Why challenges against the Constitutionality of the Health Care Package are without merit and will fail.

There are three areas in which the Constitutionality of the health care package are supposedly being challenged: (1) individual mandates, (2) federal government placing mandates on the states in the form of additional state funds required for medicaid and (3) the federal government placing mandates on the states requiring the states to create insurance exchanges.

Let’s look at them one by one.

1. Individual mandates requiring people to procure health insurance.

This falls under the taxing and spending clause of the Constitution, which states, in pertinent part, that “[t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” U.S. Const. Art. I, § 8, Clause 1.

Even by its plain language, it is easy to see how this health insurance mandate is Constitutional, but case law still backs it up. Not since the 1918 case of Hammer v. Dagenhart has the Supreme Court found anything resembling the current issue unconstitutional. Hammer was overruled by United States v. Darby Lumber a few years later, and the rest is history.

In tax code, there are all kinds of instances when things like this happen; where Congress uses taxing authority to further general welfare. Rebates for purchases, tax deductions on home mortgages, better tax rates for married individuals versus single, etc.

The challenge against individual mandates fails.

2. A mandate against the state, requiring additional state funds be put into Medicaid.

The increased state outlay into Medicaid is matched by a large Federal outlay into Medicaid. Once again, this falls into the Constitution’s tax and spend clause. The Federal government cannot “force” the state to comply with its federal law, and it is not. The state can still choose to not contribute any additional funds to Medicaid, with the result being that they will then not receive any Federal Medicaid funding. (A common example of a similar law already in place is DUI law: states must enact the .08 DUI law or else lose Federal highway funding.)

The four-prong test to determine if a Federal statute enforced through the tax and spend clause passes Constitutional muster is that the statute must (a) be in pursuit of general welfare, (b) be unambiguous, (c) be related to the federal interest, and (d) be non-coercive.

No one can argue that the statute easily passes (a), (b), and (c). The challenges are arising on (d): the statute cannot be coercive. The state Attorneys general are arguing that the amount of money involved is so disproportionate that they cannot possibly turn it down, leaving them without the option to withhold additional state Medicaid funding. Proportionality is determined by comparing cost to benefit; to be disproportionate, the cost must significantly outweigh the benefit. In this case, however, the additional Medicaid funding is not disproportionate at all: increased funding to Medicaid (cost) results in a directly proportionate benefit (Medicaid to additional people).

The challenge against additional state funding of Medicaid fails.

3. A second issue of a state mandate, whereby, under the statute, state insurance exchanges are to be formed.

The Attorneys general argue that both New York v. United States (unconstitutionality of a federal law requiring states to “take title” and assume responsibility for any nuclear waste produced within their borders) and Printz v. United States (unconstitutionality of federal law that required state police to be involved during the interim period of the Brady handgun bill) preclude the federal government from commandeering state resources by requiring states to form insurance exchanges. The Attorneys general invoke the 10th amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” to claim the unconstitutionality of the federal government making these laws.

However, unlike New York and Printz, the current health care package provides that, if the state does not set up an insurance exchange, the federal government will. The state is not forced to do anything.

Further, in Darby, the Supreme Court held that the 10th amendment was nothing but a “truism”: if Congress has the power, it does not violate the 10th Amendment; if Congress does not have the power, it violates the 10th Amendment. In other words, the 10th Amendment does not add any additional Constitutionality or unconstitutionality to something that has been deemed either Constitutional or unconstitutional by other Amendments and Articles.

Insurance has always been held to be a federal matter; it has only been regulated on a state level because Congress ceded the power to the states through, amongst other things, the McCarran Act. So, just as Congress gave states the power, it can take it away. Since health insurance falls under Federal power, the health insurance package does not violate the 10th Amendment.

The challenge against insurance exchanges fails.

Why Washburn?

I'll be starting law school in the Fall.  Moving away from Wichita shortly before.  Taking my life back to college and away from the "real world" like a needle scratching vinyl.  I wouldn't call it a d0-over, as I'm fairly certain I wouldn't have been able to do this the first time around.  But now, I suppose, things are different.  I'm different.

I applied to 7 different law schools.  I've read where the current economic recession/depression hasn't noticeably increased the number of law school applicants for the current cycle, but rather the number of applications each applicant has sent out.  It would seem I'm of that statistic.

