Saturday, December 8, 2012

Cool Chicks from History,, posted the following Washington Post article on Tumblr. When I read the piece two things struck me. 
First, society has come a long way from the protective paternalism demonstrated here.  Men imposed their notions of protecting women by shielding them from obvious facts. Those were the days when such things were not discussed. The editor of the Honolulu-Star Bulletin did not publish the article because it might further frighten the women of Honolulu. He is oblivious to the reality that humans communicate, and for a newspaper editor that is irony. Those women were already finding a voice and sharing their common experiences. Having their story published would have given cohesion to their initiation to war, serving to make permanent the record of events from their perspective.
Second, at the end of the article the author, Elizabeth McIntosh, told another story, that of the women who had known war, World War I. Those women remained prepared against the day when terror came calling. They were able to jump right in and assist in the war effort. Why, I wonder, didn't the editor give the reporter instructions to expand on that effort?
Here is the link to the video that accompanied the article:
Here is the link to the article:

Thursday, December 6, 2012


This piece was originally written for publication by a local newspaper.  The editor of that paper had invited me to write from a progressive perspective.  Unfortunately, he had a habit of forgetting to publish my work.  I withdrew permission for that paper or any of its affiliated papers to publish my work.

You probably saw the overly simplistic ad sponsored by the Roman Catholic Diocese of Saint Louis demagoging the mandate that employers provide their female employees with a birth control option.
The first woman said: “You wouldn’t force an atheist to buy a Bible.  It’s that simple.” Then the second, “You wouldn’t force a vegetarian to buy you a hamburger. It’s that simple.” Finally the last intones  “Why, then, would you ask a Catholic employer to purchase your birth control?”
It is not that simple. No one is asking the Catholic Church, operating as a Church, to provide female employees with birth control.  The Church wants to be empire within the Republic.  By that I mean it wants not only to be the Church, but the dominant force in the hospital industry, and its own insurance company.
There is a long tradition of Catholic Hospitals, a good tradition.  And we are no longer in the age where nuns man the wards and work for nothing.  Today's Catholic Hospitals are modern facilities competing successfully in the marketplace.
Across the nation Corporate Healthcare is the template for Catholic Healthcare.  Wealthy Catholic systems purchase smaller hospitals, often to extend health services to the less fortunate, requiring Catholic standards regarding reproductive rights be enforced by secular institutions.  This imposes Catholic theology on institutions and employees that do not share Catholic beliefs.  In this respect the Catholic Church is trying to do an end run around the First Amendment rights of others.
As a practical matter strict bans on birth control and choice have not always worked.  The Catholic part of the equation has made arrangements for physicians to lease a floor of the hospital with a separate elevator entrance so that women had full access to their health care choices. Creating this Chinese Wall did not seem to violate Catholic religious liberty, as long as the revenue continued flowing.
Self-insurance complicates the Bishop's gambit to extend the cloak of religious liberty to traditional secular activities.  It also tossed a wrench into the compromise forged by the White House with the Catholic Church.  That compromise tried using the same Chinese Wall device permitting Catholic Hospitals to sidestep full access to women's health care by shifting the burden to a third party.  But the rub is that the insurance company is now the Catholic Church.
At the heart of the dispute is the definition of a religious employer.  Here it is:
Group health plans sponsored by certain religious employers, and group health insurance coverage in connection with such plans, are exempt from the requirement to cover contraceptive service.  A religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under Internal Revenue Code section 6033 (a)(1) and section 6033 (a)(3)(A)(i) or (iii).  45 C.F.R. §147.130(a)(1)(iv)(B).  See the Federal Register Notice:  Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act  (  The Bishops want a broader definition.
The dilemma with the Bishops' gambit is that push eventually leads to shove.  Ultimately the Courts are going to paint a bright line that says when the Church acts as a Church it has full First Amendment protection.  When the Church acts transitionally as a business those protections begin to abate.  As the Church fully engages in traditionally non-religious commercial activity, the protections of the First Amendment, as to religious liberty, do not attach.
The Bishops are overreaching.



Saturday, December 1, 2012

With thanks to Real Clear Politics, for their "create your own map" feature, see,, I wondered what would it be like if the result of the Presidential Campaign looked like the Powerball Map.  First, here is the map.

To begin with there are 538 Electoral College votes.  How, you ask did we get that number.  It is simple, there are 435 Members of Congress and 100 Senators.  Add those two numbers together and you get 535.  The three missing votes come from the District of Columbia.  As you remember, the minimum number of votes a state can have in the Congress is 3.  Each state gets at least 1 Representative to the House and 2 Senators.  Missing from this map are the U.S. Virgin Islands, which shows up on the Powerball Map but since they are not a state not on the Electoral College Map. 
What would be the circumstances that would cause Hawaii, California, Nevada, Utah, and Wyoming to join with two states from the Heart of Dixie, Mississippi and Alabama and be the losers in the Electoral College?  This is a big loss because the winner gets 449 votes to the loser's 89; And a victory of 449 votes is a landslide.
History shows us big wins (or losses depending on perspective).  In 1964 LBJ beat Goldwater by 486 to 52.  Goldwater was painted as an extremist and carried only Arizona, the Gulf States of Louisiana, Mississippi, Alabama, and the old Dixie States of Georgia and South Carolina.
In 1972 Tricky Dick Nixon rode his secret plan to end the War in Vietnam to a landslide victory over McGovern, who won only Massachusetts and the District of Columbia.  That margin was 520 to 17.  Nixon did not finish the term, he resigned in disgrace on August 8, 1974. 
Ronald Reagan swept into a 1980 victory with a populist conservative message and tough talk against Iran, who was holding Americans taken during a siege of our embassy.  Reagan defeated Carter by 489 to 49, and the hostages were released on inauguration day. 
Carter got more electoral college votes against Reagan than did his Vice President who lost four years later by a margin of 525 to 13. Regan easily handled Mondale in the Presidential Debates, sexism may have played a role as Geraldine Ferraro was the Democratic Party's choice for Veep, and the negatives in the first term didn't stick to Reagan who was called the "Teflon President". Mondale won his home state of Minnesota and the District of Columbia.
George H. W. Bush beat Dukakis in 1988 by 426 to 111 painting the Massachusetts Governor as a crime coddling liberal.  Dukakis carried Washington, Oregon, Minnesota, Iowa, Wisconsin, West Virginia, New York, Massachusetts, Rhode Island, Hawaii, and the District of Columbia.  Since 1988 no candidate has topped the 400 electoral vote count. 
Winning by large margins is not always good.  In a college level Political Science course, years ago, Southwest Missouri State's Professor Alice Fleetwood Bartee suggested the best wins are the closest wins.  Employing the theory of Occam's Razor, otherwise called the law of economy, she taught that winning the simple majority puts less pressure on the Administration to satisfy competing pressures.  So winning a great majority means that the President has to deliver on promises to competing groups, which often spells doom for reelection.
In 1928 Republican Herbert C. Hoover beat the Democratic candidate Alfred E. Smith by 444 to 87.  Smith carried Massachusetts, Arkansas, Louisiana, Mississippi, Alabama, Georgia, and South Carolina.
Four years later FDR trounced Hoover 472 to 59.  Of course there was enormous economic pain following the Wall Street Stock Market Crash of 1929 and the onset of the Great Depression.  In 1936 FDR continued on to another legendary win beating Kansan Alf Landon 523 to 8. Republicans started to make inroads in 1940 win they ran Wendell L. Willke, who only lost to FDR by 449 to 82.  In 1944 FDR again topped the 400 electoral college vote mark besting Thomas E. Dewey 432 to 99.  FDR died April 12, 1945, having won more electoral college votes than anyone else in history.
The 400 vote total didn't get topped until Ike ran in 1952.  The man who commanded the Allied Forces in Europe in World War II beat Adlai Stephenson by 442 to 89.  Four years late he did it again 457 to 73.



