Lawyer Predicts Virginia's Health Care Reform Challenge Will Fail

Philip Bunnell - Talk Radio News Service

Despite a Federal Judge’s decision Monday to allow a lawsuit filed by Virginia Attorney General Ken Cuccinelli challenging the national health care reform law to proceed, Walter Dellinger, Chair of the Appellate Practice at the firm O’Melveny & Meyers in Washington, D.C. and an acting Solicitor General in the Clinton administration, predicts the effort to block the legislation will fail.

“It is fairly routine that thousands of cases go forward every week in the courts of this country that survive a motion to dismiss on the face of the pleadings where ultimately the plaintiffs lose, and I think that will be the case here,” Dellinger said during a conference call hosted by the Center for American Progress.

Dellinger also noted that filing a lawsuit that challenges decisions made by elected representatives is “a very dramatic expansion of judicial authority” and that such a notion would likely bother conservative judges.

“This is the kind of challenge that was brought against the Social Security law by the people who lost in the legislative process,” added Dellinger.  “This kind of litigation was brought against the Civil Rights Act, the Voting Rights Act.  These challenges have always failed because in the end, courts realize that these important decisions are to be made by the elected representatives of the people.”

Health Insurance Mandates Unconstitutional, Says Republican Poe

By Justine Rellosa
Talk Radio News Service

Rep. Ted Poe (R-Texas) fully supports Texas Attorney General Greg Abbott’s decision to legally challenge recently passed healthcare reform.

“The federal government has overreached its authority and Texans, like the majority of Americans, have had enough. Attorney General Abbott has my full support and I will continue to fight to uphold the Constitution for the people of the great state of Texas,” said Poe in a statement released on Thursday.

Earlier this week, Poe introduced HR. 4904, a bill that would prohibit Congress from using federal funding to fund mandates requiring Americans to purchase health insurance or pay a fine. In December 2009, Poe filed a similiar piece of legislation challenging the constitutionality of any bill requiring citizens to purchase goods or services as a condition of citizenship.

“Nowhere in our Constitution does it give the federal government the authority to force us to buy anything,” said Poe.

Poe said he wants his constituents to know that he will fight to repeal the new law vigorously, and will ensure that Congress follows the laws of the country.

Democrat Lee To Texas Attorney General: Shame On You!

By Chingyu Wang
Talk Radio News Service

Rep. Sheila Jackson Lee (D-Texas) accused attorneys general who have filed suit against the "Patient Protection and Affordable Act" of treating sick Americans as second class citizens.

"The lawsuits remind me of the approach that was taken as the Civil Rights Movement was able to exercise its authority," said Lee. "State rights activists wanted to use the Commerce Clause then. African American were second class citizens. Now, sick Americans seem to be second class citizens. So I would say to them, shame on them...to use these kinds of tactics to marginalize and permanently declare there is a second class status for Americans who happen to sick," scolded Lee.

Lee took a swipe at Texas Attorney General (AG) Greg Abbott, one of 13 AG's across the U.S. that claim the new law is unconstitutional, accusing him of "seeking to circumvent Federal law because he is of the opposite political party."

The AG's are challenging that a provision within the law that requires individuals and businesses to purchase health insurance or else pay a fine violates the nation's 10th Amendment.

Lee, however, said "the Federal government has the authority to legislate a health insurance mandate under the Commerce Clause of the United States Constitution...Congress can avoid legal challenges related to the 10th Amendment and states' rights by pre-empting state insurance laws and implementing the mandate on a federal level."

"Why, when you have a bill that will provide 100% Medicaid reimbursement the first year, 95% the second year and 90% the third year, are you suggesting that your states will lose billions or millions of dollars?" Lee asked. "Why do you rebut and refute the opportunity for relief."

Supreme Court: Either Way New Haven Will Be Sued

by Christina Lovato, University of New Mexico-Talk Radio News Service

In 2003, the New Haven, Connecticut, Fire Department administered written and oral exams to determine which employees would be eligible for promotions to lieutenant and captain; there were seven captain and eight lieutenant vacancies, but despite those who passed, no one moved up.

