Not Hearing Anything Lately From Republicans About Their Frivolous Suit Against Obama

Remember a few months ago when John Bohner was talking about filing a ridiculous law suit against Barack Obama? Politico points out that, despite the Republican hype, we haven’t heard anything about this suit recently:

House Speaker John Boehner came out swinging hard last June when he announced that his chamber would take President Barack Obama to court. The suit, charging that the president grossly exceeded his constitutional authority by failing to implement portions of the Obamacare law, was billed as an election-season rallying point for aggrieved Republicans. But days before the midterms the House’s legal guns seem to have fallen silent.

Lawyers close to the process said they originally expected the legal challenge to be filed in September but now they don’t expect any action before the elections.

Some attribute the delay to electoral politics — suggesting that Republicans were worried it could rile up the Democratic base — though the GOP is mum on why the suit has yet to be filed.

Whatever the reason, the delay means the core of the suit could effectively be moot before the Obama administration even has to respond to it in court. The case was expected to center on an employer mandate provision that Obama twice delayed but is now set to kick in for many employers on Jan. 1.

Bloomberg says the suit might be more trouble than it is worth for the Republicans:

Part of the problem may lie in the troubled history of the suit. In mid-September, the GOP’s law firm dropped the case over “political pressure,” according to a Republican aide speaking to Politico. That same week, the Seventh Circuit Court of Appeals tossed out a lawsuit similar to the House’s from the Association of American Physicians and Surgeons.

Politically, the lawsuit presents catch-22s for the GOP. First, the party has to choose between upsetting conservatives (some of whom support impeachment) by not suing the president or bewildering the rest of the country by suing the president.

A July CNN/ORC poll found that 65 percent of Americans don’t think the president should be impeached, 57 percent don’t support the lawsuit, and less than half of respondents thought Obama has gone too far with his executive orders. Fifty-six percent of conservatives were in favor of the impeachment, compared to 26 percent of moderates.

The lawsuit was a compromise, but appeasement didn’t really work. The pro-impeachment conservative wing of the party has been given voice by Sarah Palin, who told Breitbart News that “you don’t bring a lawsuit to a gunfight.”

Second, if Boehner had gone through with suing the president before the midterm elections, it might have help Democrats fundraise and motivate the liberal base even more than it already had. The Democratic Congressional Campaign Committee made $7.6 million in the month after the suit was announced, including $2.1 million in one weekend off emails warning of impeachment.

Plus Republicans might be embarrassed if small businessmen realize that the Republican Party is pursuing a lawsuit which seeks to punish Obama for trying to make conversion to the Affordable Care Act easier for small business, as many small business owners had requested. This hardly sounds like where the Republicans should draw the line in the sand against what they claim is tyranny from the Obama administration. Of course they had to settle for this suit as they couldn’t find anything of substance with which to pursue this absurd claim.

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Defending Abortion Rights

The current podcast in the playlist on my phone is an interview with Katha Politt on the Diane Rehm Show from last week. While I have only heard half of it so far, the author has made many good points regarding attitudes towards defending abortion rights, some of which are reflected in my recent post on the culture war. Pollitt defends abortion rights on principle, as opposed to taking a halfhearted position of approving of legalization while still acting like abortion is something shameful, while debunking the conservative framing on the issue. I anticipate hearing more good points in the remainder of the podcast and from reading her book.

I decided to mention this now, before concluding the podcast, as I just noticed that Hanna Rosin has an interview up at Slate reviewing her book, Pro: Reclaiming Abortion Rights. While I have not read the book, the review does give a good feel for the points I have heard so far in the interview and presumably reflects her book. The review begins:

I had an abortion. I was not in a libertine college-girl phase, although frankly it’s none of your business. I was already a mother of two, which puts me in the majority of American women who have abortions. Six out of 10 are mothers, which makes sense, because a mother could not fool herself into believing that having another baby was no big deal.

I start the story this way because Katha Pollitt, author of Pro: Reclaiming Abortion Rights, would want it this way. In fact any woman who’s reading this piece and has had an abortion, or any man who has supported one, should go in the comments section and do the same thing, until there are so many accounts that the statement loses its shock value. Because frankly, in 2014, it should be no big deal that in a movie a young woman has an abortion and it’s no big deal. We shouldn’t need a book explaining why abortion rights are important. We should be over that by now.

