Kansas Supreme Court Upholds Ban On In-Person Religious Services

Amid the debate over whether it is legal and proper for governors to ban church services to stem the spread of COVID-19, the Kansas Supreme Court has weighed in and upheld the authority of the governor to prohibit services with more than 10 people in attendance.

Per Kansas’ KCUR news, Democratic Gov. Laura Kelly’s order was challenged by the Republican legislature. The state Supreme Court weighed in on the issue late Saturday night and handed the governor a victory hours before Easter sunrise services would have been held.

The expedited ruling was decided on a technical matter rather than the merits of the case. The judges decided that the plain language of Kansas law did not permit the Legislative Coordinating Council to overrule the governor’s Executive Order banning “mass gatherings.”

The Executive Order defined “mass gatherings” as “any planned or spontaneous, public or private event[s] or convening[s] that will bring together or [are] likely to bring together more than 10 people in a confined or enclosed space at the same time.” The order replaced an earlier order that contained an exception for “religious gatherings” and “funeral or memorial services or ceremonies.”

The opposing sides did not even gather in person to argue the case. Court proceedings were carried out via an internet video conference on Zoom.

You can read the full 23-page ruling here: https://www.kscourts.org/KSCourts/media/KsCourts/High%20Interest%20Cases/Kelly%20v%20LCC/122765Opinion.pdf

Originally published on The Resurgent

Trump’s Legacy May Include New Limits On Presidential Powers

The law of unintended consequences figures prominently public policy. When the legacy of President Trump is written into the history books, whether that be one year from now or five, it is likely that this axiom, which holds that actions frequently have effects that were far from their intended purpose and that often run counter to it, will play a prominent role. In President Trump’s case, the result of the imposition of the law of unintended consequences may be that the president’s plan to use broad executive powers to enact his agenda actually ends up limiting presidential power both for Mr. Trump and his successors.

Way back in January 2016, candidate Trump announced his intention to follow Barack Obama’s lead in using Executive Orders to get things done when Congress refused to act. “I won't refuse it. I'm going to do a lot of things, Trump said on “Meet the Press” at the time.

“I mean, he’s led the way, to be honest with you,” Trump said, “But I’m going to use them much better and they’re going to serve a much better purpose than he’s done.”

When Bill Barr was confirmed as attorney general, the president found a likeminded lawyer to help carry out his aims and, to coin a phrase,  be his wingman. In a speech to the Federalist Society in November 2019, Barr lamented what he called the “steady encroachment on Presidential authority by the other branches of government,” which he said had “substantially weakened the functioning of the Executive Branch, to the detriment of the Nation.”

Most constitutionalists would probably disagree with Barr. In fact, it is generally conceded that Congress has abdicated much of its authority to the president over the past century or so. While there were exceptions, such as the War Powers Act, Congress has habitually passed vaguely worded laws and then punted them to the executive branch to iron out the details. As a result, the president and his cabinet have an almost unfettered hand in rulemaking for everything from health insurance policies to import taxes.

Even this broad expansion of presidential power has not been enough for recent chief executives. Both Barack Obama and Donald Trump pushed the envelope of presidential and executive bureaucratic authority. Resistance from Congress to these usurpations of its power has mainly been a partisan issue with the battle lines reversing depending upon which party is in power at the time.

However, the Trump Administration, headed by a president who has said repeatedly that “Article II allows me to do whatever I want,” has provoked a flurry of lawsuits pushing back on the idea that presidential power is unlimited. On one occasion, the president’s lawyers even argued in court that Mr. Trump could not even be punished for shooting someone on Fifth Avenue while in office, but that law enforcement agencies would have to wait until his term was up.

Many of these lawsuits are as yet undecided, and some may not reach the Supreme Court until after Mr. Trump is once again a private citizen. This would most likely mean that the Court never rules on these issues at all and lower court rulings stand.

Here are several of the landmark cases winding their way through the judiciary:

Donald J. Trump v. Deutsche Bank AG, Trump v. Vance, and Trump v. Mazars  Lower courts ruled that President Trump must comply with a congressional subpoena for his financial records as part of a congressional investigation. The president’s lawyers argued that he had “temporary presidential immunity” while in office. The cases will be heard by the Supreme Court in March. The cases deal with both congressional and grand jury subpoenas.