Of those 7 schools--Washburn, University of Kansas, University of Missouri Kansas City, Tulsa, University of Oklahoma, Southern Methodist, and William & Mary--I've been accepted to the first 4, waitlisted by the 5th, and am still waiting to hear from the sixth.  I applied to all but the 7th merely due to regional geography and realistic expectation of admittance; the 7th, William & Mary, had sent me an application fee waiver after I took my LSAT, but like the Anglo-monarchially-named Virginian teases they are, they were only setting me up for a bump-in-their-selectivity-ranking rejection.

My initial target school was KU, and, conveniently, they were my first admittance.  The others soon followed.  There was an interesting phone conversation with an OU admission officer who wanted to gauge my long-term residency aspirations for the state of Oklahoma.  I was honest, and then I was waitlisted.

Washburn and KU became my top two choices, especially once I received scholarships from both.  Washburn's offer exceeded that of KU's by about 6 times, however, covering nearly the full amount of my tuition.  Jackpot.

But it's not just about money.  Every time I've visited Washburn, I've felt like I've just belonged.  Conversations with professors, students, staff, etc. made me feel like they genuinely wanted me to study there.

In relation to other law schools, Washburn's "regional" status implies that I'll need to work in the Kansas area for around 5 years post-graduation, which is fine with me.  I'll also have lesser BIGLAW prospects than at, say, SMU, but BIGLAW = leasing my every breath, 80 hours a week, to the gears of a large legal machine that I've no interest in turning.  As the Doors say in 5to1 (and I promise this is the first and last time I'll quote Jim Morrisson), "Trade in your hours for a handful of dimes."  No thank you.

So Washburn it is.  I start on August 17th, and I'd be lying if I said I wasn't really looking forward to it with a kind of nervous anticipation I haven't felt in a while.  It might be a temporary step back, but it's good to know that's the right direction.

Jury Duty

I was selected for Jury Duty this last week.

I've never done it before, but it's always been something I've wanted to do.  As a soon-to-be law student, the timing couldn't have been more perfect.

It was a quick one-day trial for what was essentially a domestic battery case.

Pieced together from testimony, it sounded like the defendant got into an argument with his girlfriend which escalated into a physical altercation. She fell down, he jumped on top of her and hit her, then tried to strangle her with a box fan power cord. After a undetermined time passed (she said 5 minutes.... which we knew was impossible because, if strangled that long, she would be dead), he got off of her and it resumed as a yelling match.

In walks her 18 year old son who immediately instructs the defendant to leave. He does, but only after throwing a chair at the mother.  The son walks into the bedroom and talks to the mom. Mom doesn't want to call the police, son does. After 5 or so minutes, defendant walks back into the house (he has keys) and gets into an altercation with the son.

Defendant picks up a steak knife from either the dining room table or the kitchen counter (son's in-court testimony said table, officer report from immediately after the incident had the son saying kitchen counter) and tells the son, "If you come near me, I'm going to kill you and send you and your mother to hell where her other son is."

Son immediately lunges at the defendant. Defendant never drops the knife but son holds defendant's arm in a way where the son cannot be stabbed. Son pushes defendant out the door, at which time he punches a window pane, breaking it.

Police are finally called at this point, and arrive on the scene a few minutes later. They find the defendant walking on the street a few houses down the block. They find the steak knife on the ground near him.

Evidence consists of photo of the woman's neck with two linear rope-burn-type marks, photo of the broken chair, photo of the box fan, photo of the broken window pane, photo of the knife as found at the scene, the knife itself (detective was unable to find fingerprints on it), and a photo of the defendants left hand which had some scrapes and small lacerations on it.

Also, testimony by the mother, the son, three officers who arrived on scene and took statements, the detective who tried to get fingerprints off the knife, and the defendant.

Defendant's testimony says that he was attacked by the woman, he tried to defend himself, then the son jumped in and started beating him too. He finally gets away, and possibly (it sort of sounded like he made it up right there on the stand) broke the chair as he was running out of the apartment. When he was asked at what point the knife entered the equation, he said he never saw a knife during the incident, but later surmises that maybe the knife was what caused the lacerations on his hand.

Two charges were filed against the defendant:
Battery against the mother.
Assault with a deadly weapon against the son.