The reason we’re not, according to Pollitt, is that we have all essentially been brainwashed by a small minority of pro-life activists. Only 7 to 20 percent of Americans tell pollsters they want to totally ban abortion, but that loud minority has beaten the rest of us into submission with their fetus posters and their absolutism and their infiltration of American politics. They have landed us in the era of the “awfulization” of abortion, Pollitt writes, where even pro-choicers are “falling all over themselves” to use words like “thorny,” “vexed,” “complex,” and “difficult” instead of doing what they should be doing, which is saying out loud that abortion is a positive social good.

Pollitt aims her book at the “muddled middle” who have been infected by the awfulization without thinking about it that much. To win them back she’s crafted a lengthy Socratic response dissecting the contradictions on the pro-life side. If you know Pollitt’s writing at all, it’s no surprise what she believes. But by the end of the book, it’s a surprise to realize that while the fight over abortion has been going on for more than 40 years, we’ve all forgotten what’s at stake. The left especially has lost sight of its original animating purpose.

Later in the review:

Pollitt spends significant energy dissecting the pro-life side’s contradictions. This largely involves explaining how the concept of personhood, when applied to a fetus, makes very little sense. She cites one poll for example showing that 38 percent of people say abortion is as “bad as killing a person already born.” But in the same poll 84 percent say it’s fine to save the life of a mother. If you really think about it, this position is untenable. No one would say it was fine to kill a toddler if the mother needed its heart. The pro-life position, she concludes, involves a reflexive moralism but doesn’t really reflect what people know to be true, which is that the fetus and the mother have a complicated relationship, unlike any other.

More at The American Prospect, Cosmopolitan, and  Elle.

I know it might not necessarily be right to recommend a book based upon listening to half a podcast and only reading the reviews of others, but this book certainly does appear worth reading. I just placed my order for a copy.

Update: In related news, the Supreme Court has blocked portions of the restrictive anti-abortion law in Texas.

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By Not Acting, Supreme Court Puts United States On A Path Towards Marriage Equality

By deciding to allow appeals court rulings in five states stand, the Supreme Court has essentially put the United States on a path to make this legal in most, if not all, of the United States. While same-sex marriage only directly affects a small percentage of the country, it has become a litmus test to distinguish left from right, and demonstrate the emptiness of Republican claims of supporting smaller government and more freedom.

For liberals, same-sex marriage is a fundamental matter of individual liberty. Conservatives, who often fail to understand liberal concepts of liberty and equal treatment under the law, limit their support for freedom to behaviors they approve of. Often to conservatives, freedom of religion means the freedom to impose their religious views upon others.

This affects far more than those in the five states where federal appeals courts have already ruled that bans on same-sex marriage is unconstitutional. From FiveThirtyEight:

The U.S. Supreme Court’s decision Monday to decline hearing a series of appeals cases on same-sex marriage will have the effect of immediately legalizing gay marriage in Indiana, Oklahoma, Utah, Virginia and Wisconsin. When combined with the 19 states (and the District of Columbia) that had previously legalized same-sex marriage, these states have a collective population of roughly 165 million, according to 2013 census figures.

That means for the first time, same-sex marriage is legal for the majority of the U.S. population. The 26 states where the practice is not legal have a total population of about 151 million.

The Supreme Court’s decision may also lead to the legalization of same-sex marriage in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. Those states have an additional 25 million people combined. If they follow suit, 30 states and the District, totaling about 60 percent of the U.S. population, would allow same-sex marriage.

SCOTUSblog also states that this will extend legalization of same-sex marriage to thirty states and  “there are four other federal appeals courts that are currently considering challenges to state bans on same-sex marriage.” One implication of this is that, “A ruling by at least one of them that states can prohibit same-sex marriage would create the kind of disagreement among the lower courts that might spur the Court to grant review.”

The New York Times thinks that the result of today’s ruling will  ultimately be expanding legalization of same-sex marriage nation-wide in a matter comparable to elimination of laws prohibiting interracial marriage, with the Supreme Court unlikely to rule against this in the future.