Committee on the Judiciary v. McGahn A federal judge ruled in November that former White House counsel Don McGahn must testify in response to a congressional subpoena. The White House had claimed that McGahn was “absolutely immune from compelled congressional testimony.”

Regents of the University of California v. Department of Homeland Security and NAACP v. Trump These two cases will determine whether President Trump has the authority to end the DACA program, established as an executive action by President Obama. The Supreme Court heard oral arguments on these cases in November.

El Paso v. Trump, Trump v. Sierra Club, and State of California v. Trump The trio of cases challenge President Trump’s use of national emergency powers to redirect funds for construction of the border wall. These cases will probably end up at the Supreme Court as well. So far, the high court has allowed the Administration to continue using reprogrammed funds in the Sierra Club case, but a federal judge in Texas granted an injunction to El Paso County to stop the reappropriation by the president.

Some cases have already been decided as well and the results have been mixed. For example, the Supreme Court ultimately upheld the president’s travel ban but only after lower court rulings led the Administration to revise the original order. Likewise, the US Trade Court upheld the president’s authority to impose tariffs for national security reasons. On the other hand, the Supreme Court denied a Trump Administration attempt to add a citizenship question to the census because the Commerce Department violated the Administrative Procedures Act, which requires honesty and openness in public rulemaking.

Now, with US-Iranian relations at a crisis stage, President Trump is also provoking a debate on presidential war powers. Presidents have long considered the War Powers Resolution to be unconstitutional, but Speaker Nancy Pelosi has announced her intention to hold a vote limiting Trump’s ability to strike Iran without congressional permission. Among the questions to be considered is whether a tweet satisfies the president’s obligation to notify Congress.

https://twitter.com/realDonaldTrump/status/1213919480574812160?s=20

Although President Trump has appointed many new judges, including two Supreme Court justices, the outcome of many of these cases is not preordained. Constitutionalist judges will vote on the law and the merits of the case rather than partisan affiliation. On some cases, that will put them at odds with Mr. Trump.

The Founders, fresh from a revolution in which they threw off the rule of a king, did not intend the Constitution to set up an imperial presidency with executive powers that were unlimited or nearly so. If courts act to rein in the imperial presidency, Americans of both parties will ultimately benefit.

Originally published on The Resurgent

16 States Sue Over Trump’s Emergency Declaration

Sixteen states have filed a lawsuit to stop President Trump’s attempt to use an emergency declaration to reprogram federal money to fund his border wall project. The group of states joining the lawsuit includes two states located on the Mexico border along with another three states near the southwestern border.

The complaint was filed in California’s Northern District by California Attorney General Xavier Becerra accuses Trump of “flagrant disregard for the separation of powers” by redirecting money appropriated for the states to the wall construction after Congress rejected the president’s request. In addition to California, the lawsuit includes Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia. The states all have Democrat attorneys general and all but one have Democrat governors.

The lawsuit says, “By the President’s own admission, an emergency declaration is not necessary.” In his speech announcing the emergency declaration, Trump said, “I could have done the wall over a longer period of time. I didn’t need to do this.” The lawsuit also notes that the federal government’s own data show there “is no national emergency at the southern border that warrants construction of a wall.”

The lawsuit also claims that the states would be harmed by the reprogramming of money that Congress appropriated for law enforcement and anti-drug efforts. In the case of California and New Mexico, the complaint alleges that the wall construction would cause “irreparable environmental damage.” These claims give the states standing to bring suit against the plan.

The president intends to reprogram $8 billion in federal funds using the emergency declaration. Congress appropriated $1.375 billion in the Homeland Security funding bill and the president plans to use $600 million from Treasury Department drug forfeiture funds, $2.5 billion from a Department of Defense counter-narcotic fund, and $3.6 billion from the military construction budget.

While Donald Trump is not the first president to declare an emergency, he is the first to do so specifically because Congress refused his request to appropriate money. When asked by Chris Wallace on Fox News Sunday if he could point to a single case “where the president asked Congress for money, Congress refused to give him that money, and the president then evokes national emergency powers to get the money?” Miller could not cite a single example.

Wallace also pointed out that the majority of drugs entering the country come through ports of entry, not unfenced portions of the border. Miller agreed, “Which is the reason why we also ask for additional resources at the ports of entry.”

“But this is what you got,” Wallace answered, noting correctly that the funding agreement passed earlier this month included $615 million for new equipment at ports of entry.

