Is the Health Care Law Unconstitutional?

“Under the Due Process Clause, no Supreme Court decision since 1935 has struck down any state or federal legislation for infringing economic liberties, and any such action would be radically inconsistent with current constitutional doctrine.” –Professor Mark Hall of Wake Forest Law School

Prof. Hall is referring to the last statute to be struck down under the 5th or the 14th amendments, A.L.A. Schechter Poultry Corp. v. United States (1935). Two years later, the Supreme Court upheld Congress’ authority under the commerce clause in West Coast Hotel v. Parrish (1937). In that case, Congress sought to set a minimum wage for women which the Plaintiff claimed went beyond the regulatory power given to Congress by the commerce clause, which provides that Congress may pass any law so long as it is regulating economic activity interstate commerce.

The question of the day is whether it is within Congress’ authority to pass a law which, in part, requires U.S. citizens to purchase health insurance under the Patient Protection and Affordable Care Act. Odds are it will. Recent cases where the Supreme Court ruled Congress overstepped it’s authority include U.S. v. Lopez (a guns near schools case) and U.S. v. Morrison (striking down the Violence Against Women Act as not affecting interstate commerce). The difference in those two cases was drawing a connection between the legislation’s effect and economic activity was tenuous at best, something the Court was unwilling to stomach.

Here, though, requiring citizens to purchase health care is clearly within the scope of the commerce clause as it clearly affects interstate commerce. Similarly, requiring South Dakota residents to own guns also affects interstate commerce. The difference? Rep. Hal Wick is proving his point backwards.

Via the NY Times.

Read Judge Steeh’s 10/7/10 opinion upholding Obamacare (Congress acting within commerce clause powers).

Read Judge Moon’s 11/13/10 opinion upholding Obamacare (Congress acting within commerce clause powers).

Read Judge Hudson’s 12/13/10 opinion excising Obamacare in part (Congress exceeded regulatory powers under commerce clause).

Read Judge Vinson’s 1/31/11 opinion striking down Obamacare in whole (Congress exceeded regulatory powers under commerce clause).


“To The University of Southern California known as The U.C.L.A.”

What happens when a testatrix’s will has the sort of ambiguity implicating one of the greatest sports rivalries in the US? Litigation! Litigation involving USC, the UC Regents, and the heirs of Cora L. Black. Ms. Black executed the following holographic will:

“Los Gatos, California May 2nd 1957

“I, Cora L. Black, Being of sound and disposing mind and Memory make this My last Will and Testament. I cancel all Other Wills made by me.

“To The University of Southern California known as The U.C.L.A.  My entire Estate for Educational purposes.

“My Estate consists of Stocks bonds

“The house in which I live is to be sold and the money shall be part of The Estate. All monthly bills shall be paid by The Bank of California Who are to administar [sic] This Estate.

“If any claims are made by relatives They are to be given one dollar.

“Signed by me This Second day of May 1957.


The trial court, in a dramatic re-reading of Black’s will held that there was no latent ambiguity in this devise. Rather, the lower court eliminated one of the beneficiaries, USC, and interpreted “The University of Southern California” to mean “the university in Southern California.” Further, the court believed the capitalization of the word “University” was of no significance because people sometimes capitalize the word and on other occasions they do not. Ultimately, the court awarded the entirety of Black’s estate to UCLA, leaving USC and the surviving heirs out in the cold.

As a rule in the law of Wills, a very central rule, a court is not at liberty to read the language of a will with anything other than its plain, ordinary meaning. Accordingly, the appellate court reversed, sending the case back to the trial court to admit parol evidence in order to determine what exactly was meant by the phrase “To The University of Southern California known as The U.C.L.A.”

Estate of Black, 211 Cal. App. 2d 75 (1962).

CLS’s “Unrepentant Participation in or Advocacy of a Sexually Immoral Lifestyle” Discrimination Won’t Wash at Hastings

The Christian Legal Society of UC Hastings seeking to discriminate against homosexual members took their case all the way to the U.S. Supreme Court via Christian Legal Society v. Martinez (2010). And in a 5-to-4 decision handed down today, they lost.

In requiring CLS — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. . . CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.

From the SF Chron.

Also news today: guns guaranteed everywhere!