Monday, November 12, 2012

RULE # 1: Make Googling Easy [if you want to be found]

Here is an observation for the tech savvy political conscious among us.  In a rush to get to the home page of the Kansas Democratic Party I Googled "KDP".  I did not find the Kansas Democratic Party until page 11 of that search.  What, you ask, did I discover?  Among the finds are:
Kindle Direct Publishing, Kappa Delta Pi, the Kurdistan Democratic Party (close but no cigar), KDP Studio, KDP Asset Management, the Killer Dowel Pin, Kaltura Dynamic Player, KDP, Potassium dihydrogen phosphate, the Urban Dictionary's Know Dis Piece, a Kidney Disease Program, and the Kent Downtown Partnership (Kent, Washington).
Finally on page 10 of the Google search there was reference to the remarks of the  Chair of the KDP.  This was not the KDP link for which I was searching.  At best the first mention of KDP came in a collateral form. On page 20 the link to the Kentucky Democratic Party appeared.
After 50 pages of persisting through the various KDPs I concluded that you can't get to the Kansas Democratic Party by Googling KDP.  In the cyber world grammar is a lost art and spelling a casualty of convenience; speed and instant gratification are de rigueur. 
The KDP, meaning the Kansas Democratic Party, needs to refine its cyber brand.
Now I forget what is was that I wanted to know from the Kansas Democratic Party.  I am going to check out the Kurdistan Democratic Party instead.

Wednesday, October 24, 2012

How Loss of Title X Funding nearly resulted in 49 Abortions.

In March the Board of County Commissioners (BOCC) rejected Title X funding. The Republic reported "[T]he reasoning behind their decision is that taxpayer money shouldn’t be spent to hand out contraceptives."  Then the BOCC accepted, from Miami County women, an amount equal to the grant.  The County matched those funds by half, just as they would have matched the grant money.

Arithmetic and numbers is important to understanding what the BOCC did.  There has been confusion about the amount of the grant.  The grant request was for $30,000.  The grant award was $9,000.  The county has always matched half, or $4,500.  If the grant awarded was $20,000 the match would be $10,000.  That's the way it works.

Title X serves the County's Family Planning Clinic.  A volunteer for the Health Department prepared a report which the BOCC had prior to rejecting Title X funds.  That reports says that 54% the women using this program are below the poverty line and 20% are below 150% of that standard.  77% of these women, 116, have no insurance. 

What could go wrong?  Our County does not have a safety net clinic and private physicians cannot afford to absorb the costs of health care on a pro bono basis.  Women with limited means tend to buy food, pay rent, or take care of necessities instead of spending on their health care.  Missed infections can lead to costly emergency room visits, increasing hospital costs for everyone.

The report made a statistical analysis about the impact of denying Title X funds.  According to the report 85% of women with regular sexual activity will become pregnant within one year.  That means these 116 women will have 98 pregnancies. 

What happens to those 98 pregnancies?  Following national trends 49 of them will result in live births and 49 of them will be terminated.  I asked if those 49 terminations included miscarriages or spontaneous abortions.  The answer was no.  Denying Title X created the circumstance for 49 abortions.  Clearly the BOCC didn't think this through.

Of the remaining 49 pregnancies 30 result in normal vaginal deliveries and 19 require caesarian section.  Hospital costs for uncomplicated deliveries are less than $9,000.  That is $270,000 for 30 women.  Hospital costs for c-sections are more than $15,000, or at least $285,000 for 19 women.  That is over a half a million dollars.  We have to ask ourselves what is more cost efficient, matching $4,500 for the Title X grant or covering $555,000 in hospital costs?

Uninsured women tend to receive no prenatal care, putting both mom and baby at risk for additional health issues.  The baby will likely be taken to a special care nursery. Women lacking prenatal care do not get the counseling Title X provides.  They aren't alerted to the importance of stopping smoking, drinking, taking prescription drugs, or other drugs.  There is no opportunity to tell them to avoid exposure to certain environmental or chemical toxins.

In 2010 the health department Title X grant was $8,398.00 The County matched half of that or $4,199 for salaries.  The clinic earned $6,455.58 in fees.  Expenses that year were $10,883.90.  The Family Planning Clinic was in the black by nearly $4,000.

We did not see 49 abortions this year, or escalating rates of sexually transmitted diseases, or a disruption of adult vaccinations because Miami County women stepped up.  The October mammogram clinic is funded by Saint Luke's Hospital, thanks Episcopalians.

What will we do next year?  Rely on the generosity of women or see the BOCC make better choices? 




