Republican attempts to defund the PPACA (“Obamacare”) have hit a standstill with numerous party leaders opposing the tactic as self-destructive. Conservative columnists like Jennifer Rubin have repeatedly criticized conservatives for failing to offer any replacement to the PPACA. Having been rebuffed by the Supreme Court and by voters in the 2012 election, and lacking any alternatives, the current conservative strategy has been reduced to “stand up and win the argument.”
But why stop there? Republicans ought to go a step further and simply declare victory in the war on Obamacare. Despite dozens of failed repeal efforts by congressional Republicans, there is one viable bill that could finally and decisively end the Obamacare nightmare:
The REname (the) PPACA (and) Enact Additional Legislation Outlawing Bad Acronyms (and) Mandate All Credit (be) Assigned (to the) Republican Establishment Act — or the REPEAL OBAMACARE Act.
The Act would keep in place every single provision of the PPACA but would retroactively amend the title of the law to something conservatives approve of. The legislative history for the Act (literally revisionist history) would provide a detailed account of President Obama’s clear opposition to an individual mandate and his preference for a single-payer health care system. It would then describe how the Republicans stonewalled the President’s socialist single-payer agenda and replaced it with a conservative alternative championed by notable Republicans like Newt Gingrich and Mitt Romney and endorsed by the Heritage Foundation and the renowned free-market advocates, the Economist. Republicans would be specifically credited with defeating socialism and taking the first step toward solving America’s long-standing health care problem.
The Act would call for all congressional records of the Republican opposition to the PPACA to be destroyed and members of Congress would be forever banned from mentioning the 2009 health care negotiations.
Finally, the new law will create a separate statute that outlaws the stupid and misleading legislative acronyms that seem to increase annually. This new law, created “to increase government transparency and accountability,” will have broad bi-partisan appeal. Now that conservatives have suddenly discovered privacy concerns surrounding federal anti-terrorism Continue reading
A federal judge has found that the NYPD’s stop-and-frisk program violated the constitutional rights of tens of thousands of New Yorkers. Last week, the Huffington Post reported that nearly 1 in 25 Americans were arrested in 2011. Stories about the militarization of police and the abuse of civil forfeiture laws have gained widespread attention. But despite national skepticism about the invasiveness of the federal government’s security measures, aggressive police tactics on the local level remain largely unchecked.
For those living in a free society, the experience of being stopped by a police officer is a uniquely stressful event. While many of us feel intimidated when dealing with a boss, a parent, or a judge, we can at least walk away from those situations without fearing physical intimidation or worse. Indeed, a person may even feel empowered telling a boss to ‘fuck off’ despite the known repercussions.
Not so with the police. The power imbalance, uncertainty in outcome, and lack of social norms associated with an unexpected police encounter can turn even the well-mannered, law-abiding Continue reading
MCL 750.227b – Carrying or possessing firearm when committing or attempting to commit felony.
Felony Firearm is one of the most severe criminal statutes in the Michigan Penal Code. Although the breadth of this law is noteworthy, the real muscle behind the statute is the penalty. Felony Firearm commands a sentencing double-whammy, carrying a mandatory two-year prison term served consecutively to any prison/jail sentence imposed for the conviction of the predicate offense. Furthermore, Felony Firearm convicts are precluded from participation in probation, parole, and MDOC boot camp (which provides an alternative to incarceration for many felons who receive a prison sentence of three years or less).
Given this heavy penalty, a Felony Firearm charge is often used as a bludgeon by prosecutors to force plea bargains in otherwise tryable cases. This is due in part to the fact that Felony Firearm is a strict liability offense. Not only is actual use of the firearm unnecessary to prove guilt, but Continue reading
The refusal by Pennsylvania’s Attorney General to defend the state’s gay marriage ban is being celebrated as another LGBT legal victory. However, the non-enforcement of democratically enacted marriage laws is not a long-term solution for marriage equality advocates.
Because these Zombie Laws are still on the books, they can be revived in a number of ways. First, the make-up of the Supreme Court can and will change, potentially putting the recent Perry and Windsor holdings at risk. Second, future state officials (e.g. successors to CA Gov. Jerry Brown) could choose to defend the ‘unconstitutional’ laws in Court. Third, state legislators could amend state laws to allow enforcement of gay marriage bans by other legal mechanisms (e.g. by changing ‘standing’ requirements or limiting the discretion of state officials in these types of cases). Any one of these changes could result in bringing same-sex marriage bans back to life.
In California, these possibilities may be unlikely. However, overturning Proposition 8 would also provide an important symbolic victory. Democratically enacted laws, particularly votes by referendum, demonstrate a level of social and moral approval (or disapproval) that judicially enforced laws do not. In 50 years, will LGBT supporters in California be content explaining to their grandchildren that same-sex marriages are still ‘technically’ banned by the state? I doubt it.
It must be stated that putting another marriage ‘Prop’ on the California ballot is politically risky for the LGBT crowd. Because same-sex marriages are now legal in the state, voter enthusiasm for such an initiative could suffer while Prop 8 supporters would likely be able to sustain voter turnout in the form of a ‘protest vote’. Nevertheless, the strategic ‘compromise’ made by California’s officials to legalize same-sex marriage in that state ought to be insufficient legal precedent for the marriage equality movement.
