December 2009

  • December 15, 2009

    The Obama administration announced today that it will move detainees from Guantanamo Bay to the correctional facility at Thomson, Ill.

    "The administration plans to expand the security perimeter of the facility, make it the most secure in the country and hold U.S. military commission trials inside its walls," Reuters reports. "The move is part of Obama's struggle to fulfill a campaign pledge to close the Guantanamo Bay, Cuba, U.S. naval detention camp prison, which was opened in 2002 after the Sept. 11, 2001 attacks to house foreign terrorism suspects."

    Supporters of the plan have come from across the political spectrum, though there were vociferous criticisms lobbed upon the administration's announcement. Among those eager to have the facility house Guantanamo detainees are residents of Thomson. "The move is expected to bring about 3,000 new jobs to ... a region afflicted by high unemployment," reports The Guardian

  • December 15, 2009
    Opponents of health care insurance reform continue to hammer away at health coverage mandates that Congress is mulling. But David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, maintains that those opponents are pushing a wobbly argument. In a column for The Huffington Post, Orentlicher, also on the faculty of the Indiana University School of Medicine, concludes that such mandates are "justified by the Constitution's grant to Congress of a taxing power and a commerce clause power."

    Orentlicher writes:

    The taxing power is a well-established basis for enacting an individual mandate. Indeed, this country has had a tax-based mandate to purchase health care insurance for nearly 45 years. The Medicare program imposes a payroll tax on Americans as a way to fund coverage of their hospital costs once they reach age 65. People cannot opt out of Medicare; it is an obligatory system of health care insurance for one's senior years. Similarly, Congress can use a payroll tax to implement a mandate for individuals to purchase health insurance before they reach age 65. Under the House bill, for example, people will pay a 2.5 percent tax on their income unless they have health care coverage.


    Under the commerce clause, Congress has the power to regulate interstate commerce, and the health care insurance industry clearly falls within the Supreme Court's understanding of interstate commerce.

    Orentlicher's entire piece is available here. For more on the debate over individual mandates, see analysis from Professors Erwin Chemerinsky and Robert A. Schapiro

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  • December 14, 2009
    Sen. Joe Lieberman's threat to kill health care reform with a filibuster has promoted Sen. Tom Harkin to consider pushing legislation to end the obstructive tactic. Harkin, TPM reports, said, "I think there's a reason for slowing things down ... and getting the public aware of what's happening and maybe even to change public sentiment, but not to just absolutely stop something." TPM notes, however, that altering Senate rules, especially the filibuster, "would be a Herculean feat." 

    But Washington, D.C. attorney Nicholas Stephanopoulos writes for The New Republic that senators might be able to seriously discuss the filibuster's fate if they did so in the context of ending it at a future date. Citing famed philosopher John Rawls, Stephanopoulos, a board member of the ACS Washington, D.C. Chapter, writes that lawmakers could tackle this debate if they did so "behind a ‘veil of ignorance.'" Senators are far too self-interested to dump the filibuster now, says Stephanopoulos, but they would likely be more objective if they debated the issue for future generations.

    Stephanopoulos writes:

    A debate now on whether to eliminate the filibuster in the future would transform senators' decision-making calculus. The key question would no longer be whether they enjoy the personal clout conferred by the filibuster, or whether it advances or threatens their parties' agendas. The issues, instead, would be whether it makes sense for almost all Senate business to require a supermajority, whether 40 senators representing as little as 10 percent of the population should be able to block a bill, and whether the Constitution's many checks and balances should be supplemented by yet another procedural obstacle. Many more senators likely would say no if self-interest and partisan advantage were, for the most part, removed from the equation.

  • December 14, 2009

    At a recent ACS event exploring criminal justice policy, Sen. Jim Webb and Rep. Robert C. Scott said the nation needs to confront shortcomings of the criminal justice system.

    Below are two YouTube clips of the lawmakers' comments. Webb discussed legislation he is sponsoring, the National Criminal Justice Commission Act, and Rep. Scott said that tough-on-crime laws have proven ineffective and costly.

    Webb said, "America's criminal justice system is broken and its inequities cut against the notion that we are a society founded on fundamental fairness. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process."

    Rep. Scott said, "Research clearly demonstrates that a comprehensive approach - a strategy of prevention, early intervention and rehabilitation will significantly reduce crime and usually save more money than you spend it the process." Video of the event, including the lawmakers' entire comments, is available here.


  • December 14, 2009

    Second Vacancy Opens at 10th Cir.: Chief Judge Robert Henry, appointed by President Bill Clinton, steps down.

    4th Cir. Nominees Get Hearing: Judges James Wynn and Albert Diaz have hearings scheduled before the Senate Judiciary Committee this week.

    Judicial Conduct Commission Profiled: Texas' State Commission on Judicial Conduct has risen into public view amid the investigation into the state's top criminal court judge.

    Who Should Recuse Who?: Federal judges to put up "stiff resistance" to recusal rules being debated in the House of Representatives.

    Judges, Friends & Facebook Friends: Florida judges are now operating under new guidelines for how they interact digitally with lawyers.