Saturday, October 13, 2012

Report to Miami County, Kansas on Impact of Gutting Title X Funding

This is what the Board of County Commissioners [BOCC] knew, or should have known, before voting to gut Title X funding for Miami County, Kansas.  And yes, when the report talks about "terminated pregnancies" it means abortions, not spontaneous miscarriages.  The economic impact on the county is catastrophic and the humanitarian impact on lower income women and children is despicable.

Wednesday, October 3, 2012

Inspired by a Letter to the Editor

Last week the Miami County Republic ran a guest column I wrote called "Fairness needs to be the focal point during this election season".  See,  In this piece I skewered Paul Ryan as being an adherent of Ayn Rand's godless philosophy, the Romney/Ryan tax plan, the Browback tax plan, and certain (anti-abortion) single issue voters.
Today's Republic contains my first letter to the editor, not from me but about me.  I am delighted.  Public Opinion needs to be a two way street and I am grateful for the lady who sat down and put pen to paper to tell us how I made her feel. 
This lady's opening volley is that "we still live in the greatest nation, for now anyway".   That puzzled me, I could have seen something about politics making strange bedfellows or challenging my fuzzy math on tax policy.  Since I didn't take a stand on American greatness I went ahead and took a look at it.
Fortunately, the good people at the Pew Institute did all the work,  It seems that Americans don't all agree that we are number one.  The differences spread out over a range of demographic categories.
First is how we view that question of greatness when you sort us by our ages.  Younger Americans are less likely to say that America is the greatest nation. 

Next Pew looked at how we answer that question based on our politics.  The most conservative are most likely to agree that America is the greatest nation on earth.  At the other end of the spectrum the most liberal are most likely to disagree with the statement.  Across the board 38% of all Americans say America is the greatest, 53% say we are among the world's great nations, and 8% say there are other nations greater than America.

The lady who wrote the letter then said something about which she and I will have to agree to disagree.  She thinks most voters are single issue voters looking out for themselves first. 

We may be talking about apples and oranges.  Single issue voters will only vote for candidates who agree with them on that issue.  For these voters their issue is a litmus test. 

Categorically, we know that all voters are not single issue voters.  For insight I visited an article published by the famous Pollsters at Gallup.  In an article written about single issue voters in the race between Kerry and Bush, I found the example I was looking for.  The article was written by Lydia Saad, a senior Gallup Poll Editor.  You can find the entire article online at

My position is that the anti-abortion voters whose sole criteria in voting is to select anti-abortion candidates abdicate their power over all other issues.  What they get are legislators who wreck the environment, who defund our schools, who manipulate the tax code for the very rich, and do many other things that the voters would not approve if they sat down and thought about the votes of their legislators.  Instead these voters have become accustomed to being told what they want to hear.  They do not require accountability from their elected officials.
In Kansas the Romney/Ryan tax plan is not just hypothetical it is called the Brownback tax fiasco.  In Kansas those earning $25,000 or less will see a 5000% tax hike next year.  Back to the point, Kansans earning $25,000 or less, cannot afford to vote for their anti-abortion candidate, since those are the legislators who voted to increase their taxes.
For the record, I never said anything about gay marriage, nor do I feel obliged to respond to her rant on the topic.  You may note the "equality on board" logo on this Blog's page and know that I stand in solidarity with those who for too long have been denied equal protection of the law.  One does not need to be aggrieved by the injustice to be offended by it.
The letter's final valid point is well taken.  The lady suggested that voters pray before going to the polls.  That's good, but here she and I will have to again agree to disagree.  You see it is equally important to think before you vote.  Single issue voters don't do this.  Single issue voters get the government they deserve because they have squandered the power of the ballot box.



Thursday, June 14, 2012


When Republicans are talking about their Jobs Bills this is what they really mean:

 #1. H.R. 872, the Reducing Regulatory Burdens Act of 2011, is a jobs bill if, and only if, the Republican jobs plan is to develop jobs in oncology. This bill gets rid of the alleged job killing regulations regulating pesticides entering our streams and lakes. This bill says it is okay to use these pesticides without a permit. The problem began with citizen lawsuits and was exacerbated by the Environmental Protection Agency, under President George W. Bush, issuing a rule that said no permits were needed to use pesticides in, near, or over our lakes and streams.

In National Cotton Council v. EPA (553 F.3d 927), a consolidated case from the Sixth Circuit, that court concluded that the EPA's final rule, not requiring permits for the use of pesticides capable of entering the waterways, was not a reasonable interpretation of the Clean Water Act's permitting requirements. The court rejected EPA's contention that, when pesticides are applied over, into, or near waterbodies to control pests, they are not considered pollutants as long as they comply with FIFRA, and held that NPDES permits are required for all pesticide applications that may leave a residue in water. This bill wants to overturn National Cotton Council. Note to House Republicans: Americans do not want poisons in the waters we drink, bathe, wash dishes, and do laundry. 

#2. H.R. 910, the Energy Tax Prevention Act, is another amazing bill from the House Republican Conference that will give America jobs in oncology. The bill is falsely premised on the notion that greenhouse gases do not adversely affect the environment. This bill clears the way for big polluters to foul the air we breathe.

Respected and notable scientific organization, including the National Academy of Sciences, the American Association for the Advancement of Science, the American Geophysical Union, the American Meteorological Society, the U.S. Global Change Research Program, as well as the Intergovernmental Panel on Climate Change, are all in agreement that manmade greenhouse gases do contribute to climate change, and that these impacts can be mitigated through policy to curb these emissions.

 Additionally, many of the Nation's top public health advocacy groups, including the American Lung Association and the American Public Health Association, as well as leading civil rights groups, such as the NAACP and the Environmental Law and Poverty Center, have all come out strongly against this bill saying that it would leave our most vulnerable citizens and our most vulnerable communities unprotected if this bill were to become law.

 #3. H. J. Res. 37, a Resolution of disapproval regarding the FCC’s regulation of the Internet and broadband industry practices. This Resolution expresses Congress's disapproval of the rule adopted by the Federal Communications Commission (FCC) on December 21, 2010, relating to preserving the open Internet and broadband industry practices. Prohibits such rule from having any force or effect. Republicans want to turn the clock back to the days when behemoth companies monopolized the internet marketplace. Do you remember 50¢ a minute dial up service using a modem? 