In the movie Zombieland, the protagonist recommends always shooting the undead twice to insure survival (Rule #2 – The Double-Tap).
The U.S. Supreme Court has fired the first shot into Proposition 8. California voters should kill it once and for all.
Note: This post was reprinted with permission from the law firm Halfon Legal.
Anyone who has had a confrontation or other adversarial contact with police understands the frustration in dealing with this power imbalance. First, any refusal to cooperate completely with police orders (whether legal or not) can lead to an arrest or worse. Second, if there is ever a disagreement over the facts of such a confrontation, Courts will typically take the word of police officers over the word of a citizen/arrestee. Third, police agencies have complete control over the storage of recording equipment (such as in-car video) used in prosecutions and other legal proceeding.
In many cases where a criminal defendant claims that the police violated their constitutional rights, the in-car recordings of the arrest are destroyed (“per internal policies”) before a copy can be requested.
However, the spread of smartphones and other technology has armed citizens with a valuable tool to address this power imbalance. All citizens should be aware of their right to document interactions with law enforcement. In addition, anyone who is concerned about police abuses should have the basic technological know-how to create and preserve such a recording.
The Right to Record may be especially valuable in the context of a traffic stop where police often Continue reading
Following another report on the exploding prison population, this time regarding elderly inmates, I submit this appeal to all reporters, bloggers and citizens to immediately stop using the misnomer “Prison Reform” and to the more appropriate label “Criminal Law Reform.”
Prisons are competent at accomplishing their primary task–i.e. preventing prisoner escape. The policy problem that creates overcrowding is the number and breadth of criminal statutes and their attendant penalties.
Like all other laws, criminal statutes are drafted with the help of lobbyists–in this case, prosecutors, police unions, and prison unions. These groups have a virtual monopoly on the criminal law-making process in most states. Accordingly, criminal statutes over the past 10-25 years have become far more broad, covering a wider range of activity, and eliminating many of the “technicalities” that frustrate prosecutors.
Because criminal laws are rarely repealed, this allows prosecutors virtually unlimited discretion in the charging faze of the criminal process. For one example among thousands, in my home state of Michigan, any basic misdemeanor retail fraud (e.g. a kid stealing a candy bar from the grocery store) can be charged as the felony “Larceny from a Building”!?!?
Most reporting on this subject focuses on harsh sentences for non-violent offenders (often in the form of mandatory minimums). However, as the article above illuminates, there is also a need to re-evaluate laws and sentences for violent offenders. The likelihood of violent crime by males decreases significantly after age 24 to the point where violent crime by elderly males is statistically insignificant. Imprisoning 55-year-old men for crimes in their 20′s is questionable at best, particularly with modern access to other enforcement technologies like GPS tethers that can track parolees. This is not simply an issue of budgetary constraints. It has to do with the a basic civil issue–the proportionality of, and logic behind, all criminal sanctions.
I realize this is an unpopular if not politically impractical, if not impossible issue to remedy. However, it is still essential that we address this situation in a thoughtful and reasoned way.
MCL 752.796 – Use of computer program, computer, computer system, or computer network to commit crime.
I had a client recently charged with this doozy of a “crime”.
The Michigan statute provides as follows:
(1) A person shall not use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime.
(2) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate this section, including the underlying offense.
(3) This section applies regardless of whether the person is convicted of committing, attempting to commit, conspiring to commit, or soliciting another person to commit the underlying offense.
Put simply, if a computer is used in the commission of any crime, a Defendant is subject to double the criminal sanctions of the underlying offense. This breadth of this Michigan statute is unusual and may be completely unique in American law.
The statute is particularly expansive by the definition of ‘computer’ which includes Continue reading
Last week, Glenn Greenwald wrote a provocative post questioning whether the Woolwich murder of a British soldier was properly labeled as an act of terrorism. The article naturally received some harsh backlash, most notably from Andrew Sullivan whose criticism was sufficiently irksome to Greenwald that he wrote a follow-up post on the topic.
In my opinion, the two articles should be read together as the second post flushes out what I believe is Greenwald’s ultimate argument—that the definition/application of the word terrorism is so ambiguous and open to political manipulation that it has no functional value in our discourse on current events (and may also have a destructive influence on constructing western military policy).
Greenwald does not state this thesis explicitly but comes very close in saying: Continue reading
These are strange days in the fight against terrorism.
Last Wednesday, it was reported that Ibragim Todashev, a suspected accomplice of Tamerlan Tsarnaev in a 2011 triple murder, was shot and killed during an interview with state and federal authorities. Considering the media frenzy that surrounded the Boston bombing and manhunt barely one month ago, it surprising how little attention this story has received.
Initial reports of the killing sounded like they were ripped from an episode of TV’s Justified.
Obama is taking a beating from some racially-conscious bloggers following his Morehouse commencement speech.
Yesterday, we confronted conservatives for failing to appreciate the President’s rhetoric (or lack thereof) on race. Considering the backlash to the speech, I thought some additional reflection was in order.
It is easy to forget (and important to remember) that world leaders, movie stars, and athletes, are actual human beings. They have childhood nightmares that they vividly remember, memories of awful middle school indignities that still make them cringe, and irrational personal insecurities which they will never overcome. We cannot know or understand all of the critical experiences that shaped Obama the man. But we must at least consider the possibility that he is viscerally uncomfortable Continue reading