Justice Shirley Abrahamson accused the court’s conservative majority of displaying partisanship in their ruling.  She also argued that the case should not have been allowed to leapfrog the usual appellate process.  “Only with a reasoned, accurate analysis can a court assure the litigants and the public that a decision is made on the basis of facts and law. free from a judge’s personal ideology and free from external pressure by the executive or legislative branches, by partisan political parties, by public opinion or by special interest groups,” she said.

The Secretary of Administration, Mike Huebsch, has said that his office will start implementing the law “when appropriate.”

Image Courtesy of  http://www.flickr.com/photos/wisaflcio/

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The United States Supreme Court ruled on Monday that the overcrowding conditions in California State Prisons constitute cruel and unusual punishment.  Many of the state’s prisons operate at well over capacity.  The state’s 140,000 inmates are housed like sardines in the 33 prisons state wide that were designed to hold only 80,000 individuals,

California’s oldest jail, San Quentin State Prison, is home to some of the state’s most dangerous death-row prisoners. Keeping the facility even remotely sanitary given the overcrowding is almost impossible, said Jeanne Woodford, former San Quentin Warden who worked at the facility for a total of 27 years, starting as a Correctional Officer. “These prisons are falling apart,” she said. The inmates locked up in the California state prisons commit suicide at double the national inmate average, experience unprecedented rates of lock-downs, receive inadequate medical treatment and sometimes live in continuous fear of violence.

These horrendous conditions were highlighted in a ruling by the Supreme Court on Monday.  The high Court stated that the prisons in the state violate the Eighth Amendment, which protects against cruel and unusual punishment in a 5-4 decision.  The court ordered California cut 30,000 inmates over the next two years.”Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve,” wrote Justice Anthony M. Kennedy for the majority.

Brown vs. Plata, began two decades ago when overcrowding was not a problem.  The lawsuit was filed in 1990 on behalf of the system’s mentally ill patients, many of whom were either not receiving their medication or overmedicated to the point of being comatose. Without proper treatment, the inmates often turned to suicide or became very psychotic.

In the mid 90’s, sentencing guidelines changed and more and more criminals were housed in prisons for longer stays.  The newly built psychiatric wards were quickly converted into dormitories, and the number of patients overwhelmed the doctors and therapy programs. Therapy sessions that did occur often took place outside, with each “at risk” inmate squatting in a tiny cage, according to Michael Montgomery, an investigative reporter for California Watch who has been reporting on this story for years. In the written decision, Kennedy noted:

“Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “‘no place to put him.’”

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An enormous lawsuit against Wal-Mart for charges of sex discrimination was heard by the U.S. Supreme Court on Tuesday.  At stake is whether the suit can go forward as a class action that could involve 500,000 to 1.6 million women, according to varying estimates, and potentially could cost the world’s largest retailer billions of dollars.

Women employees at the retail giant claim that men make more money and get promoted faster than their female counterparts.  One plaintiff in the suit said she was told to “doll up” and “blow the cobwebs off her make-up.”  The suit was originally filed 10 years ago and Wal-Mart has been fighting the litigation every step of the way.  It is the biggest litigation threat that the company has ever faced.

The lawsuit, however, has much further implications beyond the original claim of discrimination.  Discrimination suits are much more powerful when they are presented together as a class action suit and can often force change.  Columbia University law professor John Coffee said that the high court could bring a virtual end to employment discrimination class actions filed under Title VII of the Civil Rights Act of 1964, depending on how it decides the Wal-Mart case.  “Litigation brought by individuals under Title VII is just too costly,” Coffee said. “It’s either class action or nothing.”

Wal-Mart wants the Supreme Court to stop the lawsuit, even though a trial judge and the federal appeals court in San Francisco has allowed the suit to go forward.  Wal-Mart argues it includes too many women with too many different positions.  The company claims that its policies prohibit discrimination and that most management decisions are made at store and regional levels.   Theodore J. Boutrous, Wal-Mart’s California-based lawyer, said there is no evidence that women are poorly treated at Wal-Mart. “The evidence is the contrary of that,” Boutrous said.

Wal-Mart is not saying that no women face discrimination but feels that these incidents would be isolated.  “People will make errors,” said Gisel Ruiz, Wal-Mart’s executive vice president for people, as the company calls its human resources unit. “People are people.”

The suit, citing what are now dated figures from 2001, contends that women are poorly represented among managers, holding just 14 percent of store manager positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour. Wal-Mart responds that women in its retail stores made up two-thirds of all employees and two-thirds of all managers in 2001.

A ruling is expected by late June in the hearing.

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