† There’s Many A Slip ‘Twixt The Cup And Lip: Federal courts will encounter "uncharted" legal territory in lawsuits challenging the new, landmark health care law, notes The National Law Journal, adding that “liberal lawmakers and scholars disagreed with their conservative counterparts, who disagreed among themselves, about whether the mandate would survive constitutional scrutiny”:

 

"It is definitely not frivolous," said professor Randy Barnett of Georgetown University Law Center, referring to the recent lawsuits. "Anyone who says it is - and I know a lot of law professors have - they're whistling past the graveyard. Anything that has never been done before has no precedent for it. And this (law) has never been done before."

 

Although the law itself is unprecedented, the legal reasoning supporting it is well-grounded, according to health care scholar Mark Hall of Wake Forest University School of Law and other supporters.

 

"I think it's sort of notable that 13 to 14 attorneys general have joined the one lawsuit," said Hall. "But this legislation was written very carefully with the notion it probably would be challenged."

 

Hall noted that the legislation has "pages" of congressional findings on the connection between the health care crisis and interstate commerce. Those findings are clearly aimed at a major attack on the individual insurance mandate - that it exceeds Congress' lawmaking power under the Commerce Clause.

 

But Barnett countered that the Supreme Court in U.S. v. Morrison, a 2000 decision striking down parts of the federal Violence against Women Act on Commerce Clause grounds, "shows findings are not dispositive." [Explanatory links added by The Stiletto.]

 

Puckishly pointing out that “[t]he same Supreme Court justices whom President Obama blasted during his State of the Union address this year may ultimately decide the fate of his crowning achievement,” The Washington Times calls the interpretation of the Commerce Clause embedded in the health care bill “radical,” because “[i]t is not a power to regulate commercial activity, but to compel it”:

 

All previous Commerce Clause cases have dealt with regulating pre-existing activity, but if someone is not buying health insurance, there is no commerce to regulate. The clause has never been used to compel private citizens not engaged in commerce to spend money on a government-mandated program. This is a new, extreme and potentially dangerous interpretation. …

 

The states fighting Obamacare in court are concerned with more than just health care. At stake are two fundamental views of the nature of the Constitution. In one, government power is limited. It enables and supports human liberty, serves as a referee to keep the game fair and punishes criminals who break the law. In the other view, government is a coercive mechanism that aims at perfecting a social vision in which personal freedom takes a back seat to the utopian plan where the ends justify the means.

 

The Boston Globe predicts that [e]ven before the broader constitutional conflicts are decided, the matter could get bogged down in tactical court battles for years:

 

There are many routes that legal challenges are likely to take, potentially stalling or preventing implementation of the law. Opponents of the legislation are hoping that a federal district judge can be persuaded to impose an injunction against the legislation until the matter is heard in court. The injunction would then be appealed, and the case and others like it would wind through various federal courts before reaching the Supreme Court.

 

Or not:

 

Proponents of the federal health bill note that the matter most likely to face a legal challenge - the mandate to buy insurance - will not go into effect until 2014. As a result, Obama administration lawyers are likely to argue that federal courts cannot block something that has not yet gone into effect.

 

This is what they mean by “uncharted legal territory” Nonetheless, the roadmap to repeal is not likely to take the legislative route:

 

Recognizing that “[e]ven if Republicans take over Congress in November, they'll probably lack the numbers required to repeal Obamacare over the veto of its namesake,” Daren Bakst, director of legal and regulatory studies at the John Locke Foundation, makes the case that “the only way to fight this massive expansion of federal government is through the courts” in a Washington Times op-ed:

 

There should be some cautious optimism that the court would strike down the individual mandate. On pure legal grounds, there's reason to think that at least five justices won't want to take the Commerce Clause to unprecedented levels.

 

The bigger concern, though, may have nothing to do with the law. The federal courts may be so deferential to Congress that they won't want to strike down this excessive abuse of legislative power. Even worse, the Supreme Court may simply want to avoid any political headache by striking down this extremely controversial bill.