Should the court then take up a same-sex marriage case next year or in another term, the justices may be reluctant to overturn what has become law in the majority of American states, said Walter E. Dellinger III, who was an acting United States solicitor general in the Clinton administration.

“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” Mr. Dellinger said. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”

There is precedent for such an approach: The court waited to strike down bans on interracial marriage until 1967, when the number of states allowing such unions had grown to 34, even though interracial marriage was still opposed by a significant majority of Americans. But popular opinion has moved much faster than the courts on same-sex marriage, with many Americans and large majorities of young people supporting it.

Buzzfeed has a listing of the legal status of same-sex marriage in each state.

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Another Activist Conservative Judge Attempts To Destroy Obamacare

A federal judge in Oklahoma, appointed by George W. Bush, has repeated the same ridiculous argument given by previous activist conservative judges to attempt to stop Obamacare. The claim is that the Affordable Care Act only provides for subsidies for policies purchased on state-run exchanges and not the federal exchange. This is based upon taking one portion of the law, which is poorly written and might suggest this, while ignoring all the other portions of the law which do not make such limitations on who can qualify to receive subsidies.

Previously the 4th Circuit Court of Appeals in Richmond, Virginia ruled that subsidies should be available for policy holders regardless of whether they were purchased on a state or the federally run exchange.  The D.C. Court of Appeals ruled in the opposite direction, with two Republicans voting that subsidies should be limited to policies purchased on state exchanges and one Democrat backing the Affordable Care Act. Subsequently the court vacated that decision in order to have the full court rule on this.

Think Progress has more on the case, and the arguments against the view which has only been supported by Republican judges.

The partisan divide on this issue raises some concern about how the Supreme Court might rule. I suspect that Chief Justice John Roberts would again break with the other Republicans and oppose such an effort which would destroy Obamacare as he has done in the past. If for no other reason, he might not want his court to go down in history for keeping the United States as the only major industrial nation without anything approaching universal health care based upon such a frivolous argument. However it is not entirely reassuring to have to hope that Roberts will vote in a reasonable manner.

While Republicans in public would probably support destroying Obamacare in this manner, those who are not totally out of touch with reality might actually prefer that this case does not succeed. While they wouldn’t mind seeing their party take credit for destroying Obamacare in general, despite how successful the law has been, would they really want to be responsible for increasing taxes on millions of Americans by taking away their tax subsidies which help pay for health care coverage?

Republican backers in the insurance industry are also likely to want to see this case fail. The worst case scenario for the insurance industry would be if they are required to provide health insurance to everyone who applies without regard to pre-existing conditions but if they don’t see increased business, and expansion of the risk pool, from sales to those receiving subsidies.

 

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Kansas Supreme Court Keeps Kansas In Play For Control Of Senate

It continues to look like Kansas might have a bearing on which party controls the Senate. As I previously discussed, with the Democratic candidate dropping out of the Kansas Senate race, independent Greg Orman has a real chance of defeating Republican Pat Roberts. Multiple polls have showed Orman defeating Roberts in a head to head race, but Roberts led in a three way race. After Democratic candidate Chad Taylor dropped out, Orman led in the polls but the anti-Roberts vote was split when Taylor was listed.

In order to improve Roberts’ chances, Kansas Secretary of State Chris Korbach (who is also a member of Roberts’ honorary campaign committee) played politics and refused to take Taylor’s name off the ballot. The Kansas Supreme Court has unanimously ruled that Taylor’s name should be removed from the ballot now that he has dropped out.

Kansas election law does provide for the ability of the Democratic Party to name a replacement after Taylor dropped out, but obviously they have no intention of doing so. Korbach is claming that the Democrats are required to name a replacement, but it is rather absurd that a party must run a candidate if they do not desire to do so.

Rick Hasen, an election law expert from the University of California, Irvine, said that it was unlikely that Kobach would be able to force the Democrats to name a replacement for Taylor.

“If Democrats refuse to name or no candidate agrees to serve, then what? It seems like it would be a tough First Amendment claim to FORCE a party to name a replacement,” Hasen wrote in an analysis. “Perhaps if Democrats do nothing Kobach will realize there’s not much he can do and drop the issue.”

