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The District Court in Florida recently declared the new Health Care Law unconstitutional. Of course, this decision will still need to be appealed to the Court of Appeals and the Supreme Court, but the Judge carefully outlined the reasons for his declaration in the written opinion. Although I would have listed a few more reasons, I was impressed with some of the rationales he listed. I especially liked the fact that he went back to the actual language in the Constitution as it was intended when written. I know that is not the popular way to interpret the Constitution, but it does make sense. To summarize: Interstate commerce means interstate trade. Trade means the movement of goods in exchange for money. Insurance does in no way fall within this category. Insurance is a service, not a physical product which can travel in a truck on I-35 between Texas and Illinois. Basically, despite all of the reasons you may have heard about why this law is unconstitutional, the best one is the simplest one: it is not authorized under Section 1 Article 8 – the section which grants Congress the power to pass laws. The powers in this Article were enumerated in order to LIMIT federal government. As you can imagine this was a huge concern to our founding fathers.
There has been some talk of repealing the Health Care Act, but I hope this doesn’t happen. I would like to see the Supreme Court rule on this issue. If they do interpret the Constitution the way it was intended, they will find that Congress did not have the authority to pass this Act and it would open the door for States to bring other lawsuits concerning federal laws outside the purview of Article 1, Section 8, of the Constitution. I can envision California taking on the establishment of the DEA, for example, or the passing of laws that criminalized the possession of marijuana and made it a federal offense under the Commerce Clause. (Remember, police power is reserved to the States so the only way these laws could be passed and these agencies established was through a tenuous connection to interstate commerce. Of course, the commerce clause wasn’t intended to criminalize trade. Well, at least the sale of marijuana would fall under the definition of trade. The problem is that on the one hand Congress wants to force citizens to buy the services of for-profit corporations and on the other wants to prevent citizens from purchasing a plant. Neither type of law is authorized in the Constitution. Of course, our founding fathers were not averse to marijuana – it is believed that George Washington grew hemp on his farm.)
The bottom line is that the federal government has gotten out of control of the people. It is no longer acting as a government for the people, but rather as a government for more government. Congress is passing laws in areas beyond what the Constitution permits. This is not a right v. left issue or a liberal v. conservative issue. It is simply a matter of whether or not the States are going to permit the Federal government to continue down this road. It is up to us as citizens to elect state officials who will stand up to federal encroachment. The best way to get our country back and our economy out of the gutter is to vote. Vote in your state elections – they really matter.

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The Supreme Court has decided in American Needle v. the NFL, No. 08-661, that the National Football League Properties (NFLP) which was formed to develop, license, and market fan gear was not a single entity for antitrust purposes. In other words, the 32 teams could be violating anti-trust laws by licensing fan gear solely to Reebok in restraint of trade, which could have the effect of dampening competition. This case was brought by a small hat manufacturer whose license to sell football hats was not renewed when the NFLP gave Reebok the business for all 32 teams. This case was sent back to the trial court for further argument. As I wrote previously, Drew Brees argued very strongly against the NFLP being considered a single entity because of the potential for the NFLP getting around antitrust laws with respect to free agency, not just in the selling of hats. This seems to be the right decision as 32 teams which in fact compete with each other not just on the field, but also for fans, could carry a lot of clout in awarding contracts. By giving one license out to manufacturer fan gear, they prevented other manufacturers from competing with Reebok and keeping the prices down for all fans. Obviously, the NFLP has an interest in monitoring the licenses, as they receive royalties from these manufacturers, but it serves no purpose to limit the manufacturing and distribution to one entity.

Another case I recently commented on has been decided. The Arkansas Mom who made comments on her son’s Facebook page as though he had made them and then changed his password so he could no longer access his account was convicted of misdemeanor harassment on May 27, 2010. The Judge ordered the Mom to pay a $435 fine and attend anger-management and parenting classes. The comments on my previous post seemed to indicate that most felt it was not ok for parents to add or delete content from their children’s facebook account. Given that this mother in particular did not have custody of her son, used profanity with him and on his page, and changed his password; I stick with my first impression that this mother has problems with communication. I have a daughter with a Facebook account. When I see something on there that I think may present an issue, I call her attention to it and explain how others may view it. I leave it up to her whether or not to remove or change it, but the important part is I talk to her about it. Children sometime make decisions or post things impulsively and then forget about them. Most children will understand if you explain to them why their posting may not be appropriate. If this mother had truly wanted to “exercise supervision over her son’s Internet activities” as she claimed, there are a lot better ways to do it. I am happy this Judge explained to this woman why her actions were so inappropriate – he parented her well.