 

But there is something even larger at stake than the significant Constitutional issues raised by this ill-begotten legislation: the electorate’s perception of the legitimacy of government. Bakst writes that “will have a chance to restore the people's faith in our system of government or weaken it even further.”

 

† Is This Any Way To Run A Transition?: A second nominee to head the Transportation Security Administration crashed and burned just two weeks after the Obama administration’s crackerjack vetters asked the Senate to consider him for confirmation. This means the agency that oversees airline security will remain rudderless “for months to come,” reports The New York Times:

 

The agency is facing a range of policy questions about potential changes, including the deployment of full-body scanners at security checkpoints and whether to allow its work force to unionize. Paul Rosenzweig, a former policy adviser to the Homeland Security Department in the Bush administration, said the lack of stable leadership at the top would make it harder to achieve goals.

 

“The lack of a confirmed leader disables the ability of any administration to effect the type of change that it wants to,” Mr. Rosenzweig said. “Change comes slow to the federal government. It’s a bureaucracy, and it’s impossible to achieve change without concerted leadership.”

 

Questions arose over government contracts awarded to the private consulting firm that Maj. Gen. Robert A. Harding launched after he retired as an Army intelligence officer, explains The Times:

 

Harding Security Associates, provided intelligence debriefers in Iraq, but after the government ended a $49.2 million contract early in 2004, an audit found that the company had received an overpayment and collected more money for termination costs than it should have.

 

The audit questioned $2.4 million of the $6 million paid to the firm, said Senator Susan Collins of Maine, the senior Republican on the homeland security committee. In the end, General Harding told the committee Thursday, his company was forced to refund $1.8 million in a negotiated settlement in 2008.

 

The Washington Post also reports that Harding took advantage of a “set-aside” program for businesses owned by service-disabled veterans to win a $100 million contract in 2008 to perform administrative support and technical consulting about biometrics work at Fort Belvoir:

 

The disability he has cited was sleep apnea, a sometimes chronic breathing disorder that disrupts sleep. …

 

The White House declined to comment about the $100 million contract, awarded in July 2008, or about Harding's disability, including its cause, diagnosis or impact on his work. …

 

The records show that Harding's company was considered a small "Veteran-owned," "Black owned," "Service Disabled Vet" owned firm that qualified for special contracting set-asides. The contract said the Army received only one bid on the deal.

 

The program to set aside federal contracts for service disabled veterans has come under fire recently s for poor oversight and abuses. Harding's company was not mentioned in the reviews.

 

Blaming “obstructionist” Senate Republicans - rather than the incomplete or incompetent vetting process his administration has put in place - Obama made 15 recess appointments to fill open positions in the Treasury, Commerce and Homeland Security departments, the office of the U.S. Trade Representative, as well as seats on the Equal Employment Opportunity Commission, the Farm Credit Administration Board and the NLRB, reports The Washington Post:

 

The White House said the 15 appointees have waited an average of 214 days for a Senate confirmation vote. In all, the White House said, Obama has 217 nominees pending before the Senate, including 77 who are only awaiting a final floor vote.

 

By comparison, the White House said, President George W. Bush had five nominees waiting for final Senate approval at this point in his presidency. Bush had used recess appointments to fill 15 posts by this time in 2002, the White House said.

 

Recess appointees serve through the end of the current Congress unless they receive Senate confirmation in the meantime. Obama said that all 15 appointees would remain in the Senate for confirmation.

Republicans slammed one of the recess appointments – Craig Becker, Associate General Counsel to the SEIU and to the AFL-CIO, to head the National Labor Relations Board – on the grounds that his nomination faced bipartisan opposition. On CNN's "State of the Union," Senate Republican Conference Chairman Lamar Alexander (R-TN) said that by circumventing the Senate’s role in providing checks and balances on the executive branch, Obama will "cause the election of a lot more Republican Scott Browns in November who are determined to come in and provide some checks and balances in Washington to stop the overreaching of the government."