This is a Republican effort to shut down the one job-creating engine that has driven our economy over the last 15 years, since we opened up the competition through legislation. The GOP wants to shut it down. Fifty percent of the growth of our economy in the 1990s was in the internet sector, because we had competition.

#4. H.R. 2018. the Clean Water Cooperative Federalism Act of 2011, is another attack by the Republican Conference on the Clean Water Act. Under this legislation, the EPA would be prohibited from recommending stricter discharge standards for toxic pollutants such as lead or mercury, even if the protection of human health is at stake, unless the State consents to such changes. In my view, this policy does not move our Nation forward, but rather reverses our direction and moves our Nation back 40 years to before the enactment of the Clean Water Act. Polluted water means more cancer, more cancer means more jobs in oncology.

 #5. H.R. 1315, the Consumer Financial Protection & Soundness Improvement Act, is an affront to Americans. Before Senate Republicans will even allow the President's nominee as Chairman of the Consumer Financial Protection Bureau, House Republicans want to gut the power of that office. The President's nominee is Richard Cordray of Ohio. His nomination is in the process of being returned to the President under Rule XXXI, paragraph 6 of the Standing Rules of the Senate at sine die adjournment of the 112th Congress, 1st session. That will trigger the President's power to make a recess appointment of Mr. Cordray.

President William J. Clinton made 139 recess appointments, 95 to full-time positions. President George W. Bush made 171 recess appointments, of which 99 were to full-time positions.2 As of December 8, 2011, President Barack Obama had made 28 recess appointments, all to full-time positions.

#6. H.R. 2587, Protecting Jobs From Government Interference Act, is another example of Republicans siding against working people by taking away the rights of workers under the National Labor Relations Act.

H.R. 2587 amends the National Labor Relations Act to deny the National Labor Relations Board (NLRB) any power to: (1) order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment; (2) rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or employer who shall be engaged in production or other business operations; or (3) require any employer to make an initial or additional investment at a particular plant, facility, or location. And it reaches all complaints already in the system. It applies the amendment made by this Act to any complaint for which a final adjudication by the NLRB has not been made by the date of enactment. The GOP wants Americans to have the right to work for less and less.

#7. H.R. 2401, the Transparency In Regulatory Analysis Of Impacts On The Nation (the TRAIN Act) is another Republican attack on the Clean Air Act. The TRAIN Act, will block and indefinitely delay two EPA rules that reduce pollution from power plants: the Mercury and Air Toxics Rule and the Cross-State Air Pollution Rule. These rules are critical to protecting the public health. Each year these rules will prevent tens of thousands of premature deaths, tens of thousands of heart attacks, and hundreds of thousands of asthma attacks. They will also prevent over 2 million lost workdays. If this legislation is enacted, these public health benefits will be lost, and more babies will be born with birth defects and learning disabilities.

The Whitfield amendment will eviscerate the law's ability to require power plants to install modern pollution controls. EPA Administrator Lisa Jackson said that if the Whitfield amendment is enacted, EPA will never be able to issue a rule to prevent emissions from power plants in one State from polluting the air in a downwind State. She also said that the amendment could destroy the agency's ability to ever reduce toxic mercury emissions from power plants.

 The Latta amendment is even worse. It will reverse 40 years of clean air policy, repealing the health-based standards that are at the heart of the Clean Air Act. The Latta amendment would allow our national goals for clean air to be determined by corporate profits, not public health.

Until George W. Bush took over America managed to both clean up the environment and have a robust economy. We can have jobs without pollution. These radical amendments were never examined in hearings or debated in the Energy and Commerce Committee or in any other committee. Members were asked to vote on major changes to the Clean Air Act without any idea of their terrible impact on air quality and public health. And those amendments are in this bill, this very bad bill.

 #8. H.R. 2681, is the Cement Sector Regulatory Relief Act. The Republicans again say if we want jobs, we have to have pollution. Only, where are the jobs? Prior to passage of H.R. 2681 the House voted 136 times this Congress to block action to address climate change, to halt efforts to reduce air and water pollution, to undermine protections for public lands in coastal areas, and to weaken the protections of the environment in other ways as well. This is the most anti-environment Congress in history.

Last month, the House passed radical legislation to turn back 40 years of progress towards clean air. That bill will nullify pollution control requirements on power plants--the largest source of toxic mercury pollution in the country--and weaken our national clean air goals by basing them on corporate profits, not on public health.

With H.R. 2681 the House continues its frontal assault on public health and the environment. This bill would gut Clean Air Act provisions protecting American families from toxic air pollutants. If this bill is enacted, there will be more cases of cancer, birth defects, and brain damage. The ability of our children to think and learn will be impaired because of their exposure to mercury and other dangerous air pollutants.

In 1990, the Congress, on a bipartisan basis, voted to protect the public from these toxic pollutants. The law directed EPA to set standards requiring the use of a Maximum Achievable Control Technology to control emissions of mercury, arsenic, dioxin, PCBs, and other toxic emissions. This approach has worked well. Industrial emissions of carcinogens and other highly toxic chemicals have been reduced by 1.7 million tons each year.

EPA has reduced pollution from dozens of industrial sectors. More than 100 categories of sources have been required to cut their pollution, and this has delivered major public health benefits to this Nation. But a large source of categories still have not been required to control toxic air pollution due to delays and litigation.

H.R. 2681 would nullify and indefinitely delay EPA's efforts to reduce toxic emissions from cement plants. The bill says that EPA cannot require any pollution reduction from any cement plant for at least 5 years

#9. H.R. 2250, the EPA Regulatory Relief Act, is another bill paving the way for more environmental pollution. This bill provides that the following rules shall have no force or effect and shall be treated as though they had never taken effect: (1) the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; (2) the National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers; (3) the Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units; and (4) Identification of Non-Hazardous Secondary Materials That are Solid Waste. There is the GOP's grand jobs bills plan, giving no force or effect to EPA rules and regulations so that corporate polluters can dump toxic matter into the air we breathe, the water we drink, and the earth upon which we live.