Despite his current lead, it is still possible that the Republicans can hold onto the seat. The national party is taking over management of Roberts’ campaign, and has called in Bob Dole to help secure the seat. Even if Orman maintains his current lead in the polls and wins, there is no guaranteed that he will caucus with the Democrats. With the battle for control of the Senate so close, it is certainly possible that he could wind up casting the deciding vote.

Update: Of the various reactions to this situation, the most interesting was for the Democrats to tell Kobach that they nominated him for the Senate seat. We won’t see that happen. Kobach has given up and is putting out the ballots with no Democratic candidate listed.

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Appeals Court Strikes Down Gay Marriage Ban In Wisconsin and Indiana

On Thursday Judge Richard Posner, a Reagan appointee, wrote the decision after the The U.S. 7th Circuit Court of Appeals in Chicago  stuck down the bans against same sex marriage in Wisconsin and Indiana.There were a number of arguments in his decision which were interesting to read, and which might have an impact when this issue inevitably reaches the Supreme Court. The Dish collected some selections. First, via Slog:

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny…

The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community. Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.

Rob Tisinai quoted an argument to debunk the  “responsible procreation argument” which he first explained: “that the purpose of marriage is to encourage responsible procreation, and because only straight couples can accidentally procreate, only straight couples need the bond of marriage to keep them together and set up a home for the kids. Gay couples, who only have kids on purpose, don’t need any such prodding.” From Posner’s decision:

Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

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Federal Court Throws Out Abortion Restrictions In Texas

Republicans in control of state governments have been trying to restrict access to both abortion and contraception but on Friday a federal judge rule against new restrictions on abortions in Texas:

A federal judge in Austin, Tex., blocked a stringent new rule on Friday that would have forced more than half of the state’s remaining abortion clinics to close, the latest in a string of court decisions that have at least temporarily kept abortion clinics across the South from being shuttered.

The Texas rule, requiring all abortion clinics to meet the building, equipment and staffing standards of hospital-style surgery centers, had been set to take effect on Monday. But in his opinion, Judge Lee Yeakel of the United States District Court in Austin said the mandate placed unjustified obstacles on women’s access to abortion without providing significant medical benefits.

The rule “is unconstitutional because it imposes an undue burden on the right of women throughout Texas to seek a pre-viability abortion,” he wrote.

Think Progress has more on Republican efforts to restrict abortions using sham health laws:

One of the most significant innovations developed by lawyers and lawmakers who oppose abortion are sham health laws that, on their surface, appear intended to make abortions safer, but which have the practical effect of making abortions difficult or impossible to obtain. Texas’s House Bill 2 (HB2) is one of these laws. Last October, a provision of HB2 took effect that prohibited doctors from performing abortions unless they have admitting privileges in nearby hospitals. Judge Yeakel halted that provision shortly before it took effect, noting that “there is no rational relationship between improved patient outcomes and hospital admitting privileges.” The Fifth Circuit reinstated the law only a few days later.

On Monday, another provision of HB2 is supposed to take effect. This provision imposes rigid new architectural requirements on Texas abortion clinics, including “electrical, heating, ventilation, air conditioning, plumbing, and other physical plant requirements as well as staffing mandates, space utilization, minimum square footage, and parking design” requirements. Many clinics are physically incapable of complying with these requirements in their existing locations. For those clinics, “[t]he cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars.” The remaining clinics can expect to pay as much as 1.5 million dollars to bring their facilities into compliance with the law. According to Yeakel’s opinion, should this provision of the law take effect, “only seven facilities and a potential eighth will exist in Texas that will not be prevented . . . from performing abortions.”

Before HB2 became law, by contrast, there were 40 licensed abortion clinics in Texas.

The new architectural requirements require abortion clinics to meet the standards established for what are known as “ambulatory surgical centers” in the state of Texas. Yet, as Yeakel explains, there’s little good reason to treat abortion clinics this way. Many clinics, for example, do not perform surgical abortions at all, only medication abortions that use drugs to terminate a pregnancy. Yet the Texas law requires abortion clinics that perform no surgeries whatsoever to undertake expensive renovations that transform them into surgical facilities.