 

On “Fox & Friends” this morning, political analyst Larry Sabato noted that Obama is “the third divisive president in a row” we’ve had – after Bill Clinton and George Bush – and that when presidents are polarizing, voters use mid-term elections to put checks on the party in power.
 

† Proposed Amendment To CO Constitution Extends Rights To Fertilized Human Eggs: The Associated Press reports that Personhood USA submitted enough valid signatures to put a proposal on state ballots this fall to give unborn babies human rights in the state constitution. CO voters rejected a similar proposal in 2008.

 

† A To Z Approach On Illegal Immigration In AZ: The AZ state legislature is poised to pass the toughest bill in the nation to deter illegal immigration by defining illegal entry across its border with Mexico as trespassing, which “essentially criminalize[s] the presence of the 460,000 illegal immigrants living in the state, reports ABC News:

 

The measure allows police to detain people on the suspicion that they are illegal immigrants, outlaws citizens from employing day laborers, and makes it illegal for anyone to transport an illegal immigrant, even a family member, anywhere in the state.

 

The bill's supporters say a local crackdown has become a necessity because the federal government has failed to adequately seal the borders or actively enforce its laws. They blame Arizona's spiraling crime and unemployment rates on its large population of illegal immigrants.

 

"When you come to America you must have a permission slip, period," said state Sen. Russell Pearce, the Mesa Republican who sponsored the bill. "You can't break into my country, just like you can't break into my house." …

 

Pearce said he "was not advocating roundups." By creating a law that "eliminates all sanctuary policies," illegal immigrants - unable to work, travel or even be present in the state - would ultimately "leave on their own."

 

The senator argues the state law puts teeth in federal laws already on the books, by turning misdemeanors, like employing day laborers, into felonies.

 

Similar bills were vetoed three times by former Democratic Gov. Janet Napolitano, but current Gov. Jan Brewer has signaled she will sign the bill once it reaches her desk.

 

Against this backdrop, Maricopa County Sheriff Joe Arpaio's latest two-day crime sweep of the Valley focusing on human and drug smugglers netted more than 900 pounds of marijuana and 94 arrests – 64 of which were suspected of being in the country illegally and the rest, suspected of drug and human trafficking crimes, reports The Arizona Republic:

 

Four hundred personnel have been involved in the operation, including helicopters to search for people who have fled the scene.

 

This is the sheriff's 14th operation, and he said a 15th will be coming soon.

 

Arpaio did not give details on the time or place of the next crime sweep, but he said it would be in Phoenix.

 

Meanwhile, U.S. Immigration and Customs Enforcement officials have “stepped back from an Obama administration commitment to focus enforcement efforts primarily on illegal immigrants who are dangerous or have violent criminal backgrounds” and are refocusing their efforts on finding and deporting illegals, reports The Washington Post:

 

In a Feb. 22 memo, James M. Chaparro, head of ICE detention and removal operations, wrote that, despite record deportations of criminals, the overall number of removals was down. While ICE was on pace to achieve "the Agency goal of 150,000 criminal alien removals" for the year ending Sept. 30, total deportations were set to barely top 310,000, "well under the Agency's goal of 400,000," and nearly 20 percent behind last year's total of 387,000, he wrote.

 

Beyond stating ICE enforcement goals in unusually explicit terms, Chaparro laid out how the agency would pump up the numbers: by increasing detention space to hold more illegal immigrants while they await deportation proceedings; by sweeping prisons and jails to find more candidates for deportation and offering early release to those willing to go quickly; and, most controversially, with a "surge" in efforts to catch illegal immigrants whose only violation was lying on immigration or visa applications or reentering the United States after being deported. …

 

An immigration official said deportations are falling mainly because the focus on criminals has added a complication: It takes an average of 45 days to deport criminals, compared with 11 days for non-criminals, creating a shortage of detention beds. The number of beds was also limited because costs were higher than Congress expected, the official said.