#10. H.R. 2273, the Coal Residuals Reuse and Management Act is a bill that blocks the EPA from issuing science-based standards to manage the disposal of coal ash. The Republican majority rejected language, which had the support of a number of utilities, which would have protected EPA's authority to issue health-based standards under the Clean Water Act.

House Republicans are attacking the EPA and not working on jobs. This bill does nothing to regulate coal ash in a way that protects the environment or public health. This bill wants to give regulatory power to States, but there is no national minimum standard for State permitting programs in this bill.

The municipal solid waste standards used by this dangerous piece of legislation are inadequate to protect our communities from dangerous toxins. Many of the toxins found in coal residuals are simply dangerous to public health and are known cancer-causing agents. Just a few of the toxins found in coal ash include arsenic, chromium, lead, mercury, nickel, and that's not the whole list.

#11. H.R. 1904, the Southeast Arizona Resource Utilization & Conservation Act, simply put this bill gives away National Forest land to the Resolution Copper Corporation. There could be between $2 billion to $7 billion worth of copper on this land. So you may ask, what is the problem. The problem is trading with the enemy

A controlling 55 percent of Resolution Copper's shares are owned by the giant mining conglomerate Rio Tinto. Rio Tinto owns 65 percent of the world's largest open pit uranium mine, the Rossing Mine, in Namibia. Their second-largest partner in the Rossing Uranium Mine, with a 15 percent stake and two people on the board of directors, is the government of Iran.

Democrats offered a motion to recommit with instructions, called the Deutch Amendment, to require that the benefit of our nation's copper resources will not accrue to Iran. That motion failed. This bill is reckless because the uranium from the mine in Namibia is the stuff that Iran is converting into nuclear grade material. 

The U.N. Security Council has six times approved resolutions condemning Iran for its violations of the Nuclear Nonproliferation Treaty, and this House has twice enacted strong Iran nuclear sanctions. Yet Rio Tinto is in partnership with the Iranian government to mine uranium. This bill tells Rio Tinto to disregard the U.N. sanctions and to disregard the sanctions of U.S. law.

What the Deutch amendment said is that if you want to do business with America, you need to stop doing business with Iran and Mahmoud Ahmadinejad. Under this amendment, as soon as Rio Tinto severs its partnership with Iran and Ahmadinejad, Rio Tinto's Resolution Copper affiliate can proceed to take title to these very valuable Federal lands in Arizona in the United States of America.

H.R. 1904 undermines our nuclear nonproliferation policy.

#12. H.R. 2433, the Veterans Opportunity to Work Act of 2011, is not really a jobs bill, it is a retraining bill. Who pays for this retraining? One group of veterans is taxed to pay the freight on the new program.

Representative Bob Filner [D. CA-51] the ranking member of the Committee on Veterans Affairs, described H.R. 2433, as it went through the committee process, as a bill that did not create jobs, but actually taxed veterans. Republicans have taken a pledge not to vote for anything that taxed anybody. H.R. 2433 bill taxes veterans. Filner says: "It actually taxes one group of veterans to help some other group of veterans. And I still feel the same way about the bill as it came through the process. Now I support all programs that will help veterans and improve their lives, and I know this bill is called a jobs bill. But, it is merely a retraining bill."

If there is any group of Americans who don't deserve to be taxed for the training that might get them a job it is our veterans. 

#13. H.R. 1230, is the Restarting American Offshore Leasing Now Act, is the legislative response from House Republicans to the "Drill Baby Drill" chant of the 2008 Republican National Convention. House Republicans learned nothing from the Deepwater Horizon Gulf Oil Spill. Their bill does not address the lax regulatory relationship between the Department of the Interior and the oil industry. 

The Obama administration is already moving forward to hold these lease sales in the Gulf later this year and early next year, and they are going to be more responsible in assessing the environmental impact of offshore drilling. Even the Congressional Budget Office analysis of H.R. 1230 concludes, "CBO estimates that implementing the bill would have no significant impact on proceeds from lease sales in the Gulf of Mexico because the proposed schedule is similar to the plan included in the DOI's budget for 2011".

The other big problem with H.R. is that it requires the sale of offshore oil lease drilling permits off the shore of Virginia. 78% of that area is utilized by our Armed Forces as a training area. The military says that offshore oil rigs will impede readiness by impeding training. The balance of that area is home to major shipping lanes, making the area unacceptable as a site for offshore drilling.

 #14. H.R. 1229, the Putting the Gulf of Mexico Back to Work Act, is what the Ranking Member of the Subcommittee on Energy and Mineral Resources, Representative Russ Holt [D. NJ-12] calls one of the "Amnesia Acts" because the Republicans act as if Gulf Oil Spill never happened. 

Only 1 year and 19 days before H.R. 1229 came to the floor of the House, the Deepwater Horizon oil rig exploded killing 11 workers and creating economic and environmental havoc. For 87 days following the explosion, more than 4 million barrels of oil spewed from the blown-out Macondo well, coating nearly 1,000 miles of gulf coastline and temporarily closing over 88 square miles of some of the Nation's most productive fishing grounds.

Holt reminds us that "this Congress has not enacted a single legislative reform to improve the safety of offshore drilling. Instead, the majority now brings forward in the name of spurious claims a bill to encourage more domestic offshore drilling without applying the lessons learned from the gulf blowout. With the spurious claim that more domestic offshore drilling will lower gas prices, they claim that we have to grease the skids, we have to open the doors, we have to give further breaks to the oil companies."

H.R. 1229 imposes artificial and arbitrary deadlines on the Department of the Interior to approve permits to drill. Specifically, this legislation requires the Department to act on a permit to drill within 30 days. After 60 days, whether or not--whether or not, the safety and environmental review has been completed by the Interior Department, the drilling application would be deemed approved.

Offshore drilling in U.S. waters, as determined by the spill commission, the bipartisan, independent spill commission, is four times more deadly than in other parts of the world prior to the Deepwater Horizon tragedy. It was four times more deadly to drill in the gulf by the same companies than to drill, for example, in the North Sea, hardly a comfortable environment. Under this bill, we could actually have less careful oversight and review of offshore drilling than we had before the Deepwater Horizon disaster.