Writing for National Review, David French pointed out that the Trump Administration is forced to twist the law in order to use the military construction money for the border wall. The stipulations for reprogramming this money in an emergency are that the crisis “requires use of the armed forces” and that the construction is “necessary to support such use of the armed forces.” The border situation, a civilian law enforcement problem, fails the test on both counts. Under the Posse Comitatus Act, the military is prohibited from engaging in domestic law enforcement.

The lawsuit against President Trump recalls a similar lawsuit brought against Barack Obama by House Republicans. Under John Boehner, the GOP sued Obama for spending money on Obamacare subsidies without the money having been appropriated by the House. Federal District Judge Rosemary Collyer ruled against President Obama’s executive overreach in 2016, saying, “Congress is the only source for such an appropriation, and no public money can be spent without one.”

The recent bipartisan spending bill limited the construction of new border fencing to specific areas. It is not clear if the Trump Administration will attempt to use the national emergency to construct fencing in areas that were not authorized by Congress.

The lawsuit by the states is likely to be only the first in a series of legal attempts to rein in the Trump Administration’s use of emergency authority to bypass a stalemated Congress. It is possible that House Democrats may launch a lawsuit similar to the Republican effort against Obama to protect the House of Representatives’ constitutional role as the keeper of the government purse.

As the legal battle stretches into the election year, the blowback is likely to damage Republican efforts in Congress as well as President Trump’s re-election campaign. Americans are split on the border wall with about 30 percent in favor, but public opinion is strongly against the national emergency. Polls consistently show that two-thirds of voters oppose the use of a national emergency to fund the wall. A long, drawn out, unpopular legal fight for an unpopular project is not a good way to start an election cycle.

Worse is the fact that the party that claims to represent constitutionalists is twisting the law to enact a policy against both the rule of law and the will of the people. The framers did not intend for presidents to find ways to subvert Congress when legislators failed to act. They did intend for elected officials to be responsive to the voters. The fact that President Trump was elected 2016 does not grant him carte blanche.

President Trump made his case for a border wall to the American people in both 2016 and 2018 and failed to receive a mandate in either election. The Democrats hold the House in no small part because voters chose to rebuke the Trump Administration for its hardline immigration policies. If Mr. Trump refuses to accept that rebuke, it is likely that voters will deliver another in 2020.

Originally published on The Resurgent

Ruling In CNN Lawsuit Over Acosta Ban Expected Today

The judge presiding over the CNN lawsuit regarding Jim Acosta’s White House press access said that he will issue a ruling this afternoon. CNN filed suit on Tuesday and the first hearing in the case was held yesterday. CNN is asking for a temporary restraining order that would force the government to return Mr. Acosta’s White House access.

CNN’s attorney, Theodore Boutrous, said that the “judge was very, very, focused on the key issues of the case.”

In the two-hour hearing, Judge Timothy of the United States District Court for the District of Columbia, a Trump appointee, probed CNN’s claim that Acosta’s ban was viewpoint discrimination rather than an action based on the reporter’s conduct. Boutrous cited the Trump Administration’s attack on CNN for “liberal bias” in a fundraising email sent after the revocation.

Boutrous also told the judge that the Trump Administration’s claim that Acosta put his hands on the White House intern who tried to grab his microphone was “absolutely false,” noting that the 28-page brief filed by the Justice Department does not allege that Acosta touched the aide.

James Burnham, the attorney representing the Justice Department, said that the White House didn’t need a reason to ban Acosta “because there's no First Amendment protection and the President has broad discretion.”

Burnham attacked CNN’s First Amendment claim, saying, “A single journalist's attempt to monopolize a press conference is not a viewpoint and revoking a hard pass in response to that is not viewpoint discrimination.”

At issue is whether the White House had valid cause to revoke Acosta’s press access. There is legal precedent from the 1977 case Sherrill v. Knight that “such refusal [for press access] must be based on a compelling governmental interest.” Judge Kelly must decide whether Acosta’s disruptive actions at last week’s press conference were sufficient to give the White House a valid reason for revoking his access. President Trump’s longstanding feud with CNN and Acosta give the news outlet ammunition to claim that the ban was directed at CNN because of their unfriendly coverage of the Trump Administration.