Here's how we judged the case:

I was jury foreman.

The defendant's testimony was obviously flaky, as witnessed by the knife discrepancy (if I got stabbed in the hand with a knife, you're damn sure I would know a knife was involved in the altercation) so we pretty much just threw it out altogether as unreliable. However, he could of gotten up there and talked about balloons as the burden was on the prosecution to prove their case.

Well, we all thought the second charge of aggravated assault with a knife was plausible, but there was really no prove that the defendant threatened the son. Even the son's testimony quoted the defendant as saying "If you come at me, I'm going to blah blah", so it didn't ever feel like it fit the definition of assault.

So I took a vote and it was a unanimous "not guilty" on the assault charge.

The battery charge was different. Something obviously happened, and it wasn't what the defendant said, so it took a bit more discussion. At first vote, there were 3 guilty and 9 not-guilty. 

We eventually surmised that the defendant did, in fact, wrap the cord around the mother's neck. But was it self defense from an attack from the mother? A quick read through of the requirements for a self defense case said the stipulations were not present, so even if the girlfriend/mother started the physical part of the altercation, there was no way to prove it.

So, then, it came down to this: the intent was obviously there, the facts were there, and the mother's testimony (albeit a little shaky itself) was there, so I and the two other "guilty" votes eventually convinced the rest of the jurors that he was guilty of the battery charge.

All in all, a great experience. I loved it.

The missing lucky

So many stories you hear told by people come to a conclusion with the caveatal phrase "But, knowing my luck....", as if to say "I know it's my lot in life to be cursed with terrible luck and all the good stuff I just told you that might happen to me probably won't because they never do."

My question is, where are all the people who think they've got good luck. Do you know any? Have you heard of any?

I'm struggling to recall if I've EVER come across anyone who did. Cocky with good luck, I guess you could say.

"Knowing my luck, I'll probably lose all these lottery winnings in a few years anyway."

"Knowing my luck, she'll realize that she's a supermodel and I'm just a magician who takes himself a little to seriously."

"Knowing my luck, my parents will realize that I'm not heir to their fortune after all, and all this hotel money will go to someone a bit more deserving."

"Knowing my luck, I'll try to think of some good examples of what I'm talking about but will only be able to come up with plaid out or seriously dated ones."

Yeah, I did that.

One way that writing leaves a good impression...

The degree to which it impresses me when waitstaff take all the orders at a table without writing anything down and get everything right is far less than the degree it irritates me when waitstaff take all the orders at a table without writing anything down and get something wrong.

So shall it be written, so shall be done.  So shall it be not written, so shall it be a crapshoot.

(G * m1 * m2) / (d2)

About three months ago I traded in my old truck--a vehicle that just about burned gas just as fast as you could pour it on the ground--for something a bit more economical.  

I'd like to think it's also "sporty", "sexy", and a few other testosterone fueled adjectives.... but to be honest (and what's more manly than honesty?) it's really just an ordinary, economical car.

That was, until today.

Driving home from work, all four windows down and sunroof open, I had an empty gladware-style tupperware container from my lunchtime peanut butter and jelly, strawberry, sitting on my passenger seat.  (Just so you know, yes, "peanut butter and jelly, strawberry" is the James Bond of sandwiches.)

Hitting 30mph, I glanced to my right and saw the clear plastic container start to levitate.  LEVITATE.  As in, lift off the seat as if to look at me and say, "Hi... how are ya?"

Now, I know you'll probably claim it was a wind vortex or some other thermodynamic mumbo jumbo which picked up the light object and blew it in the air until it reached an equilibrium with the earth's gravitational pull approximately 6 inches off my passenger seat.

And to that I say, "Phoey".

My car, aside from economical, is also an anti-gravity device.  It's the only scientifically plausible explanation.

So here's what I'm proposing:  I'm going to rent out my passenger seat for situations where a little less gravity is desirable.  

Biggest Loser style weight loss competition weigh-ins.  Shipping packages via UPS or Fed Ex.  Paying for produce.  Astronaut training.  Pulling X-Wing fighters out of swamps.  Eating Spangles.  All situations in which little or no gravity would be beneficial.

"Step right up, sign right up, and be prepared to travel weightlessly at the rate of 30 miles per hour!"

Finally, I've an excuse to buy a top hat!