November 2017

  • November 13, 2017
    Guest Post

    by Nicole Huberfeld, Professor of Health Law, Ethics & Human Rights, Boston University

    For a long time, Americans could count on employment to obtain health insurance benefits. The strong link between full-time work and health insurance survived so long that most Americans assume those who work have health insurance, and those who do not have health insurance must not be working. Yet, part-time work has always been very weakly linked to employer-sponsored health insurance benefits, and individuals working in minimum-wage and hourly-paid jobs are much less likely to be offered health insurance as an employment benefit or to be able to afford if offered.

  • November 9, 2017
    Guest Post

    by Jeff Mandell, chair of the Madison Lawyer Chapter and partner, Stafford Rosenbaum LLP, and Craig Mastantuono, chair of the Milwaukee Lawyer Chapter and partner, Mastantuono & Coffee S.C.

    More than 120 lawyers representing 16 different states gathered in Milwaukee last month for ACS’s first-ever National Lawyer Convening. We were honored to serve as co-hosts of this gathering, which was both a great success and a lot of fun. It was exciting to welcome our ACS counterparts from all corners of the nation to Wisconsin, and inspiring to draw on their energy and to learn about how much ACS Lawyer Chapters are doing coast to coast.

  • November 8, 2017
    Guest Post

    by Richard Eisenberg, who served as special counsel to the General Counsel of the Army and the Air Force during the Obama administration, and Alex Wagner, who served as chief of staff to the 22nd Secretary of the Army and is a fellow at the Truman National Security Project.

    Last Monday, a federal district judge blocked enforcement of critical parts of President Trump’s directives banning and purging transgender individuals from serving in the U.S. military. Judge Kollar-Kotelly’s decision in Jane Doe 1, et. al. v. Trump, a case brought in the District of Columbia, is one of at least three pending cases involving challenges to Trump’s order, and highlighted the challenges the government will have in defending Trump’s policy decision and chosen method of implementation. (Another suit, Stone v. Trump, is scheduled for oral argument on November 9 in the District of Maryland.  And a third, Stockman v. Trump, is pending in the Central District of California.)

  • November 7, 2017
    Guest Post

    by Kate Sigafoos, Assistant Director of Lawyer Chapters, ACS 

    From October 19 to October 21, progressive lawyers, judges and legal advocates from around the country gathered in beautiful Milwaukee, Wis. for the first-ever ACS National Lawyer Chapter Convening. There were more than 120 people in attendance with representatives from 16 states and the District of Columbia, including 19 ACS Lawyer Chapters, and what a time we had together!

    The event started with a gathering at the grand Milwaukee City Hall Rotunda with welcome speeches from Milwaukee Mayor Tom Barrett and ACS President Caroline Fredrickson. The energy of the attendees’ enthusiasm was palpable as they networked and connected with ACS members from similar legal practice areas.

  • November 5, 2017
    Guest Post

    by Simon Lazarus

    *Simon Lazarus is a lawyer and writer who has frequently contributed to this blog on legal issues related to the health reform wars and other matters. 

    In endlessly excoriating President Barack Obama’s administration of the Affordable Care Act, ACA opponents featured a once obscure constitutional provision, the Article II clause that directs the President to “take care that the laws be faithfully executed.” Legally, the charge that Obama had breached his “take care” obligation was patently meritless, and Obama’s assailants never took their bombast seriously enough to substantiate it, let alone fit it into a claim to take to court. 

    Indeed, no court has ever invoked the Take Care Clause as a basis for constraining alleged executive overreach. There are obvious reasons for this. If there were an articulated standard for defining a violation of the clause, it could presumably be comparatively complicated to meet it. A jumping off analogy might be former Justice William Rehnquist’s dictum, in the 1985 case Heckler v. Chaney, suggesting that courts must defer to executive branch decisions not to initiate enforcement proceedings, unless an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” In that vein, to make out a violation of the president’s take care responsibility, one would likely have to demonstrate a pattern of actions that undermine a law, or laws, and – because of the clause’s focus on good faith (“faithful execution”) – actions that hamstring the law intentionally. While bad intentions can be, and often are, proven by objective, circumstantial evidence, executive officials bent on nullifying a law have presumably had sufficient savvy to cloak wrongful intent behind well-orchestrated procedures that would deter a judge from finding or a litigant from hanging her case on an allegation that they did in the law on purpose.

    Until now.