Numerous news organizations such as Fox News and the USA Today Network have filed briefs supporting CNN’s petition. “Secret Service passes for working White House journalists should never be weaponized,” said Jay Wallace, president of Fox News. “While we don’t condone the growing antagonistic tone by both the president and the press at recent media avails, we do support a free press, access and open exchanges for the American people.”

The ruling is expected at 3:00 p.m. Eastern time today.

Originally published on The Resurgent

UPDATE; 11/15/2018 4:02 PM Earlier today, we reported that a ruling would be coming down this afternoon on whether CNN would be granted temporary relief from the White House's decision to revoke press access for Jim Acosta following last week's press conference kerfuffle. We can now report that federal judge Timothy Kelly has delayed the hearing on the temporary restraining order until tomorrow.

CNN reported earlier today that Kelly had rescheduled the hearing for Friday morning at 10:00 a.m. Eastern. At the hearing, Kelly, a Trump appointee, will decide whether to issue a temporary order that restores Acosta's press access until the case is decided. Regardless of tomorrow's decision, CNN says that the case will go forward as they pursue permanent restoration of Mr. Acosta's White House media privileges.

​

Stormy Daniels' Suit Dropped Like Discarded Stripper Outfit

In a metaphorically appropriate ruling yesterday, porn star Stormy Daniels saw her legal suit hit the floor like a discarded stripper’s costume. A federal judge not only dismissed Daniels’ defamation lawsuit against Trump, but he is also requiring the adult actress and one-time alleged Trump paramour to pay the president’s legal fees in the case.

Daniels, whose real name is Stephanie Clifford, had filed suit against the president after he tweeted last April that Daniels’ story about being intimidated by an unknown assailant was a “con job.” Prior to the 2016 election, Daniels had threatened to go public about her sexual exploits with the married Mr. Trump and later claimed that Team Trump had sent the man to silence her.

Federal District Judge James Otero wrote in his decision dismissing the case that “the tweet in question constitutes 'rhetorical hyperbole' normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement.” The decision also stipulates that Daniels must pay the president’s legal fees in the case.

In a statement to CNN, Trump lawyer Charles Harder gloated, “No amount of spin or commentary by Stormy Daniels or her lawyer, Mr. Avenatti, can truthfully characterize today's ruling in any way other than total victory for President Trump and total defeat for Stormy Daniels.” Harder said that the attorney fees owed by Daniels would be determined later.

A second lawsuit between Daniels and the president is still pending and is not affected by yesterday’s ruling. The second case involves both President Trump and his former attorney Michael Cohen and stems from the $130,000 payment that Trump made to Daniels as part of their nondisclosure agreement. The second suit alleges that the NDA is not valid because Trump did not personally sign the contract.

On Twitter, Daniels’ lawyer Michael Avenatti blasted the statement by Harder and called the NDA lawsuit “the main case… due to its allegations of conduct that constitutes a federal crime.” Avenatti said that Trump would owe Daniels “attorneys’ fees and costs in connection with the NDA case that will far exceed any fees or costs awarded in the defamation action.”

Legal scholar Eugene Volokh examined the NDA last March after Daniels filed suit and attempted to clear the murky waters of the agreement. Per Volokh, the law may not require Trump’s signature to make the agreement valid, but there are other issues that may invalidate the contract including the fact that since Trump is now president restraining the speech of an individual may represent a violation of the First Amendment.

But Trump’s legal team may have rendered the NDA lawsuit moot. Last month, Trump agreed not to enforce the NDA or sue Daniels for violating its terms. That leaves the possibility that Daniels and Avenatti may pursue the case in hopes of pinning campaign finance violations on Donald Trump or of winning legal fees in the case.  Michael Cohen has already pled guilty to campaign finance violations related to the payoff to Daniels.

For now, Team Trump can celebrate its “total victory” and some vindication in the weeks ahead of the midterm elections. The second lawsuit and Mr. Avenatti’s presidential aspirations will be put to the test later.

Originally published on The Resurgent

GOP Lawsuit Attempts To Kill Obamacare (Season 8 Episode 1)

Congressional Republicans no longer seem to be talking about repeal or replacement or reform of Obamacare, but that doesn’t mean that the effort to rid the country of the onerous health insurance law is dead. The latest attempt on the life of Obamacare comes from Texas Attorney General Ken Paxton and early indications are that it may have a better chance at success than previously thought.