This legislation issues a blanket extension of existing leases. In contrast to this across-the-board approach, the Department is working on a case-by-case basis to extend existing leases affected by the temporary suspension of new drilling, where such action is warranted, not on a blanket basis but on the basis of the actual facts, of the actual evidence. H.R. 1229 would give a free ride to companies even if their leases are many years from expiring.

Under the George Bush administration, in 2008, the Energy Information Administration said, if all drilling over the entire east coast Continental Shelf were opened up, the effect on oil prices would be "insignificant."

H.R. 1229 also contains language designed to close the doors of the courthouse to citizens who believe that the Federal Government is not complying with the law. Imagine that. Citizens who are trying to be diligent citizens would not be able to make sure that the law is being applied. Citizens from Florida or Alabama would be forced to bring any lawsuits regarding energy projects in the Gulf of Mexico to Louisiana or Texas courts. In addition, H.R. 1229 contains language that would prevent attorneys' fees from being awarded in successful cases--a deterrent if I've ever heard of one. These provisions are aimed at environmental plaintiffs, but will almost certainly impair the legal rights of many other potential plaintiffs, including other oil and gas companies.

Bringing suit will be almost impossible because the bill creates a presumption that the administrative findings and conclusions relating to the challenged federal action or decision are correct. Rebuttal of this presumption is available, but only by the preponderance of the evidence contained in the administrative record. This will have a severe impact on the ability of litigants to develop an evidentiary record.

#15. H.R. 1231, is the Reversing President Obama’s Offshore Moratorium Act, and is the third of what Representative Holt calls the "Amnesia Acts". This bill mandates new leasing off the economically important coastlines of southern California, Alaska, and the entire eastern seaboard, before stronger safeguards can be put in place. It's cynical to claim that more drilling will relieve high gas prices. More drilling only means more profits for the oil industry, not lower costs at the pump.

Oil companies hardly need a boost right now. They're receiving billions of dollars in taxpayer subsidies and reaping record profits.

On top of that, the oil industry is already drilling more than ever before. For example, offshore production has increased by more than a third in the last 2 years, and the gulf produced 1.6 million barrels of oil per day last year, an all-time record. Yet, despite all that drilling, gas prices continue to soar, and the reason is clear: More drilling here in the U.S. has little effect on the global oil market.

Nearly three-quarters of the world's proven oil resources are owned by OPEC nations. Even if we expanded offshore drilling significantly, there wouldn't be an impact on gas prices until 2030; and even then, it would be a matter of just 5 cents a gallon, according to the Energy Information Administration.

#16. H.R. 2021, is the Jobs and Energy Permitting Act, is a huge giveaway to the Big Oil Lobby. The flaws in the legislation include allowing huge increases in air pollution from oil and gas drilling activities by moving the point of measurement from the drill ship to the shore.

This bill of the States to regulate the emissions of support vessels and it sets an arbitrary deadline of 6 months for final agency action on every offshore exploratory drilling permit, no matter the size or complexity of the proposed operations. The EPA Assistant Administrator for Air and Radiation testified before the Energy and Commerce Committee that 6 months is too short to allow for adequate technical analysis, public participation, GPO's PDF and administrative review. Witnesses for the States of California and Delaware agree this wouldn't work for their State programs. Yet these concerns have been ignored.

The legislation eliminates the Environmental Appeals Board from the permitting process, even though it is a cheaper, faster, and more expert substitute for judicial review. And it requires all challenges to air permits to be raised before the Federal Court of Appeals in Washington, D.C., thousands of miles away from the affected communities.

The administration opposes H.R. 2021 because it would curtail the authority of EPA to help ensure that domestic oil production on the Outer Continental Shelf proceeds safely, responsibly, and with opportunities for efficient stakeholder input.

#17. H.R. 1938, the North American-Made Energy Security Act, is yet another attempt by House Republicans, controlled by the Big Oil Lobby, to expedite the Keystone XL pipeline.

The Keystone XL pipeline would carry a sludge made from Canadian tar sands through the middle of America. In doing so, it would raise gas prices, endanger water supplies, and increase carbon emissions; and that's why it should not be approved.

Keystone XL will make us more reliant on the dirtiest source of fuel currently available. On a life-cycle basis, tar sands emit far more carbon pollution than conventional oil--almost 40 percent more by some estimates. That's because it takes huge amounts of energy to take something the consistency of tar, which they mine, and turn it into synthetic oil. We should be reducing our oil dependence and using cleaner fuels, but Keystone is a big step in the wrong direction.

There are many other concerns, including safety. One year after the Kalamazoo River oil pipeline spill 30 miles of the river are still closed. Another massive oil pipeline spill occurred into the Yellowstone River. TransCanada, Keystone XL's owner and operator, has had 12 spills on the first Keystone pipeline in its first year of operation. Keystone One was even shut down by the Department of Transportation as "hazardous to life, property, and the environment.'' The risks from spills are exacerbated with Keystone XL because it is rooted through the Ogallala aquifer, which spans eight States and providing drinking water for 2 million people.

Tuesday, March 27, 2012

The Abortion Cases, a synopsis - before we move forward.

The Abortion Cases

Skinner v. Oklahoma, an Oklahoma case authorizing the sterilization of criminals convicted of felonies equivalent to moral turpitude was struck down.  Procreation is a fundamental right.  Griswold v. Connecticut, is the case that legalized birth control. United States v. Vuitch, involved the statutory interpretation of the District of Columbia's abortion statute.  Eisenstadt v. Baird, is a case that raised the issue of privacy and Equal Protection of the law.  The case centered around a lecture given about a vaginal foam contraceptive.  Under the law the speech was illegal.  A single woman picked up a sample of the contraceptive which was also illegal because the law only permitted married couples from employing contraception.

Roe v. Wade, is the landmark decision legalizing abortions.  It is a well reasoned and well decided case.  The only weakness in Roe is that the it places the law on a collision course with Medical Science.  Roe grants a woman a qualified right to have an abortion while acknowledging the State Interest in preserving fetal life.  That interest is always secondary to the life and the health of the woman seeking the abortion.  Doe v. Bolton, was the companion case to Roe, and involved a Georgia statute containing procedural requirements the Court said violated the Fourteenth Amendment.

