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King v. Burwell: Interpreting the Affordable Care Act

Section 1311 of the Affordable Care Act (PDF) ("Obamacare") provides, in part, as follows:

Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’) for the State [. . . .]

Read literally and in isolation, this provision requires states to establish "exchanges." There is no escape clause provided in Section 1311. However, such a provision would violate the rule established in Printz v. United States, in which Justice Scalia, writing for the court, stated that "the forced participation of the States' executive in the actual administration of a federal program" violates the Constitution's federalism provisions.

More on the flip.

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Keeping the Government Out of the Redskins Controversy

ESPN Washington Football Team Reporter John Keim writes about the Redskins trademark dispute:

Stay out, government: I agree with this take from The Washington Post’s Sally Jenkins. If the Redskins are going to change their name, let it come from societal pressure and not from congressional action. She made it clear that she’s in favor of a name change, but also wrote: “You don’t really want government agencies to become the arbiter of acceptable words and images. You really don’t. The main reason you don’t is because, like it or not, what’s offensive is subjective.” Totally agree. This isn’t as much about them needing to take care of other issues as it is about that slippery slope. I'm not a fan of slippery slopes. [Emphasis supplied.]

This is in the best uninformed Tea Party tradition (though Kleim clearly is not a Tea Partier, he supports a name change) - a sort of "Keep The Government's Hands Off My Medicare." Did the government go out of its way to get involved in the controversy? Of course not. I'll explain on the flip.

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Class Action Suit Filed Against NFL Over Drug Prescribing Policy

A federal class action lawsuit has been filed in San Francisco against the NFL by former players. Shorter version: The NFL sacrificed player health for its own profit by excessively administering pain medications and not warning players of the dangers.

Rather than allowing players the opportunity to rest and heal, the NFL has illegally and unethically substituted pain medications for proper health care to keep the NFL’s tsunami of dollars flowing.

The Complaint is available here.

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Colo. Sup. Ct. Loosens Restrictions on Lawyers Helping Pot Businesses

The Colorado Supreme Court issued a new rule for lawyers today. Lawyers will be allowed to represent marijuana businesses, so long as the lawyers don't help clients break state law. Via the Denver Post:

The new rule gives lawyers the go-ahead to work with marijuana businesses — even though those businesses are breaking federal law — so long as the lawyers don't help businesses also break state law.

The new rule is here. Some background on why it was needed is here. [More...]

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Does Oklahoma Have Standing To Challenge ACA Tax Credits?

Chris Christie's decision to block health insurance exchanges in New Jersey brings forward the percolating question regarding an IRS ruling (PDF) that the ACA tax credits will be available on federally run exchanges.

Oklahoma is seeking to challenge the IRS ruling. While the challenge seems extremely weak to me on the merits, that's never stopped the Roberts 5 before.

However, the standing issue seems even more clear cut - what is Oklahoma's injury here? Howe would they have standing? Indeed, no one seems injured at all. A discussion of the standing issue on the flip.

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The Right Wing Litigants

Like bizarro Thurgood Marshall, the right wing has engaged in a litigation strategy to compel the placement of right wing zealots on university faculties. Case in point - the matter of Teresa Wagner and the University of Iowa Law School:

A federal jury believed the University of Iowa’s law school illegally denied a promotion to a conservative Republican because of her politics, former jurors told The Des Moines Register. However, jurors said they felt conflicted about holding a former dean personally responsible for the bias. They wanted to hold the school itself accountable, but federal law does not recognize political discrimination by institutions. “I will say that everyone in that jury room believed that she had been discriminated against,” said Davenport resident Carol Tracy, the jury forewoman. Meanwhile, attorneys for Teresa Wagner on Tuesday filed a motion for a new trial in the case that scholars agree could have national implications in what some argue is the liberally slanted world of academia.

It's an interesting argument, but anyone familiar with conservative views regarding employment discrimination claims, can't but feel a bit of schadenfreude about the fact that right wing jurisprudence is what blocks relief for Wagner here. It is not some amorphous rule that institutions can not be guilty of discrimination. That is just shoddy reporting. It is instead that "states rights" do not permit suits to be brought against public institutions deemed to be covered by "states rights."

Also ironic is that Supreme Court Justice Antonin Scalia, in Rutan, opined that discrimination in employment decisions by government on the basis of political viewpoint was permissible under the Constitition. More on this interesting subject later.

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Lance Armstrong Suit Against USADA Dismissed

The order from the federal district court in Texas (PDF). Discuss.

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DEA Sued by Wiretap Translators For Conducting Illegal Polygraphs

A group of 8 translators/interpreters in San Diego have sued the Drug Enforcement Administration for administering polygraphs in violation of federal law. The interpreters' employer, Metropolitan, aka Metlang has also been sued.

The DEA contracted with Metlang to provide linguists/translators for its criminal cases. The suing translators worked for Metlang on DEA's wiretaps and criminal cases. They were all fired after either refusing the test or after DEA reported their polygraphs results as “failed,”or "inconclusive" to Metlang.