Even in clinics that do perform surgical abortions, women are more likely to experience higher health risks because HB2 forces clinics close to them to shut down then they are to gain some benefit from the new restrictions. “Higher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions almost certainly cancel out any potential health benefit associated with the requirement.”

The most remarkable portion of Yeakel’s opinion, however, may be the fact that he does not simply analyze the effect of Texas’s law. He also accuses the state of outright dishonesty. Responding to the state’s argument that some Texans can seek abortions in New Mexico if they are unable to obtain one in Texas thanks to HB2, Yeakel notes that this argument completely undermines any suggestion that these laws are supposed to protect women’s health:

If the State’s true purpose in enacting the ambulatory-surgical-center requirement is to protect the health and safety of Texas women who seek abortions, it is disingenuous and incompatible with that goal to argue that Texas women can seek abortion care in a state with lesser regulations. If, however, the State’s underlying purpose in enacting the requirement was to reduce or eliminate abortion in parts or all of Texas, the State’s position is perfectly congruent with such a goal.

Yeakel, in other words, calls a sham a sham. He recognizes, in the words of the Supreme Court, that the purpose HB2 is to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” And he comes just one step from outright accusing the state of lying when it claims that the law was actually enacted to protect women’s health.

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Can John Hinckley Be Tried For The Murder Of James Brady?

Jamess Brady

Having completed countless death certificates over the years I find these to be far less meaningful than the general public--a fact that I bet most physicians are well aware of. The cause of death is often questionable, especially when a patient dies at  home and no autopsy is done. In that case we must assume that the medical examiner is correct when they say that the cause of death is natural, and typically attribute the cause to whatever chronic conditions the patient might have. Realistically we know that there are also many other possibilities which might have caused death such as a sudden myocardial infarction, arrhythmia, or pulmonary embolism. This week we saw an unusual situation in which a death was ruled to be homicide years after a shooting, in the case of James Brady. It is certainly a valid argument that he did die from medical problems which arose as a consequence of the shooting, and knowing the common ambiguities in death certificates I see no problem with attributing the cause of death to the shooting.

This has ramifications beyond the cause of death on the death certificate, ranging from adding to the homicide rate to raising the question of whether the shooter, John Hinckley, could now be tried for murder. A couple of attorney bloggers, Doug Mataconis and Eugene Volokh  have looked at this issue. Volokh’s opinion is that Hinkley cannot be tried for murder for two reasons:

1. The year-and-a-day rule: At common law, a murder charge required that “the death transpired within a year and a day after the [injury]” (see Ball v. United States (1891), and this apparently remains the federal rule (see United States v. Chase (4th Cir. 1994)). Many states have apparently rejected this rule, given the changes in modern medicine that make it much easier to decide whether an old injury helped cause a death; but though the Supreme Court in Rogers v. Tennessee (2001) held that a court could retroactively reject the rule without violating the Ex Post Facto Clause (which applies only to legislative changes to legal rules) and the Due Process Clause, any such retroactive rejection of the year-and-a-day rule seems unlikely in this case (given that for the rule to be reversed the case would likely need to go up to the Supreme Court, and that in any event the rule had been applied relatively recently, in Chase).

UPDATE: But wait! Hans von Spakovsky points out that D.C.’s highest court rejected the year-and-a-day-rule in United States v. Jackson (1987). I at first didn’t check the D.C. precedents, focusing just on precedents from the normal article III federal system, since Hinckley was tried in federal district court. But Hinckley was tried for violating D.C. law as to the shooting of Brady (though the case was in federal district court because of the federal charges as to the shooting of President Reagan and the Secret Service agent), and by hypothesis would be retried for violating D.C. law. It is D.C. law that would apply here.

Yet Jackson was a 1987 case, decided after the Hinckley shooting. It expressly stated that, as of 1987, the year-and-a-day rule was in effect under D.C. law:

The common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly repealed or modified. [Citations omitted throughout. -EV] In 1776, Maryland adopted the common law of England as it then existed. Therefore, we look to early Maryland law to resolve the question whether the year and a day rule is law in the District of Columbia.