Planned Parenthood of Central Missouri v. Danforth, raised the issue of fetal viability. Here the Court ruled that if the fetus can be kept alive, even with medical devices, then that option can be enforced by the State over abortion.  Then the Court said that Missouri could not give the spouse veto power over the wife's decision.  The Court ruled that Missouri could require consent but those conditions did not apply in emergency situations where the mother's life hung in the balance.  Likewise the Court rejected the notion of blanket requirements that the parents of minors be notified of the abortion.  The Court struck down the ban on the most common form of abortion amniocentesis.

Bellotti v. Baird, is another parental notification case. The court struck down this blanket notification law.

Maher v. Roe, Beal v. Doe, Poelker v. Doe are companion cases. Maher v. Roe and Poelker v. Doe each deal with statutes that limited the use of public funds in paying for abortions. These two cases each ask the question if Connecticut, in the Maher case, and the city of Saint Louis, Missouri, in the Poelker case, violated the Equal Protection Clause of the Fourteenth Amendment.  Poverty is not a suspect classification for heightened scrutiny, these states did not need to foot the bill.  The fundamental right recognized in Roe v. Wade was distinguished.  States need not show a compelling state interest in refusing to fund abortions, their statutes must be reasonably related to their policy choice of preferring live birth to abortion.

Beal v. Doe focuses on Title XIX of the Social Security Act requirement  that states participating in the Medicaid program fund the cost of nontherapeutic abortions.  The Court disagreed since when Title XIX passed the Congress abortions had not yet been legalized.

In Harris v. McRae, more challenges were levied at Title XIX based on right to privacy, the Due Process Clause of the Fifth Amendment, or the Religion Clauses of the First Amendment.  This was a challenge to the Hyde Amendment prohibiting the use of federal dollars for abortion. These challenges failed, but barely; the Court reached a 5 to 4 decision.

City of Akron v. Akron Center for Reproductive Health, is another case about the state's elevated interest in the third term of the pregnancy.   The Court reaffirmed the State's interest in health regulation becoming compelling at approximately the end of the first trimester. That compelling state interest in health is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest. The State is obliged to make reasonable efforts limit the effect of its regulations to the period in the trimester during which its health interest is furthered.

In Planned Parenthood Association v. Ashcroft a sharply divided Court struck down part of a Missouri statute while upholding other sections of the law.  Requiring second trimester abortions to be performed only in hospitals was again held unconstitutional.  Missouri's requirement of a second physician and a pathology report were found to be reasonably related to the purpose of the statute.

A Virginia statute requiring abortions to be performed in hospitals was not held to be unconstitutional in Simopoulos v. Virginia.  The exception here was that Virginia licensed not only Hospitals but outpatient surgical centers as well.

Thornburgh v. American College of Obstetricians & Gynecologists, finds another deeply divided Supreme Court delivering a 5 - 4 opinion.  The issue here was informed consent.  The opinion struck down the Pennsylvania law saying Pennsylvania cannot coerce a woman into continuing an unwanted pregnancy.

In Webster v. Reproductive Health Center, the Supreme Court in a fractured decision.  Only Pat II-C, which dealt with public funding was unanimous, the State of Missouri argued the statute only dealt with officials who were responsible for expending funds.  Then the appellees removed their claim making the issue moot.  When there is not controversy it is to find unanimity.

Part II-A dealt with the preamble to the statute which Missouri said was instructive and had no operative effect.  In dissent Associate Justice Blackmun wrote "To the extent that it merely makes "legislative findings without operative effect," as the State argues, it violates the Establishment Clause of the First Amendment."

Chief Justice Rehnquist used Part II-D to assail the strict trimester rule developed in Roe v. Wade.

Part III of the opinion narrowed and restricted Roe v. Wade holding that Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded.  The collision course upon which Roe and medical science has now been noticed by the Court.

In his scathing dissent Blackmun wrote "The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State."

Public funding of family planning under Title X was scrutinized in Rust v. Sullivan.  The challenge in this case was a facial challenge.  A facial challenge applies the inconceivable standard.  It is inconceivable that under any circumstance the statute is constitutional.  This is an extremely high threshold.  The other kind of challenge to the constitutionality of a statute is the as applied challenge.  In an as applied attack the person arguing that the statute is unconstitutional need only demonstrate that under a particular set of circumstances the law is invalid, even if it is valid under other circumstances and for other reasons.  The Court seldom sustains a facial challenge to a federal statute.  State statutes tend not to receive the deference accorded Acts of Congress.

In Rust v. Sullivan, the Secretary of the Department of Health and Human Services developed regulations pursuant to authority conveyed by Title X.  There are three parts to the regulations that were being challenged.  First, a Title X project may not provide counseling concerning the use of abortion as a method of family-planning or provide referral for abortion as a method of family planning. Second, the regulations broadly prohibit a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning. Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities.

The Court found the language of Title X ambiguous. Rehnquist said it was permissible for separate facilities and record keeping be maintained. The Court's majority also rejected, by tiptoeing through a long line of cases, the argument that the rules advanced here violated the First Amendment.  Finally the Court summarily dismissed any claims predicated on denial of a woman's Due Process Rights under the Fifth Amendment.

Associate Justice Harry Blackmun's called the majority's opinion disingenuous. 

Associate Justice Stevens said: "I am convinced that the 1970 Act did not authorize the Secretary to censor the speech of grant recipients or their employees, I would hold the challenged regulations invalid and reverse the judgment of the Court of Appeals."

Associate Justice Sandra Day O'Connor said: "In this case, we need only tell the Secretary that his regulations are not a reasonable interpretation of the statute; we need not tell Congress that it cannot pass such legislation. If we rule solely on statutory grounds, Congress retains the power to force the constitutional question by legislating more explicitly. It may instead choose to do nothing. That decision should be left to Congress; we should not tell Congress what it cannot do before it has chosen to do it. It is enough in this case to conclude that neither the language nor the history of 1008 compels the Secretary's interpretation, and that the interpretation raises serious First Amendment concerns. On this basis alone, I would reverse the judgment of the Court of Appeals and invalidate the challenged regulations.

With Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court again delivered a fractured opinion.  At issue was a facial challenge [inconceivable standard] to five sections of a Pennsylvania statute requiring informed consent, informed consent for a minor, certification of husband notification, defining medical emergency, and imposing reporting requirements.