 

Of course, if every state adopted a law like AZ’s there would be no bifurcation of ICE’s core mission.

 

Editorial Note: WaPo columnist George Will also offers this suggestion to “bring the interpretation of the 14th Amendment into conformity with what the authors of its text intended, and with common sense, thereby removing an incentive for illegal immigration”:

 

To end the practice of "birthright citizenship," all that is required is to correct the misinterpretation of that amendment's first sentence: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." …

 

The Civil Rights Act of 1866 begins with language from which the 14th Amendment's citizenship clause is derived: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." (Emphasis added.) …

 

Appropriately, in 1884 the Supreme Court held that children born to Indian parents were not born "subject to" U.S. jurisdiction because, among other reasons, the person so born could not change his status by his "own will without the action or assent of the United States." And "no one can become a citizen of a nation without its consent."

 

† All The News That’s Fart To Print: After University of Missouri biomedical engineering student Jimmy Winkelmann founded parody clothing line The South Butt (the company's motto: Never Stop Relaxing), he was slapped with a trademark infringement suit by The North Face, a CA-based outdoor products company. Winkelmann’s father is now accusing North Face's lawyers at Bryan Cave of a conflict of interest because the firm had previously represented him on a number of legal matters, reports The American Lawyer:

 

In late January a federal judge ordered mediation in the case, and set a deadline of late March. That led lawyers … to schedule a deposition with Winkelmann's father, James Winkelmann Sr. …

 

In his testimony, Winkelmann became enraged over questions about his past business practices asked by Bryan Cave commercial litigation and IP partner David Roodman. Winkelmann became so furious, the Riverfront Times [St. Louis] reports, that just 18 minutes in, the proceeding was halted. … 

 

Winkelmann [said] Bryan Cave had … Winkelmann, his family and at least six other Winkelmann businesses on at least 15 different matters over the last eight years. When Roodman questioned the accuracy of the those [sic] statements, Winkelmann lost control.

 

"I'm telling you that this is the truth and now you're sitting here today trying to get information from me to prosecute my son," said Winkelmann, later adding that he had paid Bryan Cave roughly $500,000 for the work. …

 

Winkelmann, who was being deposed without the advice of his own counsel, then called a lawyer to the proceedings, St. Louis solo practitioner Robert Horan. When Horan arrived, he promptly shut down the deposition, stating that his client needed to obtain another opinion on whether he could proceed.

 

A conflicts check did not flag Winkelmann as a Bryan Cave client, according to Roodman.

 

† The Littlest Locavores: More evidence that the Brits treat education as a matter of life and death. When Evesham, Worcs, schoolchildren between the ages of 10 to 13 years old were led into the playground for what they thought was a fire drill, they saw popular science teacher Richard Kent shot dead by an intruder and other staff rushing over to provide medical aid. At an assembly 10 minutes later, the terrified tweens were told by Blackminster Middle School officials that it was all a put-on, The Telegraph (London) reports:

 

But some of the children were left in shock with some being sick and one girl suffering a panic attack, parents claim.

 

The school was forced to apologise to parents, admitting that the stunt on Tuesday afternoon had gone “too far” and that pupils should have had their fears allayed sooner. …

 

The school said it had learned lessons from the incident and apologised to pupils left upset. It said the role-playing exercise had been intended to teach Year 8 pupils how to investigate, collect facts and analyse evidence.

 

Head teacher Terry Holland said: "The role play was part of a science lesson where a selection of students and teachers acted out this scenario.

 

"The problem with a small minority of the pupils was that there was a slight delay in getting them back into the hall to explain what had just happened.

 

"Most of them already knew it was a spoof but a couple of them were upset and we have since spoken to them and their parents and apologised to them. …

 

"I wish to apologise for any upset the role play may have caused. It was an original idea but one that went too far.”

 

All in all it’s just another brick in the wall.

