The state of Nevada and possibly twenty other states plan a lawsuit challenging the constitutionality of the health care reform recently passed by Congress and signed into law by President Obama. Mark Hutchison, who has agreed to provide pro bono counsel to the Silver State in this effort, joined three other attorneys with links to the issues surrounding the lawsuit in a conference call for journalists and bloggers moderated by the Nevada News Bureau.
Fourteen states were involved in the suit when Governor Jim Gibbons decided to add Nevada. At least four others (Indiana, North Carolina, Mississippi and Arizona) have already agreed to join the suit and three additional states are "waiting in the wings," according to Hutchison. “The existing lawsuit challenges on constitutional grounds the legislation under the 10th amendment, under the prohibition of an unapportioned capitation or direct tax, as well as the individual mandate,” he said.
Hutchison agreed to act as lead counsel in the action after Nevada Attorney General Catherine Cortez-Masto declined to prosecute the case. Jacob Hafter, a Republican who is seeking his party's nomination for Democrat Cortez-Masto's position, stated, "we have a long haul," but added the suit is based upon "very good legal issues" and "we have the opportunity to challenge this on very valid constitutional grounds." He expressed doubt, however, about the "ripeness" of the case with respect to the individual mandate until the taxes or fines begin to be assessed, which is not scheduled to occur until 2014. Ripeness is the concept that, in order for a case to be heard, there must be some actual, not theoretical or anticipated, harm done.
Hafter accused Cortez-Masto of being "derelict in her duties" in refusing to pursue the case after being directed to do so by Gibbons, the Republican Governor. By refusing, according to Hafter, she may have committed a misdemeanor.
The only avenues for pursuing action against the Attorney General, however, may be through impeachment via the legislature or prosecution by the attorney general's office. Since the legislature is controlled by her party and she would appoint the prosecutor in her case, neither seems likely.
Hafter declared, "There is absolutely a gap in the law governing the attorney general and, as we see in this case, there is an ability for the attorney general to commit malfeasance and have no consequences" other than to be voted out of office when up for reelection.
Joel Hansen, Independent American Party candidate for Attorney General, expressed skepticism that Hutchison has the legal authority to press the case on behalf of the state. “I think that it’s a violation of law for the governor to ask a private attorney to file this suit. NRS [Nevada Revised Statutes]...specifically says that you can’t do that without an act of the legislature.”
He believes the Governor should call a special session of the legislature both to vest in him the authority to appoint outside counsel to represent the state in this suit and to address impeachment proceedings against Cortez-Masto.
Hutchison claimed that his interpretation of the NRS differed from Hansen's. He argued that, since the law originated at the federal level and the case was being handled by "a pro bono lawyer, not charging the state, who is going to be representing the state outside the state," that NRS was not violated.
Josh Hicks, former General Counsel for Governor Gibbons, raised the question of whether Cortez-Masto's refusal to pursue the case effectively disqualified her, in which case the Governor would be free to assign another attorney to the lawsuit. "It's really uncharted legal territory," Hicks stated.
The Attorney General may take action to stop Nevada from participating in the lawsuit. For now, though, Hutchison plans to move ahead. "We will join as a party in an amended complaint," he said.
See also NNB Editor Elizabeth Crum's report on this call.
Wednesday, April 07, 2010
Monday, April 05, 2010
ObamaCare's Tort Deform
As if the expanded Medicaid benefits mandated by ObamaCare were not going to be enough of a burden on the states (the Nevada Department of Health and Human Services projects that the Silver State may be forced to accept more than 150,000 new enrollees and the state predicts its costs may exceed $600 million from 2014 to 2019). Now it appears that the legislation changes Medicaid in a way that opens the floodgates to massive litigation against the states.
There would be such a mad dash to pockets that deep that the republic literally would not long survive it. So the perfect, if temporary, solution seems to be to push that liability to the states.