The Court of Appeals of Maryland has held [in 1974 and in 1985] that the year and a day rule is part of the common law of Maryland because it was part of the English common law in 1776. A division of this court (in an opinion subsequently vacated for reasons not pertinent here) has unanimously concluded [in 1979] that the rule retains its viability in the District of Columbia. In re J.N., Jr., 406 A.2d 1275, 1283 (D.C. 1979).

We follow this reasoning in concluding that the common law year and a day rule is today the law in the District of Columbia.

And the D.C. court (in Jackson) expressly held (based on the Ex Post Facto Clause) that its abrogation of the rule would thus apply only prospectively, to prosecutions after that decision.

What should the effect of that be? On one hand, as I noted above, the U.S. Supreme Court in Rogers held that Tennessee courts could change the rule without violating the Ex Post Facto Clause, so that might undermines Jackson‘s prospectivity-only reasoning. This might mean that the prospective-only rule can be retroactively changed to a retroactivity-OK rule.

But on the other hand, Jackson expressly stated — in a discussion of substantive D.C. law, not of the Ex Post Facto Clause — that, as of 1987, the year and a day rule was still the law in D.C. And the U.S. Supreme Court in Rogers stressed that “perhaps [the] most important[]” part of the reasons for its acceptance of the Tennessee court’s retroactive rejection of the rule was that, “at the time of petitioner’s crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee.” The D.C. Court of Appeals’ analysis in Jackson makes clear that “at the time of [Hinckley's crime] the year and a day rule” had much more than a “tenuous foothold” as part of D.C. criminal law.

So I think that, if Hinckley were tried now for murder under D.C. law (which he couldn’t be, for the independent reasons below, but let’s set those aside for now), he would be tried under D.C. law as it existed in 1981, at the time of the shooting. And, given the D.C. highest court’s analysis of D.C. law in Jackson, that as-of-1981 law would include the year-and-a-day rule, which would make Hinckley substantively not guilty of the crime of murder.

2. Double jeopardy and collateral estoppel: But say the year-and-a-day rule didn’t apply here — hasn’t Hinckley already been tried for the shooting, and doesn’t the Double Jeopardy Clause stop him from being retried? The answer is yes, but in a circuitous way.

a. It’s OK to try someone for murder, even if he’s already been convicted of the attempted murder: If Hinckley had been tried for attempted murder and found guilty when Brady was still alive, he could be tried for murder after Brady died. Indeed, this is pretty much what happened in Diaz v. United States (1912), and this remains the law today, see Garrett v. United States (1985):

In Diaz v. United States, 223 U.S. 442 (1912), the Court had before it an initial prosecution for assault and battery, followed by a prosecution for homicide when the victim eventually died from injuries inflicted in the course of the assault. The Court rejected the defendant’s claim of double jeopardy, holding that the two were not the “same offense” ….

For a recent state case applying this rule, see State v. Hutchinson (N.H. 2011), which also cites other cases from other states.

b. It’s sometimes OK to try someone for murder, even if he’s already been acquitted of the attempted murder: Say someone (not as in the Hinckley case) acted extremely recklessly and injured someone else as a result. If the reckless person were tried for attempted murder, he’d be acquitted, because attempted murder generally requires a conscious purpose to kill, not just reckless endangerment.

But say the injured person then dies. The defendant could then be retried for murder, and convicted, because actual murder (not attempted murder) can happen even if the defendant didn’t have a conscious purpose to kill, so long as he was extremely reckless.

c. But the jury’s conclusion that Hinckley was insane is now binding on the government, and thus precludes a retrial for murder: Under the “collateral estoppel” doctrine (Ashe v. Swenson (1970)), “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” That’s most commonly applied in civil cases, but it also applies in criminal cases, against the government (so long as it’s the same government involved in both cases).

The jury determined by a valid and final judgment that Hinckley was insane, and thus couldn’t be liable for attempted murder. This judgment is binding on the government, and since the insanity defense applies the same way for murder as for attempted murder, it means that Hinckley would now be conclusively presumed to have been insane for purposes of any murder prosecution as well. He would have an ironclad defense to the murder charge, and thus any case against him couldn’t proceed. For a similar case, see United States v. Oppenheimer (1916), though there the defense was the statute of limitations rather than insanity.