The lawsuit is based on the facts that Justice John Roberts’ majority decision preserved the Obamacare mandate as a tax and that Republicans later eliminated the tax penalty for not purchasing health insurance, essentially eliminating the mandate. The Republican plaintiffs argue that the Affordable Care Act is now unconstitutional because the law depended on the mandate to make the system work and the mandate has now been removed.

“There is no real true mandate because the tax is eliminated,” Darren McCarty, special counsel for the Texas Attorney General’s office, argued in federal district court. “The ACA is unconstitutional on its face.”

The Texas lawsuit has been joined by 20 states and the Trump Administration Department of Justice. While the state attorneys general are asking for the court to strike down the entire law, the DOJ is only seeking to invalidate certain portions of the law such as those that deal with coverage for people with pre-existing conditions and limits on how much insurers can charge people based on gender and age.

Defense of the law has been picked up by Democrats who argued that striking down the law would harm the millions of Americans with pre-existing conditions.

“The harm of striking down the ACA…would be devastating,” said Nimrod Elias, a California deputy attorney general defending the law.

The case hinges on whether Congress eliminated the mandate by removing the penalty. While the mandate is still technically part of the law, it will be unenforceable when the penalty expires.

Telltale signals from U.S. District Judge Reed O’Connor give opponents of the law hope for a friendly ruling. Observers said that O’Connor’s line of questioning often echoed the views of the Obamacare critics. The judge also asked questions about severability, whether other parts of the ACA could remain in force without the individual mandate.

O’Connor, who was appointed by George W. Bush, has ruled against the ACA in the past, issuing a temporary injunction against a regulation prohibiting price discrimination based on age and gender in 2016. Judge O’Connor said that he will deliver a ruling as quickly as possible, meaning that a decision before the midterm elections is likely.

Whether the decision strikes down all or part of the ACA or lets it stand, it could have an effect on the midterms. Democrats are using the threat to the law, which has become more popular since Donald Trump took office, to build support for midterm candidates. For their part, Republicans would use a decision against the law to show their base that they are making progress against government encroachment.

Conservatives shouldn’t get their hopes up. Lawsuits against Obamacare that looked more promising have all gone down to defeat and if O’Connor rules against the law, Democrats are certain to appeal. The case could eventually have the Supreme Court rule once again on the constitutionality of Obamacare.

In the meantime, a ruling against the law could not come at a worse time for Republicans. With GOP candidates already battered by association with an unpopular president, a ruling that allows Democrats to paint Republicans as hostile to people with pre-existing conditions would not help the party’s chances of holding Congress.

Originally published on The Resurgent

Trump Administration Won't Defend Obamacare In Court

The Trump Administration has announced that it will no longer defend the Affordable Care Act in court, claiming the Obamacare law is unconstitutional. The move mirrors a decision by the Obama Administration to end government legal defense of the Defense of Marriage Act in 2011.

The Supreme Court upheld most provisions of the ACA, but 20 states filed a new lawsuit against the Obama-era health insurance law earlier this year. The new suit alleges that when Congress removed penalties for violating the individual mandate last year it made the rest of the law unworkable. 

“I am at a loss for words to explain how big of a deal this is,” Nicholas Bagley, a University of Michigan law professor and former Justice Department attorney, told USA Today.

“The Justice Department has an obligation to defend the law and it has refused to do so because it dislikes this particular law,” Bagley said, adding that the Trump Administration’s “dislike for the Affordable Care Act outweighed its respect for the rule of law.”

Ironically (or hypocritically), Bagley defends the Obama Administration’s decision to stop legal defense of the DOMA because President Obama disliked that particular law. “Refusing to defend a law that countenanced overt discrimination against a disfavored group is different from refusing to defend one that regulates health insurance,” Bagley wrote in March, “But that’s the thing about precedent. It can be stretched.”

The Trump Administration move does not mean that Obamacare will lose the lawsuit by default. As with the DOMA, the courts have approved private attorneys to step in for the DOJ. Axios notes that a group of Democratic attorneys is being allowed to defend the ACA in court.

The DOJ does not join with the states in the full lawsuit, but is arguing that the ACA’s provisions regarding pre-existing conditions should be invalidated. In a letter to Minority Leader Nancy Pelosi (D-Cal.), Attorney General Jeff Sessions said, “Otherwise individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else.”