The District Court held all the provisions unconstitutional and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the balance.

Associate Justice Sandra Day O'Connor addressed the tension in Roe between a woman's unfettered right under the Fourteenth Amendment to terminate her pregnancy and the State's interests in protecting potential life.  Her opinion reflected the rule from Webster v. Reproductive Health Center, that the point where the state's elevated interest in protecting fetal life begins with viability.

Associate Justice Nino Scalia, in his dissent, said that he does not believe that our "Liberty" is not protected by the Constitution. "The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." 

Stenberg v. Carhart brought a Nebraska statute criminalizing late tern abortions before the Court.  Associate Justice Breyer began his 5-4 opinion affirming that Roe v. Wade would not be overturned.  Breyer's opinion focused on three established principles.  "First, before 'viability … the woman has a right to choose to terminate her pregnancy.'”  "Second, 'a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability' is unconstitutional."  "Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"

Associate Justice Stevens said that it made no sense for Nebraska to choose one method of abortion over another. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational."

Associate Justice O'Connor said "a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional."

Associate Justice Ginsberg said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue."

Associate Justice Scalia, who as we recall cannot find the concept of Liberty in the Constitution, attacked the Court's opinion as "policy-judgment-couched-as-law."

Associate Justices Kennedy's and Thomas' dissents violently clash with the Court's majority opinion in general and Justice O'Connor's opinion in particular. Chief Justice Rehnquist with Scalia, Kennedy, and Thomas would give great deference to Nebraska. They find Justice O'Connor's view that the statute would pass constitutional muster with an appropriate exception for the health of the mother disingenuous.

Gonzales v. Carhart and the companion case of Gonzales v. Planned Parenthood Federation of America  finds the Court tackling the gruesome topic of Partial Birth Abortion, again.

Carhart facial challenged the constitutionality of the Act. Carhart claimed the Act was void for vagueness, or in the alternative, was constitutionally infirm because it placed an undue burden based on a woman's right to abortion based on the Act's overbreadth or lack of health exception.

Associate Justice Kennedy concluded that the Act in this case was not void for vagueness and did not impose an undue burden from any sense of overbreadth. The facial challenge to the Act failed.

It is important to note that the Act applies without regard to whether the fetus is pre or post viable. This point was uncontested by the parties.

To fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.”

Finally the Court discusses mens rea, "Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks.

Associate Justice Clarence Thomas continues to claim that there is no right to an abortion under the Constitution.

Associate Justice Ginsburg delivered an attack of the opinion in her dissent.  She said "Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health."  Quoting Seventh Circuit Chief Judge Richard Posner she said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostilities to those rights, the burden is undue."
That took the line of cases to 2007.  Now we see states, like Kansas, doing what the New England Journal of Medicine spoke about, adopting laws that tell the physician to ignore the health of the patient.


Saturday, March 24, 2012

A Preview of the Three Cases Challenging the PATIENT PROTECTION AND AFFORDABLE CARE ACT in the United States Supreme Court Next Week

Getting the Patient Protection and Affordable Care Act before the United States Supreme Court is a behemoth undertaking.  In fact, it took several cases to get the issues to the Court.  Here they are, Department of Health and Human Services v. Florida is docket number 11-398 and pertains to the Anti-Injunction Act (AIA) (but really health care reform); Florida v. Department of Health and Human Services docket number 11-400 (Medicaid); and another part of Department of Health and Human Services v. Florida docket number 11-398 (Minimum Coverage Provision). 
The Anti-Injunction Act, 11-398, gets argued on Monday.  The Minimum Coverage Provision, 11-398, will be heard on Tuesday.  The Medicaid Provisions of the Patient Protection and Affordable Care Act, 11-400, (ACA) will be on the Court's agenda Wednesday

In Department of Health and Human Services v. Florida the question on the Anti-Injunction Act, 26 U.S.C. §7421 (A) is focused on why this challenge to the ACA's mandate to obtain health insurance is not barred by the AIA's prohibition on "suit[s] for the purpose of restraining the assessment or collection of any tax." Which is the position of the State of Florida.  The ACA structured a penalty for failure to comply with the individual coverage mandate and in so doing relied on its Constitutional Authority under the Commerce Clause.  Thus, in part, the Department argues the AIA is inapplicable because the ACA is not imposing a tax.

The Tuesday version of the Department of Health and Human Services v. Florida looks at the Minimum Coverage Provision of the ACA.  The question presented is whether the Minimum Coverage Provision of the ACA  is a valid exercise of Congressional Power under Article I of the Constitution.  The Department will be arguing that the Minimum Coverage Provision is a valid exercise under the Commerce Clause since it relates to interstate commerce and the provision is a necessary component of the ACA's objective to achieve Insurance Reform.

The third aspect of this case asks the question relating to Medicaid. Has the Congress exceeded its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress's spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?

The rule in South Dakota v. Dole the Congress established a national drinking age of twenty-one years.   South Dakota permitted persons nineteen years and older to drink containing 3.2% alcohol by weight (which is equivalent to 4% by volume).  The law, Title 23 U.S.C. §158 (1982 ed., Supp. III), directed the Secretary of Transportation to withhold a percentage of otherwise allocable federal highway funds from States "in which the purchase or public possession . . . of any alcoholic beverage by a person who is less than twenty-one years of age is lawful."  So South Dakota was losing highway funds and they sued the Secretary of Transportation, Elizabeth Dole.

This relates to Medicaid funds in the case before the Court next week.  In South Dakota v. Dole the Court said "[i]ncident to the spending power, Congress may attach conditions on the receipt of federal funds. However, exercise of the power is subject to certain restrictions, including that it must be in pursuit of "the general welfare.""  Chief Justice Rehnquist delivered the opinion in the case and went on to say "[s]ection 158 also is consistent with the spending power restrictions that, if Congress desires to condition the States' receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.

Next week is going to be historic at the Supreme Court next week.  If you want to listen to the oral arguments in the case, they will be posted following argument on March 26th, 27th, and 28 th at  That link is currently at the bottom of the page.  If you want to read the orders, briefs, and other information about this case go to