(Note that The federal insanity defense has been considerably narrowed since the Hinckley trial — indeed, as a result of the Hinckley trial. But this legislative narrowing can’t be retroactively applied, given the Ex Post Facto Clause.)

So no retrial for Hinckley, despite the medical examiner’s conclusion, and even if that conclusion could be proved beyond a reasonable doubt.

Mataconis concluded his post by saying that, “Ultimately, the question of whether or not murder charges are brought will be in the hands of the U.S. Attorney in Washington, and the District’s Attorney General. As things stand right now, though, it seems as though such charges would be on legally tenuous grounds.”

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Another Frivolous Suit Against Obamacare Thrown Out Of Court

There have  been a lot of frivolous suits filed by various Republicans lately, ranging from suits to try to block the Affordable Care Act to the House Republicans’ own suit. While we had contradictory rulings in the case making the absurd argument that the ACA did not intend to allow subsidies to those who obtained coverage on the federal as opposed to a state exchange, another ridiculous argument was thrown out of court this week.

The argument was that the Affordable Care Act is unconstitutional because of the requirement that revenue bills originate in the House, and the ACA does include mechanisms to raise revenue to pay for the law. The argument never made much sense but it has attracted increased attention among conservatives since George Will had a column on how the Supreme Court doomed the ACA in its ruling that the government had the power to charge a penalty for noncompliance with the mandate based upon the power to tax.

There are two major errors in this argument. First is that there is precedent for the Senate to take a House bill and then pass it with major changes, and still have this considered to have originated in the House. As the House also passed their own version of health care reform, this was sufficient to meet this criteria. Secondly, the courts have long differentiated between a bill with a primary purpose of levying taxes versus a bill which incidentlaly raises revenue. The Appeals court argued that, “The Supreme Court has held from the early days of this nation that revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.”

Consider the irony in two of the Republican arguments against the bill. In this case the Republicans oppose the Affordable Care Act because it contains provisions to pay for itself. While Democrats have adopted a pay as you go attitude towards new government programs, Republicans prefer to purchase their programs on credit, such as with the Iraq War and George Bush’s Medicare D Program. When it is Republicans spending the money, deficits don’t matter.

In the case of the House law suit, Republicans are suing Obama for delaying implementation of a portion of the law (the mandate on small business) which they have claimed would be harmful and want repealed. Republicans also had no objection to a similar delay by George Bush in enforcing requirements of the Medicare D program.

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Activist Conservative Judges Attempt To Destroy Obamacare, Causing Potential Problems For Republicans

We had two different federal appeals court panels give conflicting rulings on Tuesday regarding the legality of subsidies in the Affordable Care Act. This came about due to some ambiguities in the writing of the law–primarily a proof reading error at one point which suggests that only insurance purchased in state exchanges can allow subsidies. The bulk of the law makes it clear that people purchasing coverage can qualify for subsidies regardless of whether purchased on a federal or state exchange.

It is impossible to predict with certainty, but legal experts are generally predicting that the Supreme Court would follow precedent and go with the overall intent of the law as opposed to allowing the conservative activist judges from the United States Court of Appeals for the District of Columbia to overturn the law.

In the event that the Supreme Court should support this idea we could then have a rather chaotic situation. About 4.5 million people would lose their subsidies, making many people very angry at any Republican politicians who refused to work towards a fix.  There would be two potential solutions. One would be for each state to build their own exchange. Presumably they would now have the benefit of the experience of those working on the federal exchange, so this might not be as difficult as it sounds. However, a far simpler solution would be for Congress to pass legislation to clear up the ambiguous wording in the Affordable Care Act which led to this situation.

We could have rather interesting political battles if Republicans would continue to call for repeal and refuse to act to make the fix. This would anger many voters who in effect are receiving a significant tax increase by losing their subsidies, and ultimately might lose their medical care. Would Republicans stick to demanding repeal or be forced to give into demand to allow people to receive the subsidies and continue their insurance coverage? If I was a Republican politician, I think I might hope that the Supreme Court rules in favor of the current subsidies and avoids this political problem.

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