The future of the Obamacare lawsuit is uncertain. The makeup of the Supreme Court has not changed materially since the previous decisions upheld the law. A different outcome would most likely require Chief Justice John Roberts to change his vote.

The Trump Administration policy may also affect the midterm elections. A recent NBC News/Wall Street Journal poll found healthcare to be the top concern of registered voters. Voters have long favored protection for pre-existing conditions.

Having failed to reform or replace Obamacare, Republicans are now dependent upon the courts to kill the failed health insurance law. With Congress in a stalemate, both parties are increasingly looking to the courts to bypass the legislature and break stalemates. While this is not the role that the founders envisioned for the courts, if Democrats don’t like the Trump Administration’s decision, they have only Barack Obama to blame.

Originally published on the Resurgent

Monkey Business in Federal Court

Naruto (Currently Public Domain)

Federal courtrooms are commonly accused of monkey business, particularly where the Ninth Circuit is concerned. That was certainly the case this week when a three-judge panel heard the case of an Indonesian macaque named Naruto.

The simian, aided by human attorneys from PETA, was attempting to sue photographer David Slater for copyright infringement. It seems that the humanoid fur-baby allegedly grabbed Slater’s camera on a trip to Indonesia in 2011 and took a hundreds of pictures including several striking selfies.

Without bothering to ask Naruto’s permission, Slater published the picture in a book after retrieving his camera. The monkey poo hit the fan when the pictures were posted to Wikimedia in a move that Slater said violates the copyright on his work and is costing him a fortune in royalties.

Slater says that he did most of the work, setting up the camera equipment and framing the shots. “You could look at it like this: The monkey was my assistant,” Slater told the BBC. “And therefore I was the artist behind the image and I had my assistant press the button. This needs to be tested in a court of law.”

The US Copyright Office saw things differently. In 2014, the agency clarified its guidelines on the issue, saying that works created by nonhumans are not subject to copyright. “Photograph taken by a monkey” is specifically listed as an example. Nevertheless, Slater continues to claim the copyright and has considered suing Wikimedia.

David Schwarz, a PETA lawyer, argued that Slater’s actions constituted copyright infringement and filed suit on behalf of Naruto in 2015 per the LA Times.  Exhibiting an obvious case of human privilege, judges seemed skeptical of the PETA argument that Naruto had suffered an injury due to Slater’s shameless appropriation of the monkey’s artistic efforts. At one point, Judge Carlos Bea suggested that the case should be dismissed and, in a throwback to the Scopes Trial, asked Schwarz to cite any Supreme Court precedent that held that “man and monkey are the same.”

The Ninth Circuit Court of Appeals is expected to uphold the earlier decision in favor of Slater and against PETA. “It is absurd to say a monkey can sue for copyright infringement,” said Angela Dunning, Slater’s attorney. “Naruto can’t benefit financially from his work. He is a monkey.” PETA is “not even sure they have the right monkey,” she added.

A British newspaper argued, “Hey, hey, it’s the monkey’s,” but Slater may have the last laugh. Another of his attorneys, Andrew Dhuey, said that PETA should be forced to pay legal fees for the nearly broke photographer.

“Monkey see, monkey sue will not do in federal court,” Dhuey argued.

Originally published on The Resurgent

Never Trump wins Virginia lawsuit

(Michael Vadon/Wikimedia)

As Republican delegates prepare to make their way to Cleveland for next week’s Republican National Convention, a Virginia judge has given the Never Trump movement a breath of life. In a stunning ruling, a federal judge ruled that Virginia Republican delegates are not bound by the state law that requires them to vote on the first ballot at the convention for the winner of the state primary.

The decision stemmed from a suit brought by delegate Carroll “Beau” Correll against Virginia elections officials. Correll’s suit claimed that the law binding him to vote for Trump, the winner of the Virginia primary, was a violation of his First Amendment rights to freedom of speech and association. Even though Donald Trump won the Virginia primary, many supporters of rival candidate, Ted Cruz, were appointed as delegates to the convention.

The case, “Correll v. Herring,” will apply only to Virginia delegates, but Judge Robert Payne did cite precedent in his ruling that could apply to other states that have similar laws. In “Democratic Party of U.S. v. Wisconsin ex rel. La Follette” (1981), the Supreme Court ruled that state law could not override party rules for delegate selection. In that decision, Justice Potter Stewart wrote, “A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.”

