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Thursday, April 17, 2014

Individual Mandate: 2 Lawyers Debate Constitutionality: Introduction

Individual Mandate: 2 Lawyers Debate Constitutionality: Introduction.

First of three articles I have the privilege to write for Medscape to cover the healthcare lawsuit argued topics. Note, you may have to do a free sign up to access the articles.

Posted at May 2nd, 2012 by Woodring Law
 
Nice Background on Florida Solicitor General Scott Makar

A Certain Appeal || Gulf Coast Business Review | Tampa Bay, Bradenton, Sarasota, Fort Myers, Naples.

Interesting read on the background of a friend, Solicitor General Scott Makar.  I believe at this point he is the longest serving Florida Solicitor General.

Posted at September 6th, 2011 by Woodring Law
 
Breaking: Eleventh Circuit Rules Obamacare’s Individual Mandate is Unconstitutional – Forbes

Breaking: Eleventh Circuit Rules Obamacare’s Individual Mandate is Unconstitutional – Forbes.

This is a 300 pg. opinion, so more comments to follow.  11th Circuit decision on Constitutionality of Healthcare

Nice Quotes:

In sum, the individual mandate is breathtaking in its expansive scope. It
regulates those who have not entered the health care market at all. It regulates
those who have entered the health care market, but have not entered the insurance
market (and have no intention of doing so). It is overinclusive in when it regulates:
it conflates those who presently consume health care with those who will not
consume health care for many years into the future. The government’s position
amounts to an argument that the mere fact of an individual’s existence
substantially affects interstate commerce, and therefore Congress may regulate
them at every point of their life. This theory affords no limiting principles in
which to confine Congress’s enumerated power.

Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today:there are none.

The federal government’s assertion of power, under the Commerce Clause,
to issue an economic mandate for Americans to purchase insurance from a private
company for the entire duration of their lives is unprecedented, lacks cognizable
limits, and imperils our federalist structure.

After finding that the individual mandate is severable, because it is likely that Congress would have enacted the  the other provisions even without the mandate, the weakest part of the decision by far, the court does note that this seems to even be inconsistent with the Government position taken in the litigation:

We acknowledge that the government, in arguing for the individual mandate’s
constitutionality, stated summarily that the individual mandate cannot be severed from the Act’s
guaranteed issue and community rating provisions because the individual mandate “is integral to
those sections that . . . provide that insurers must extend coverage and set premiums without
regard to pre-existing medical conditions.” Government’s Reply Br. at 58. But as explained
above, whether a statutory provision is “integral” or “essential” to other provisions for
Commerce Clause analytical purposes is a question distinct from severability. And in any event,
the touchstone of severability analysis is legislative intent, not arguments made during litigation.

Posted at August 12th, 2011 by Woodring Law

 
Charles Trippe’s litigation experience serves him well as Gov. Rick Scott’s top attorney – St. Petersburg Times

Interesting piece on the Governor’s General Counsel for those interested in learning more about who is now advising Governor Scott on Judicial Selection.

Charles Trippe’s litigation experience serves him well as Gov. Rick Scott’s top attorney – St. Petersburg Times.

Posted at July 25th, 2011 by Woodring Law
 
Healthcare Lawsuit- Judge strikes entire act based on individual mandate- but finds no merit to the Medicaid claim

Breaking news, decision just came down.  Analysis to follow. vinson-ruling

Excerpt from the opinion:

For the reasons stated, I must reluctantly conclude that Congress exceeded
the bounds of its authority in passing the Act with the individual mandate. That is
not to say, of course, that Congress is without power to address the problems and
inequities in our health care system. The health care market is more than one sixth
of the national economy, and without doubt Congress has the power to reform and
regulate this market. That has not been disputed in this case. The principal dispute
has been about how Congress chose to exercise that power here.30
Because the individual mandate is unconstitutional and not severable, the
entire Act must be declared void. This has been a difficult decision to reach, and I
am aware that it will have indeterminable implications. At a time when there is
virtually unanimous agreement that health care reform is needed in this country, it
is hard to invalidate and strike down a statute titled “The Patient Protection and
Affordable Care Act.”

Posted at January 31st, 2011 by Woodring Law
 
Where judicial activism morphs into disregard

Where judicial activism morphs into disregard.

Interesting article. The Ninth Circuit is maintaining its role as the most reversed circuit. Some excerpts below:

Four times this month the U.S. Supreme Court has slapped down the Ninth Circuit Court of Appeals. Four times the Big Bench unanimously reversed Ninth U.S. Circuit Court of Appeals decisions. Unanimous is a big deal. It means that there’s no left-right political divide in the Big Bench’s findings – just right on the law and wrong on the law.


Followers of the Ninth Circuit are painfully aware of its reputation as an activist court that flouts laws it doesn’t like and bulldozes rulings that defy its left-leaning politics. The San Francisco-based judicial district serves as a textbook example of how judges should not behave.

Posted at January 30th, 2011 by Woodring Law
 
Court Allows Emanuel on Ballot for Chicago Mayor – NYTimes.com

Court Allows Emanuel on Ballot for Chicago Mayor – NYTimes.com.