Under the Employee Polygraph Protection Act, 29 USC §§2001, a private employer is prohibited from requesting, requiring or demanding a polygraph test from an employee.

The polygraphs lasted four or five hours, and one woman was questioned about bestiality: [More...]

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Puerto Rico DEA Agents File Discrimination Lawsuit

12 agents of the Drug Enforcement Administration have filed a lawsuit against the Department of Justice, AG Eric Holder and others for discrimination.

[Their lawyer says] agents hired in the U.S. who come to Puerto Rico receive a bonus for working in a so-called high-intensity drug trafficking area, which Puerto Rican agents already on the island don't get. She says they also get more dangerous assignments because they have local experience that the U.S. agents lack.

Reading through the Complaint, available on PACER: the lawsuit claims National Origin Discrimination in federal employment practices; Disparate Treatment; and Equal Protection violations. It alleges the Justice Department has violated the Federal Workforce Flexibility Act of 2004. The agents, who are from Puerto Rico, claim they are not receiving the same benefits as "non-local hires" and receive 25% less pay.

The agents also claim they are being used as "cannon fodder" for the DEA, forced out of administrative positions and back onto the dangerous streets. [More...]

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Can the Government Force You to Unlock Your Computer?

Via the Denver Post: An interesting case in federal court in Colorado: The feds seize a computer pursuant to a search warrant. But when they try to access the data, it's encrypted. Can the court force the computer owner who is now a criminal defendant, to unlock the data?

Ramona Fricosu and her ex-husband Scott Whatcott are indicted for bank fraud arising from an alleged mortgage scam in Colorado Springs. The feds say the incriminating evidence is on the seized computer.

The Government is asking the Court, under the authority of the All Writs Act, to force Ms. Fricosu to unlock the data. [More...]

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Will Stratfor Be Liable for the Security Breach?

Stratfor has sent out this updated message on the hacking of its subscriber data base, which included customer credit card information.

At least one person's data I saw on Pastebin had the full credit card number and 3 digit "CVV" code (I'm not linking to it.) If Stratfor didn't encrypt the card data and left the full credit card numbers and pins on its servers, I wonder whether it failed to be in full compliance with PCI Data Security Standards. See page 14: [More...]

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Lawyer Jailed for Advising Client to Assert 5th Amendment Right

Michigan attorney Scott Millard, 29, was held in contempt of court and jailed Dec. 1 for instructing his client to "take the 5th" and refuse to answer a judge's question at his arraignment and bond hearing. The judge had asked the client when was the last time he had taken drugs. Millard was released four hours later when a higher court granted a stay.

The transcript is here.

If Judge Post is found to be in violation of the law - which many attorneys and former judges who spoke with 24 Hour News 8 believe he is - he could face anything from censure to removal from the bench.


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NBAPA Disclaims, Files Antitrust Suit Against NBA

Question presented - Is a professional sports league a single entity under Section 1 of the Sherman Act?

For more on the single entity question, see American Needle v. NFL. See also this post.

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Justice Dep't Files Antitrust Suit To Block ATT/T-Mobile Merger

NYTimes DealBook:

The Justice Department filed a complaint on Wednesday to block AT&T’s proposed $39 billion acquisition of T-Mobile, a deal that would create the largest carrier in the country and reshape the industry.

The complaint, which was filed in the United States District Court for the District of Columbia, said that T-Mobile “places important competitive pressure on its three larger rivals, particularly in terms of pricing, a critically important aspect of competition.” The complaint also highlighted T-Mobile’s high speed network and its innovations in technology.

Here is the complaint. Here is Department of Justice Statement:

In order to ensure that competition remains and that everyone – including consumers, businesses and the government – continues to receive high quality, competitively priced mobile wireless products and services, the Department of Justice today filed an antitrust lawsuit in U.S. District Court in Washington, D.C. to block AT&T’s acquisition of T-Mobile.

The Department filed its lawsuit because we believe the combination of AT&T and T-Mobile would result in tens of millions of consumers all across the United States facing higher prices, fewer choices and lower quality products for their mobile wireless services.

More detailed analysis on the flip.

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DOJ/ US Trustee Seeks To File Appeal of CA Bankruptcy Court's DOMA Ruling

The United States Trustee for California has filed a Motion For Leave To Appeal the ruling by the US Bankruptcy Court for the Central District of California which declared DOMA unconstitutional. The filing, in the case In re Balas and Morales (11-bk-17831-TD Doc 53), states that:

Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.

A strange submission. the Justice Department believes that DOMA is unconstitutional, but is appealing a ruling that DOMA is unconstitutional. The filing indicates that the opportunity to brief this issue was provided to the Congress, which declined to participate, and there is no indication that Congress wants to participate in an appeal. So who exactly is seeking reversal here?

While it is true that Justice has a duty, to a point, to defend duly enacted laws, there are limits to this duty. And indeed, the United States Trustee in this case does not seem to have much inclination to provide a meritorious defense in this appeal. Not a decision I fully understand (indeed, it defies my prediction of no appeal in this case.)

Speaking for me only

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