I often wondered how the Democrats would scale this particular wall. Attorneys are the #1 constitutency for the party, by far. But, even as they crafted an ever-expanding role for government in health care, they couldn't allow the trial lawyers access to the federal treasury through litigation.Here are the words that are music to the ears of ambulance-chasing attorneys from sea to shining sea: "or the care and services themselves, or both.''
As recently brought to light by the Daily Caller's Jon Ward, those words on the 466th page of the 2,704-page health reform monstrosity passed into law last month amount to a massive fiscal stimulus for some of the least needy, fattest cats in the country.
[...]
The requirement of the states in what they give Medicaid recipients apparently shifts from making payments to their doctors to ensuring the medical "care and services themselves." So in conditions of doctor shortages, states could be legally judged to have failed in their obligations if a Medicaid patient had been unable to get a doctor's visit in timely fashion.
As the Daily Caller quoted Louisiana health secretary Alan Levine in a memo to fellow state officials, "With the expanded definition, it leaves every state vulnerable to a new wave of lawsuits any time someone cannot access a service, even if that service is limited by virtue of the rates we pay."
There would be such a mad dash to pockets that deep that the republic literally would not long survive it. So the perfect, if temporary, solution seems to be to push that liability to the states.
Sunday, April 04, 2010
J.D. Hayworth: Can "The Consistent Conservative" Defeat "The Maverick"?
Swept into office during the Republicans’ takeover of the House in 1994 and swept out when the Democrats reclaimed that body in 2006, J.D. Hayworth’s electoral fortunes have tracked closely with those of the Republican party. With the tide of this election cycle seeming to have turned both against incumbents and in favor of conservatives, the man who calls himself “the consistent conservative” has set his sights not on a Democrat but on the Arizona Senate seat of former Republican Presidential candidate John McCain.
During a Q&A session with journalists and bloggers moderated by the Nevada News Bureau, Hayworth claimed that, after having McCain represent them at the federal level for 28 years, Arizonans were suffering from “McCain fatigue.” But it was more than just fatigue with a long-term Senator that led him to believe McCain was an attractive target.
Hayworth referenced a Rasmussen survey taken last year that reported “61% of Arizona Republicans think McCain has lost touch with those in his own party.” He also declared that his campaign’s internal polling revealed that “over a third of McCain voters say they’re going to vote for the more conservative candidate.”
This primary battle has been undeniably fought on the right, with McCain accusing Hayworth of insufficient spending restraint during his House tenure and Hayworth countering that McCain has “now out-flip-flopped John Kerry.”
McCain was a main sponsor of the immigration reform bill that failed to pass the Senate in 2005 and that was largely opposed by the conservative base. In the wake of the murder of Arizona rancher Rob Krentz, according to Hayworth, McCain “was for the fence, the virtual fence and the guard at the border...if he’d just come out against guest worker he’d be 4 for 4.”
The McCain camp has attempted to exploit Hayworth’s support for such things as the Medicare prescription drug plan and use of earmarks to paint him as not a true fiscal conservative. Hayworth responded to this criticism by pointing to the projected cost of the immigration bill and McCain’s vote in favor of the $800+ billion TARP. His opponent’s effort to portray him as a big spender, Hayworth declared, “hasn’t worked, largely because my lifetime score for Citizens Against Government Waste is higher than his.” Hayworth’s CAGW score is actually just one point higher than McCain’s, 89-88.
Hayworth has been no stranger to controversy. He admitted that during his failed re-election campaign in 2006, he “came off as angry” in responding to his opposition. He recently claimed in a radio interview that a consequence of the way in which the decision of the Massachusetts Supreme Court allowing gay marriage was written is that “if you really had affection for your horse, I guess you could marry your horse.”
Hayworth admitted that the statement was “stupid, from the standpoint that it opens me to all sorts of ridicule and it screws up the message I’m trying to give.” While declaring that “it doesn’t mean that I believe the federal government should be peering into the bedrooms of consenting adults…and I don’t believe in micromanaging people’s lives,” he expressed his support for defining marriage exclusively as being between one man and one woman and for a Constitutional amendment cementing that definition.