This is an interesting decision, written by a court that appeared intent on chastising the lower appellate tribunal.  If the supreme court analysis of Illinois law was correct, this is a classic case of judicial activism.  Opinion here: Rahm

Some excerpts from the decision below:

Before proceeding to the merits, we wish to emphasize that, until just a few days ago, the governing law on this question had been settled in this State for going on 150 years. In Smith v. People ex rel.Frisbie, 44 Ill. 16 (1867), this court was faced with a question remarkably similar to that which is before us today.

Thus, from April 1867 through January 24 of this year, the principles governing the question before us were settled. Things changed, however, when the appellate court below issued its decision and announced that it was no longer bound by any of the law cited above, including this court’s decision in Smith, but was instead free to craft its own original standard for determining a candidate’s residency.  See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing authority in its entirety). Thus, our review of the appellate court’s decision in this case begins not where it should, with an assessment of whether the court accurately applied established Illinois law to the particular facts, but with an assessment of whether the appellate court was justified in tossing out 150 years of settled residency law in favor of its own preferred standard. We emphatically hold that it was not.

But, the concurring justices did not seem to think that the case was that clear cut, partly because of the supreme court allowing prior conflicting precedent:

Suffice it to say, therefore, that this court has not always spoken
clearly on what is meant by residency, and the majority should
acknowledge this fact. This is why both sides in this dispute can
contend that their respective positions are supported by decades of
precedent. Indeed, contrary to the majority’s assertions, the only thing
that is well established in this case is the confusion that has existed on
this subject. The majority today now makes clear that residency for all
purposes is the equivalent of domicile. The majority, therefore, should
overrule those portions of Pope, Park, and Clark which hold to the
contrary.


It is for this reason that the tone taken by the majority today is
unfortunate. Because our own case law was, until today, unclear, it is
unfair of the majority to state that the appellate court majority
“toss[ed] out 150 years of settled residency law” (slip op. at 10),
adopted a “previously unheard-of test for residency” (slip op. 17), or
was engaged in a “mysterious” analysis (slip op. at 16). In order to
properly address the parties’ arguments, the appellate court had to
reconcile this court’s conflicting pronouncements on the question of
residency. That court did the best it could without the benefit of a
supreme court opinion which clarified the standards. By refusing to
acknowledge the role our own case law has played in creating the
dispute before us, the majority unwittingly adds credence to the
inflammatory statements contained in the dissenting opinion below.

Posted at January 27th, 2011 by Woodring Law
 
Florida Health Care Lawsuit Update

Well, as I write this, the arguments are underway in federal court in Pensacola on the cross motions for summary judgment in the case challenging the constitutionality of Obamacare.  For those of you following this case closely, attached are the parties motions and responses that are being argued today:   Plaintiffs MSJ-Memo; Plaintiffs MSJREPLY ; Plaintiffs Resp MSJ-Memo ; US MSJ-Memo; US Resp MSJREPLY ; US Resp MSJ-Memo

I believe the individual mandate is again likely to be held unconstitutional, but that that is likely to be the only count so decided.

Posted at December 16th, 2010 by Woodring Law
 
Foreclosure Defenses- A Conservative Perspective

The Wall Street Journal has an article today about the attorneys who have done some of the litigation and discovery that has uncovered alleged “robo-signers.  Clearly, there is no excuse if employees of the banks have made false representations in documents, but this issue begs the question of the impact any misrepresentations should have on the foreclosures, and of the broader defense claims  to foreclosures.  Article below:

Paperwork Trail: The Lawyers Who Fight Foreclosures – WSJ.com.

On the broader question of foreclosure defenses, it appears that foreclosures should be  a fairly  simple process, and in fact half of the states in this country do not require a legal case to be filed to effect a foreclosure.

The foreclosure question is what are the terms of the mortgage, and are you in default under the terms of the mortgage.  If you have not made payments for 6 months, you are going to be in default.

Once it is determined you are in default, the only remaining material questions are determining the amount owed on the note with any contractual penalties and interest, needed to establish any deficiency judgment amount, or rarely, if there is equity in the house after the amount of the note is satisfied.

So, other than a defense to foreclosure that payments have been timely made, and note is not in default, or possibly a defense to the total amount of the debt due and owing, which potentially would be an issue in many states in a separate action for a deficiency judgment, what other defenses should remain?

Does it even matter who owns the mortgage note? Clearly, it matters to the owners of the note, but this should be basically legally irrelevant from a home owner’ perspective – 6 months in default, it is clear that someone else other than the homeowner has a better title at that point.

There are no economic free rides, so someone is paying the cost in a case such as the Jacksonville case, where the homeowners have been living in a home they have not paid a mortgage on for five years. Everyone still making mortgage payments should be outraged.

Misrepresentations under oath must always be punished, but it appears that the alleged misrepresentations have no bearing on the underlying homeowner obligations, and should therefore not be a basis to defend being in default on a mortgage.

Posted at October 21st, 2010 by Woodring Law
 
Key count in health care lawsuit survives motion to dismiss

Today Judge Vinson issued his order on President Obama’s motion to dismiss in the health care lawsuit that Florida and other states have filed in the northern district. The key count, the unconstitutionality of the individual mandate requiring purchase of health care or a penalty survived, as did a coercion count in regard to the state participation in the federal health scheme. Several other counts were dismissed, because of existing Supreme Court precedent that cannot be changed but by the Supreme Court, but the individual mandate count surviving is key. Health Care Order on Motion to Dismiss

Posted at October 14th, 2010 by Woodring Law
 
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