 

† Homeless Shelters Pricier Than Permanent Housing: NYC Comptroller John Liu has chastised the Bloomberg administration for lax oversight over nonprofit agencies that provide services to the homeless, pointing to more than $152 million in “handshake deals” the Department of Homeless Services forked over in 2008 to providers that did not have contracts, reports The New York Times:

 

The report said that the city department relied too much on social service agencies, in what was tantamount to an honor system, to disclose how many days the units they provided for the homeless were actually occupied. As a result, there was no accurate way, the audit said, to determine if the agencies were entitled to the money they received.

 

Indeed, the audit found several instances of double billing, and more than $953,000 in questionable payments. …

 

The audit’s findings echo past audits and reports of shoddy management practices by the Department of Homeless Services, and undermine Mayor Michael R. Bloomberg’s promise after one such report in 2003 to do a better job of entering into contracts. …

 

Beyond the findings related to the debate over noncontracts, the audit said that the city did not get people out of temporary housing fast enough. On average, homeless families spend about nine months in transitional housing.

 

In 2008, more than 90 percent of service providers did not meet their goals for moving people into permanent homes, the audit said. Sixty-two percent of those who were living in one temporary center in the Bronx stayed for more than nine months, at a cost of $4.3 million. One person stayed for six and a half years.

Meanwhile, young, single NYers are breaking the law to keep a roof over their heads that they can afford (second item), given the city’s notoriously overpriced rental stock.

 

† Updates To Previous Posts (fifth item, Navy SEALs E-Petition): The Washington Times reports that “[c]racks are beginning to appear in the military's prosecution of three Navy SEALs accused of striking a most-wanted terrorism suspect they had captured in Iraq”:

 

Maj. Gen. Charles Cleveland [who filed official charges against the SEALs in October] … signed grants of immunity for five Navy colleagues of the accused.

 

Some of those five, three enlisted men and two officers, are expected at trial to flatly contradict the prosecution's key witness, according to a Navy source close to the case, which centers on the September 2009 capture of Ahmed Hashim Abed. …

 

A judge has ruled that the military must produce Abed as a witness for courts-martial, scheduled to be conducted in Baghdad perhaps as early as next month. Defense attorneys, in front of a military jury, can expose Abed's history as the suspected mastermind of the 2004 Fallujah atrocity that left the bodies of U.S. contractors hanging mutilated on a bridge. …

 

"We're pleased about the immunity grants," said Neal Puckett, Petty Officer McCabe's attorney. "They allow witnesses who have favorable testimony to testify." …

 

A Facebook page, "Support the Navy SEALs who Captured Ahmed Hashim Abed," has attracted nearly 120,000 members. Another Facebook page, "Americans United Against the Prosecution of 3 Navy SEALs," has nearly 265,000 members.

 

† Updates To Previous Posts (third item, Not Your Father's (Or Your) Sex Education): On the heels of a recent study showing that sex education classes encouraging black sixth- and seventh-graders to remain abstinent “until they are ready” persuaded them to remain virgins for at least two years, Sen. Orrin Hatch (R-UT) quietly slipped in funding for state-level abstinence programs in the new healthcare law, reports The Washington Post:

 

The funding provides at least a partial reprieve for the approach, which faced losing all federal support under President Obama's first two budgets.

 

"We're very happy to see that funding will continue so the important sexual health message of risk avoidance will reach American teens," said Valerie Huber, executive director of the National Abstinence Education Association, a Washington-based lobbying group. "What better place to see such an important health issue addressed than in the health legislation?" …

 

During President George W. Bush's administration, abstinence programs received more than $100 million a year directly in federal funding and about $50 million each year in federal money funneled through the states.

 

During the health legislation debate in the Senate Finance Committee [Hatch] added $50 million in annual funding for five years to states for abstinence programs - a provision that survived the tumultuous process that ensued. …

 

The legislation also includes $75 million a year over five years for a new "personal responsibility education" program, which would fund programs that teach youths about abstinence and contraception.