November 2010

  • November 4, 2010

    In a "historic upset," the three justices in Iowa up for retention elections were voted out of their seats following a well-funded campaign to remove the justices because of their decision to allow same-sex marriage.

    The vote marked the first time a judge has lost a retention election in Iowa since the retention system was implemented in 1962, The DesMoines Register reports. In the retention system, judges who were initially appointed are subject to an up-or-down vote with no opponent.

    "What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office," University of California, Irvine, School of Law Dean Erwin Chemerinsky, told The New York Times. "Something like this really does chill other judges."

    Conservative groups in 16 states launched similar campaigns against judges, spending more on retention elections this year than was spent in the past decade, but Iowa was the only state in which the justices lost their retention election, The New York Times reports.

  • November 4, 2010
    Republican gains in governorships following this week's midterm elections means additional states will join efforts to topple President Obama's landmark health care reform law, according to CQ HealthBeat News.

    Republican governors and attorneys general elected in five states - Wisconsin, Ohio, Oklahoma, Kansas and Wyoming - "have vowed to lend their support to a health care lawsuit filed in U.S. district court in Florida," CQ reports.

    The article notes that along with Ohio Gov. Ted Strickland, state Attorney General Richard Cordray was cast out by voters. Cordray had refused to join legal action against the Affordable Care Act (ACA), saying such challenges were legally suspect and a waste of scarce public resources. In a column for The Plain Dealer, Cordray said Congress did not exceed its constitutional powers in passing the law. "I do not believe in wasting taxpayer dollars to pursue political agendas through symbolic lawsuits," he wrote. Many constitutional law experts concurred that the lawsuits are on wobbly legal grounds.

    New congressional members are also vowing increased opposition to the law.

    Republican lawmakers, such as Rep. John Boehner, likely the Republican speaker of the House and Senate Minority Leader Mitch McConnell have reiterated their desire to pass legislation repealing the health care reform law. N.C. Aizenman in a piece for The Washington Post writes that chances of repealing the health care reform law "are slim to nil at least through 2012."

    The article continues, "While the Republicans have regained control of the House, they will remain the minority in the Senate. So it's unlikely Congress could even pass a repeal bill. But even if that were to change, as long as President Obama remains in office it's a safe bet he would veto such a measure."

  • November 4, 2010
    Getting it Done
    How Obama and Congress Finally Broke the Stalemate to Make Way for Health Care Reform
    Sen. Tom Daschle and David Nather

    By Sen. Tom Daschle, former Senate Democratic Leader and a senior policy advisor at DLA Piper.
    In our new book, "Getting It Done," my co-author, David Nather, and I assert that with the passage of The Patient Protection and Affordable Care Act (ACA) eight months ago, for the first time this country is in a position to meaningfully address the critical cost, access and quality problems in health care that continue to confront our nation. Obviously, even the most ardent proponents and opponents would agree that the position we are in today represents only a start, not a finish, to the effort.

    This is football season, and if this were a football field, proponents of the ACA would be on about the thirty yard line with at least seventy yards to go. There will be fumbles, lost yardage and lost opportunities to score. But whether it gets done by making it to the goal line several times during the "game" depends, just like football, on both offensive and defensive strategies. There will continue to be great need for both.

    The defensive effort largely surrounds three specific threats that in varying degrees have already begun to play out. The first involves the court challenges to the law. One or more of the cases involving the authority of the federal government in health care policy will work its way to the U.S. Supreme Court perhaps as early as next year. After reading the opinions of many constitutional experts, I remain reasonably optimistic that the Obama administration's position will be sustained.

    The second involves the Congress. Should Republicans follow through with their campaign pledges, we can expect legislation to either repeal or defund the Affordable Care Act early in the next session. While efforts to repeal are completely futile, defunding is a serious threat. It is hard to veto something the Congress doesn't do. And not providing funding for implementation will be a scenario for which the Administration must quickly prepare. Here the best defense is a good offense, and it will be imperative that supporters of the ACA inform the country of the devastating implications of defunding, including the instability it will cause in the health care system and the uncertainty it will cause for businesses and consumers. Today, ACA opponents appear largely unaware of the popularity of many of the key provisions of health care reform. It is up to us to change that.

  • November 3, 2010

    A number of American Constitution Society members, participants and supporters won their elections this week. ACS congratulates the following winners:

    • Sen. Kirsten Gillibrand (New York)
    • Sen. Patrick Leahy (Vermont)
    • Sen. Charles Schumer (New York)
    • Sen. Ron Wyden (Oregon)
    • Rep. Diana DeGette, 1st Congressional District of Colorado, U.S. House of Representatives
    • Rep. Hank Johnson, 4th Congressional District of Georgia, U.S. House of Representatives
    • Rep. Jan D. Schakowsky, 9th Congressional District of Illinois, U.S. House of Representatives
    • Massachussetts Gov. Deval Patrick
    • Massachusetts Attorney General Martha Coakley
    • Maryland Attorney General Doug Gansler
    • Iowa Attorney General Tom Miller
    • Minnesota Attorney General Lori Swanson
    • New York State Sen. Eric Schneiderman, elected New York Attorney General
    • California Supreme Court Justice Carlos Moreno

    ACSblog will add names to the list as races are called. Please provide the names of other ACS-affiliated individuals who won elections in the comments.

  • November 3, 2010
    Guest Post

    By Alex J. Luchenitser, Senior Litigation Counsel for Americans United for Separation of Church and State
    This morning I attended the Supreme Court argument in Arizona Christian School Tuition Organization v. Winn, a case where a group of taxpayers are challenging an Arizona tax-credit program that primarily benefits religious schools. The taxpayers allege that the program violates the separation of church and state.

    The first lawyer to argue in support of the program was Neal Katyal, the Acting Solicitor General of the United States. On behalf of the Department of Justice, Katyal asserted that taxpayers have no right to challenge the Arizona program, or, for that matter, any other tax credit or tax deduction that benefits religious institutions.

    The Supreme Court has decided the merits of a number of cases where taxpayers challenged tax exemptions and deductions that aided religious groups - implicitly concluding that the taxpayers had the right to bring the challenges. Yet Katyal expressly urged the Supreme Court to overrule all of those cases, contending that a tax credit does not involve the spending of public money.