In 1912, the Nebraska Supreme Court ruled, “expression of a preference for President by those voting at primary election ... is only morally binding on delegates to national party conventions.” In other words, delegates are not legally bound by primary votes, but may have an ethical obligation to follow the will of the voters.

The judge, Robert Payne, has served on the U.S. District Court for the Eastern District of Virginia since 1992. He was nominated to the court by George Herbert Walker Bush and received the unanimous approval of the Senate.

The ruling will likely encourage other Republican opponents of Trump to make a stand against the presumptive nominee at the convention next week. There is a movement afoot to change Republican Party rules that bind delegates. Kendal Unruh, the leader of the “Dump Trump” movement, said earlier this week in the Daily Wire that there were enough votes on the rules committee to “free the delegates.”

David Rivkin, the attorney for Correll, said in a statement after the ruling, “Today's decision should give comfort to all delegates that they cannot be punished for voting their conscience at the Republican National Convention.”

Read it on Conservative Firing Line

Settlement in Kolfage lawsuit with alleged trolls

Two years ago, the conservative internet community was in the midst of a campaign of harassment by a group of liberal “trolls” who called themselves “goats.” “Trolling” is an internet term that essentially refers to cyber-bullying, harassing people online and, sometimes in the real world as well. The secret group was led by a shadowy figure known as “Busta Troll.” Now the law may have caught up with some alleged trolls.

Last year, Senior Airman Brian Kolfage, a conservative activist and owner of WoundedAmericanWarrior.com, filed a lawsuit against seven of the alleged trolls. The lawsuit alleged assault, slander and libel against Kolfage. Kolfage, who lost both legs and one arm in Iraq in 2004, became a frequent target of the goats and trolls online according to Military.com. The harassment allegedly even extended to harassment of the Kolfages and their relatives at home, school and work.

Kolfage declined to be interviewed for this article citing ongoing legal proceedings and court orders, but spoke last year to Fox 10 Phoenix, saying, “The same people would write stuff on my Facebook page, and the stuff they would write is just horrendous. They would say they wished I had died, they said I was a drain on the government system, just really nasty stuff. I started sharing the comments, and it went viral. Because I was just fed up with it.” He added, “And once they brought my family into it, and tried to do things against my family, and ruin my wife's career, I decided I needed to take legal action to stop it.”

Court documents reveal that five of the seven recently reached an agreement with Kolfage and his wife. The settlement agreement was reached between the Kolfages and Nathanial Downes of Puyallup, WA; Justine Grant of North Fort Myers, FL; Paul Loebe of Nashville, TN; John Prager of Wheeling, WV; and Kenneth Vanderzanden of Beaverton, Oregon. Three of these defendants are reportedly bloggers for Addicting Info, a popular liberal site.

Two defendants, Louis Caponecchia of Toledo, OH and Darren Remington of Nashville, TN, did not join in the settlement. The lawsuit against these defendants is still proceeding.

As a result of the agreement, the lawsuit was dismissed while keeping in place an agreement that required both sides to not “disparage one another going forward in the future and that they won't take action through third parties to disparage one another. And that to the extent that they have the power to affect, they will, in good faith, attempt to remove anything that is disparaging that's within their control” from the internet. The agreement stipulates that all parties would call the settlement “equitable.”

An additional agreement between the Kolfages and Paul Loebe requires Mr. Kolfage to write an acknowledgement for publishing the personal information of Jan Vrotsos in retaliation for her alleged post calling him “a worthless fake hero” among other things. Mr. Kolfage also agreed to express regret for anything said or done to Vrotsos as a result. This acknowledgement will be delivered to Mr. Loebe by June 30. Ms. Vrotsos has since been shown to be innocent of posting the remark.

A blogger pointed out that some of the defendants may have violated the terms of the agreement with posts after the lawsuit was dismissed, but these posts have since been deleted. At this point, seems that both sides are trying to live up to the settlement agreement.

An attempt was made to contact the defendants and the Kolfages for more information about the case. The first response was from Darren Remington, whose case is still pending. Remington alleges that it was Kolfage who aggressively stalked and intimidated critics online. He and his partner have filed a suit against the Kolfages, their attorney and another conservative blogger, Scott Kuhnen. Remington denies that he has ever been a “goat” or a “troll” and says that he is a “registered conservative Republican.”