Earlier this year I commented on the case of Buono v. Salazar, SC 08-427 4-28-10 (the WWI Memorial case). It seemed from questions at oral argument that only Alito and Scalia were for reversing this case. However, the Court in a 5-4 split did recently reverse the lower court’s decision and allowed the monument to remain. It indicated that the lower court erred in invalidating the statute which allowed the transfer of land so that the monument would be transferred to private property. The Justices’ positions were as follows: Kennedy, J., wrote the majority opinion. Roberts filed a concurring opinion. Alito filed a concurring opinion in part. Scalia filed his own concurring opinion which Thomas joined. Stevens filed a dissenting opinion. Ginsburg and Sotomayor joined Stevens, and Breyer filed his own dissenting opinion.  I was very interested in seeing how Sotomayor would rule, but since she simply joined in the dissent, the only thing we can be sure of is that she felt the establishment clause had been violated.

The Court ruled that the “[p]lacement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.”  In addition, the cross has served as a memorial for almost 70 years. The court indicated that the statute should not have been invalidated because it was a legitimate solution to the problem of taking down a monument dedicated to those who died in WWI. The statute simply allowed the monument to remain by permitting a land transfer to the Veterans’ of Foreign Wars who initially installed the monument back in 1934.

In his dissent, Stevens essentially stated that the cross was a purely “sectarian message” and that the monument violated the establishment clause and the statute transferring it to private property was an “unambiguous endorsement of a sectarian message.” Given that 6 out of 9 Justices wrote their own opinions, it seems that this issue has not been clearly decided, but since they were only ruling on a statute, rather than all religious themed memorials, it does not seem that this case will have much impact on future issues.

In the Supreme Court case of Renco V. Lett, No. 09-338 (decided May 3, 2010) the Court held that no double jeopardy occurred when the defendant was retried on a murder charge after his first trial resulted in a hung jury. Despite the short amount of time the jury spent deliberating (4 hours), seven questions were sent to the Judge. It seems that the defendant was trying to indicate that because the Judge did not force the jury to go back and deliberate until they reached a verdict, the benefit of the doubt should go to him. In other words, he believed that the jury would have dismissed the case or decided on a guilty verdict for a lesser charge if they had been forced to deliberate more. The flaw here is that he didn’t object to the hung jury at the first trial, but at the second – where the jury found him guilty in less than 4 hours. It seems the Supreme Court was correct in affirming the Michigan State Supreme Court’s determination that the defendant’s rights were not violated and double jeopardy had not occurred.

In the Supreme Court case of Merck v. Reynolds, No. 08-905 (U.S.), the court affirmed the lower court’s holding that the statute of limitations did not begin running when questions about the side effects of Vioxx came to light. The plaintiffs, who owned Merck stock, sued Merck, the maker of Vioxx, for failing to properly inform or, alternatively, concealing from its investors the serious risks associated with the use of Vioxx. Apparently it doubled the risk for heart attacks, strokes, and death in those who took it for more than 18 months which Merck allegedly knew back in 2001. (Vioxx was withdrawn from the market by Merck in 2004).

The Supreme Court ruled that in general the 2-year statute of limitations for securities fraud does begin to run until the plaintiff actually discovers or reasonably should have discovered that the defendant had committed fraud. This ruling will permit the Merck investors to continue their securities fraud suit in federal court. It is a significant rule given all of the recent allegations of fraud in the private sector. It essentially prevents companies from running out the statute of limitations by concealing its fraud after problems begin to go public. This will allow investor suits to be brought in situations where the actual fraud does not come out until after problems with the subject product or service are made public. It would be unfair to force plaintiffs to file at the first sign of trouble, especially without having access to all of the facts that the defendant corporation has.

In the case of US v. Stevens which was decided this week by the Supreme Court, a federal statute banning the making or sale of animal cruelty videos was declared unconstitutional. The statute at issue was intended to criminalize “crush videos” (which I won’t describe here but depict horrendous animal cruelty). While there are some exceptions to the right of free speech – most notably the one for obscenity – the Court indicated that animal cruelty should not be an additional exception. In other words, the statute attempted to criminalize speech which is protected under the First Amendment.

 Despite the free speech analysis in the decision, I think the bigger issue is government encroachment on individual’s rights through the passage of federal criminal laws. Under the Bill of Rights, the federal government does not have police power; it was reserved to the states. Thus, the federal government does not have Constitutional authority to make and enforce criminal laws against its own citizens (except in a few very limited circumstances – such as regarding the military). While the result is right in US v. Stevens; it is for 10th Amendment reasons as opposed to 1st Amendment reasons.  I do believe that videos depicting animal cruelty are obscene and the making and distribution thereof should be criminalized, but this should be done at the state level.

This 10th Amendment issue is going to come up more and more frequently now that people are starting to question the extent of federal legislation in this country. I was hoping this opinion would have given us a clue as to how this Court will rule when a 10th Amendment argument is made to it. I imagine it will come up with respect to the federal marijuana laws and the Health Care Reform Bill. I for one will be looking at the wording of future Supreme Court decisions to see if I can determine how they will resolve this issue.