Using April Fools’ Day as a Legal Argument (Murder, Rape, and Contract Formation, Oh My!)

When it comes to April Fools’ Day and contract formation, consider the basics. A contract is a legally enforceable agreement. In order to have an enforceable contract, there must be offer and acceptance. An offer is a manifestation of intent of an agreement judged using the test of whether a reasonable person would believe that an offer had been made.  Therefore, if on April Fools’ Day an offer was made which a reasonable person would believe was a legitimate offer and that offer is accepted, a binding contract is created even if the offeror was merely joking. However, if both the offeror and the offeree knew the agreement was a joke, no contract would be formed because there was no mutual assent to the agreement. From Lucy v. Zehmer, 84 SE 2d 516 (1954):

We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention.

See also Keller v. Holderman, 11 Mich. 248 (Mich. 1863).

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day of trial, when he offered to return it to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter–the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker’s hands, and had intended to insert a condition in the check that would prevent his being liable upon it; but as he had failed to do so, and had retained the watch, the judge held him liable, and judgment was rendered against him for the amount of the check.

When the court below found as a fact that “the whole transaction between the parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the check to the plaintiff.

Note the digression on the topic regarding collective bargaining in Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961).

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Some other recent instances:

People v. McMullen, 92 AD 2d 1059 (1983).

Defendant testified at trial that the sexual acts described by complainant were consensual; that she ran naked from the house as part of an April Fool’s Day prank; and that she was injured when he pulled her back to the house so she would not wake his neighbors.

US v. Mohammad, 53 F. 3d 1426 (7th Cir. 1995).

Defense counsel’s other remarks, such as noting to the jury that the witness had testified before the grand jury on April Fool’s Day, no doubt contributed to the atmosphere in which the court handled the matter.

Winiarz v. State, 820 P. 2d 1317 (NV Sup. Ct. 1991).

On April Fool’s Day, 1984, Consuelo and Jacob Winiarz (to whom Consuelo was ostensibly married by virtue of an invalid marriage ceremony) decided to play a trick on a friend who was visiting them at their home. Consuelo and Jacob staged an argument, whereupon Consuelo pulled a gun on Jacob and fired at him, using blanks. Jacob pretended to die, spilling ketchup over himself to suggest that he was bleeding.

On Easter Day, 1984, a different group of friends was at Consuelo and Jacob’s home. Most of the people present, including Consuelo and Jacob, had been either smoking marijuana or drinking. Consuelo and Jacob appeared to argue and Consuelo shot at Jacob four times. When she allegedly first realized that there were real bullets in the gun and that Jacob had been wounded, Consuelo called an ambulance and went for help. [Jacob subsequently died and Consuelo was charged and convicted of his murder, twice.]

When Judges Get Punny

A sampling of retired Judge John Robert Brown’s delights from the 5th Circuit Court of Appeals:

“Congress, of course, has the Cold Power to preempt. Of the three situations discussed by the Court, the first (direct conflict) is easy, for it is Crystal Clear that the state law must yield. The third, in which the ordinance may supplement the federal law and thereby extend or increase the degree of regulation, is more troublesome. For where Congress has chosen to fashion a regulatory scheme that is only the Head and Shoulders, but has not opted to regulate every aspect of the area, the states have implied power to flesh out the body. It is where Congress fails to clearly signify, with an appropriate preemption clause, its intent to fully occupy the area regulated that the problem arises. With some Joy, the Court finds there is such a clause.”

Chemical Specialties Manufacturers Ass’n, Inc. v. Clark, 482 F. 2d 325 (5th Cir. 1973).

See more of Judge Brown’s antics here and here.

Res Ipsa Loquitur

It seems that appellant consumed one plug of his purchase, which measured up to representations, that it was tobacco unmixed with human flesh, but when appellant tackled the second plug it made him sick, but, not suspecting the tobacco, he tried another chew, and still another, until he bit into some foreign substance, which crumbled like dry bread, and caused him to foam at the mouth, while he was getting “sicker and sicker.” Finally, his teeth struck something hard; he could not bite through it. After an examination he discovered a human toe, with flesh and nail intact. We refrain from detailing the further harrowing and nauseating details.

The thing, truly does, speak for itself.

Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490 (1918).