Of the 41 applicants who took the captain exam, the top nine scorers included seven whites and two Hispanics, and of the 77 applicants who took the lieutenant exam, the top 10 scorers where white.

After the Civil Service Board discovered from the scores that no black employees and only two Hispanics passed the test, they determined that the results had produced a significant disparate impact and chose to not certify the results.

The only information provided to the firefighters and public were the scores, given by race and gender. Test-takers did not receive their individual scores.

Seventeen white candidates and one Hispanic candidate who had taken the exams filed a lawsuit in federal court against the City of New Haven, the mayor, and other city executives.

Frank Ricci, a firefighter who took the exam stated that the questions on the test were drawn from “nationally recognized” books and believes the test was fair, and therefore the city should honor the results.

Part of Ricci’s case is that before throwing out the results the city should at least have to consider whether the exam was fair.

In the Supreme Court today the justices expressed concern over the bind that New Haven is facing: because the city didn’t use the results, they were sued for reverse discrimination, but if the city had used the results, they could have faced a lawsuit for discrimination.

Justice Souter expressed this dilemma by saying “You’re damned if you do, damned if you don’t.”

The decision in the case of Ricci vs. DeStefano is expected in May.

Remedial Harassment by Lawsuit in the Supreme Court

Remedial Harassment by Lawsuit in the Supreme Court
What can high-level government officials do to avoid being distracted from their work by lawsuits? That seemed to be the question of the day at the U.S. Supreme Court, considering the case of Ashcroft v. Iqbal. Javaid Iqbal sued then-Attorney General Ashcroft, FBI Director Mueller, and several other government officials after he was arrested on credit card fraud charges shortly after 9/11. Iqbal claims that he was mistreated—held in a maximum-security prison for nearly six months, where he was subjected to invasive daily searches, beatings, extremes in temperature, sleep disruption, and prohibitions on his religious practices—all because he was an Arab Muslim. He alleges his classification as a "high interest" detainee was racial and religious profiling by the government, in violation of his rights.

The trial has not even begun, though, since the Department of Justice is claiming that pre-trial discovery, including possible depositions with officials, would burden them and prevent them from doing their jobs. They say that the lawsuit's initial filings, claiming Ashcroft and Mueller knew about and approved of the racial and religious profiling, are not specific enough, so the lawsuit should be dismissed. Of course Iqbal's lawyers argue that they do have enough information to support their allegations, but they need discovery to fully develop their case.

All members of the Supreme Court today seemed perplexed by the situation. Federal Rules of Civil Procedure allow a case to be dismissed if it is purely frivolous, but generally not until after discovery has taken place. Further, the Rules allow judges to discipline attorneys who file frivolous lawsuits, but only after the lawsuits have been disposed of.

Justice Breyer, seeking to simplify the situation, asked how an important but non-government person would be able to escape the burden of lawsuits. He asked, as an example, how the president of the Coca-Cola Company would deal with a lawsuit claiming he personally put mice in Coke bottles: the claim is clearly preposterous, but neither attorney could give a clear federal rule that would allow dismissal of the case at such an early stage.

The Department of Justice argued that the resolution should come in a more stringent requirement on the initial filings of the case—when a suit is filed against an important government official, the filings should be held to a higher standard and need to be more specific. The DoJ said that this standard could be held to be a corollary of the "qualified immunity" rule that allows government officials to normally escape being held personally liable for actions taken while in office.

The Justices are unlikely to accept that suggestion, however. Firstly, there are procedures set out for changing the rules on court filings, so the Supreme Court cannot simply impose new standards. Secondly, such a standard would go against the American tradition of allowing easy access to the court system. Thirdly, the proposed standard would still allow private officials, such as the Coca-Cola president, to be burdened.

The Supreme Court will likely release its decision in the spring.