His stance on immigration has also engendered much criticism from members of both parties. He was considered one of the staunchest opponents of the failed immigration reform and some conservatives, including the Wall Street Journal editorial board, attributed his defeat to his immigration views.
He disagreed with the contention that opposition to immigration reform was an electoral loser, saying “I think that’s about to be disproven in Arizona.”
Hayworth criticized conservatives “who are all happy with me cutting taxes but apparently even that is not enough. Now they want to pay substandard wages and they mistakenly believe that their embrace of open borders and a guest worker program will give them cheap labor ad infinitum… A lot of the money guys, and a lot of official Washington – Dick Harvey, Grover Norquist – they’re all into the open borders hooey. They’re perfectly content to whistle past the graveyard in the post-9/11 world. I think that’s incredibly dangerous, incredibly short-sighted.”
What to do with those already in the country illegally, some of whom have been for many years? By enforcing current laws, Hayworth stated, “They find it in their interest to self-deport, not to face criminal charges.” The issue of family members would be left to “judicial discretion.”
When asked about any regrets during his House tenure, the former talk radio host lamented the extent of the broadcast de-regulation bill, which has led to what he termed “the rise of MBA radio.” He added, as an example, “The cross-ownership of both television and newspapers by Gannett in Phoenix, I find troublesome.”
Other regrets included not being “prepared for the shrillness of what I still think were coordinated attacks between the, among the, alphabet networks and the Democrat minority” and “the culture of appropriations” that infected the GOP majority.
Hayworth has appeared on national radio talk shows, local talk radio in Las Vegas and made an appearance at an event in Las Vegas Friday night after the Q&A. He reported receiving donations from Nevada and other states across the country in his race against McCain, whom many conservatives grudgingly supported in his Presidential run. “The race has been nationalized and I don’t think it’s by my design but I’m sure happy to take advantage of it,” Hayworth said.
Mark Ciavola at the Right Pride Blog also commented on Hayworth's Q&A
During a Q&A session with journalists and bloggers moderated by the Nevada News Bureau, Hayworth claimed that, after having McCain represent them at the federal level for 28 years, Arizonans were suffering from “McCain fatigue.” But it was more than just fatigue with a long-term Senator that led him to believe McCain was an attractive target.
Hayworth referenced a Rasmussen survey taken last year that reported “61% of Arizona Republicans think McCain has lost touch with those in his own party.” He also declared that his campaign’s internal polling revealed that “over a third of McCain voters say they’re going to vote for the more conservative candidate.”
This primary battle has been undeniably fought on the right, with McCain accusing Hayworth of insufficient spending restraint during his House tenure and Hayworth countering that McCain has “now out-flip-flopped John Kerry.”
McCain was a main sponsor of the immigration reform bill that failed to pass the Senate in 2005 and that was largely opposed by the conservative base. In the wake of the murder of Arizona rancher Rob Krentz, according to Hayworth, McCain “was for the fence, the virtual fence and the guard at the border...if he’d just come out against guest worker he’d be 4 for 4.”
The McCain camp has attempted to exploit Hayworth’s support for such things as the Medicare prescription drug plan and use of earmarks to paint him as not a true fiscal conservative. Hayworth responded to this criticism by pointing to the projected cost of the immigration bill and McCain’s vote in favor of the $800+ billion TARP. His opponent’s effort to portray him as a big spender, Hayworth declared, “hasn’t worked, largely because my lifetime score for Citizens Against Government Waste is higher than his.” Hayworth’s CAGW score is actually just one point higher than McCain’s, 89-88.
Hayworth has been no stranger to controversy. He admitted that during his failed re-election campaign in 2006, he “came off as angry” in responding to his opposition. He recently claimed in a radio interview that a consequence of the way in which the decision of the Massachusetts Supreme Court allowing gay marriage was written is that “if you really had affection for your horse, I guess you could marry your horse.”
Hayworth admitted that the statement was “stupid, from the standpoint that it opens me to all sorts of ridicule and it screws up the message I’m trying to give.” While declaring that “it doesn’t mean that I believe the federal government should be peering into the bedrooms of consenting adults…and I don’t believe in micromanaging people’s lives,” he expressed his support for defining marriage exclusively as being between one man and one woman and for a Constitutional amendment cementing that definition.
His stance on immigration has also engendered much criticism from members of both parties. He was considered one of the staunchest opponents of the failed immigration reform and some conservatives, including the Wall Street Journal editorial board, attributed his defeat to his immigration views.
He disagreed with the contention that opposition to immigration reform was an electoral loser, saying “I think that’s about to be disproven in Arizona.”
Hayworth criticized conservatives “who are all happy with me cutting taxes but apparently even that is not enough. Now they want to pay substandard wages and they mistakenly believe that their embrace of open borders and a guest worker program will give them cheap labor ad infinitum… A lot of the money guys, and a lot of official Washington – Dick Harvey, Grover Norquist – they’re all into the open borders hooey. They’re perfectly content to whistle past the graveyard in the post-9/11 world. I think that’s incredibly dangerous, incredibly short-sighted.”
What to do with those already in the country illegally, some of whom have been for many years? By enforcing current laws, Hayworth stated, “They find it in their interest to self-deport, not to face criminal charges.” The issue of family members would be left to “judicial discretion.”
When asked about any regrets during his House tenure, the former talk radio host lamented the extent of the broadcast de-regulation bill, which has led to what he termed “the rise of MBA radio.” He added, as an example, “The cross-ownership of both television and newspapers by Gannett in Phoenix, I find troublesome.”
Other regrets included not being “prepared for the shrillness of what I still think were coordinated attacks between the, among the, alphabet networks and the Democrat minority” and “the culture of appropriations” that infected the GOP majority.
Hayworth has appeared on national radio talk shows, local talk radio in Las Vegas and made an appearance at an event in Las Vegas Friday night after the Q&A. He reported receiving donations from Nevada and other states across the country in his race against McCain, whom many conservatives grudgingly supported in his Presidential run. “The race has been nationalized and I don’t think it’s by my design but I’m sure happy to take advantage of it,” Hayworth said.
Mark Ciavola at the Right Pride Blog also commented on Hayworth's Q&A
Thursday, April 01, 2010
What Is It With Politicians and Phone Sex?
An RNC mailer gave out the number of a phone sex service.
The Republican National Committee sent a fundraising mail piece earlier this month with a return number that leads to a phone-sex line offering "live, one-on-one talk with a nasty girl who will do anything you want for just $2.99 per minute."Sound familiar? Well, lookey here.
Journalists who dialed in to a White House conference call Thursday hoping for a media-friendly reception got a far friendlier response than they were counting on.Politico link via Duane at AAB.
Instead of hearing Secretary of State Hillary Clinton and National Security Advisor Jim Jones on the other end laying out foreign policy and security threats, reporters were greeted by a recording on a phone sex line.
Computer Hell
I hate Internet Explorer 8. I am convinced that it is the worst piece of software ever developed.
It is buggy. It takes forever to start up or to open new tabs and windows. It frequently freezes and sometimes locks up completely. The display is horrible - it looks like an image of a browser screen instead of an actual browser screen. They even managed to find a way to make copying and pasting from websites unworkable.
Unfortunately, it is what I'm stuck with on my laptop for now.
It is buggy. It takes forever to start up or to open new tabs and windows. It frequently freezes and sometimes locks up completely. The display is horrible - it looks like an image of a browser screen instead of an actual browser screen. They even managed to find a way to make copying and pasting from websites unworkable.
Unfortunately, it is what I'm stuck with on my laptop for now.
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