Louis Caponecchia also denies being a goat or a troll, saying, “I never hid my identity.” He also claims to have been the victim of harassment by conservative fans of Kolfage, who he says, “purchased a background report on me, called my military service fraudulent, he and his father and others prank called my father, mother and sister, as well as my cell phone dozens of times a day.” He alleges that the Vrotsos post was fabricated and asserts a willingness to debate at any time. According to Politichicks, Kolfage stated in 2014 that he had also come to the conclusion that Vrotsos was innocent.

Caponecchia says, “Kolfage will never win, nor get one penny. And when its [sic] over, I'm going to punch Brian Kolfage in the face numerous times, and laugh as he flails his one arm around, screaming for help.”

Paul Loebe, who also denies being a goat or a troll, calls the settlement fair and says that he has offered Kolfage the “opportunity to help me amend, retract, or correct any mistakes in the new article. He has tacitly refused my offer and sent my wife threatening messages towards her and my daughter as a result.” When asked for details, Loebe declines to comment, but says, “I would like to resolve this without court proceedings if at all possible.”

Loebe also discusses the case in a May 31 article on Patheos, two days after the final order in the case. In his blog, he alleges that the lawsuit “did not appear to be a way to stop the bullying he stated he was receiving. Instead, it gave the appearance as a way to quell any dissent.” Loebe claims that he did not know the other defendants until they met through the lawsuit.

Nathaniel Downes also denies being a troll, saying he has a “prejudice against trolls in general” after having been trolled himself. He calls the settlement “a meeting of the minds.”

“I may not agree with the Kolfages' politics or positions,” Downes says, “but remember your Heinlein, ‘I never learned from a man who agreed with me.’ I wish them luck in their future endeavors and a long, peaceful life.” Downes says that he is writing a detailed book about the lawsuit.

John Prager also denies being a goat or a troll. It should be noted that all of the defendants denied guilt in the harassment of Kolfage and his family. The court did not determine guilt or innocence of the parties.

A blogger pointed out that some of the defendants may have violated the terms of the agreement with posts after the lawsuit was dismissed, but these posts have since been deleted. At this point, seems that both sides are trying to live up to the settlement agreement.

The best lesson from the lawsuit may be that people should remember that they are dealing with real people when they argue online. Tempers flare and, in the anonymity of the social media world, people say and do things that they would not in a face-to-face confrontation. This is especially true of those who use fake online personas. As the legal world catches up to technology, it is likely that there will be more cases involving cyber-bullying and stalking. People will be forced to pay a price in time, worry and legal fees to defend things that they said or did in online rants. The best answer is to think before you type.

Last year, Kolfage’s lawyer, Logan Elia, told Fox 10, “He did everything he could beforehand to get these people to stop. He begged them to stop online, he attempted to clear his own reputation. Nothing he did led them to backing off, in fact they just became more aggressive in their pursuit of him.” If Kolfage’s goal was stop the harassment and to have the defamatory posts removed, the lawsuit can be judged a success since both sides seem to be enjoying a fragile online peace.

DISCLOSURE: David Thornton’s Examiner articles are republished on Brian Kolfage’s WoundedAmericanWarrior.com.

Oklahoma lawsuit may deal Obamacare ‘fatal blow’

The Supreme Court upheld the constitutionality of the individual mandate in 2012, but now another lawsuit is challenging the Affordable Care Act on different grounds. The new lawsuit, brought by the State of Oklahoma, has its roots in a legal paper by Jonathan Adler, a professor at Case Western Reserve University, and Michael Cannon, director of health policy studies at the Cato Institute. The paper, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” argues that, according to the language in the law, Obamacare’s health insurance subsidies can only be applied to state exchanges, not exchanges set up by the federal government.

As Dick Morris explained in The Hill on Oct. 8, Section 1311 of the ACA establishes state health insurance exchanges. Section 1401 stipulates that refundable tax credits, the subsidies, are available only for health insurance purchased in Section 1311 exchanges, those set up by the states. Morris argues that the intent of Congress was to establish subsidies as an incentive for states to set up their own exchanges.

Only 16 states and the District of Columbia elected to form state health exchanges in spite of the promise of subsidies. One of these states, Oklahoma, filed suit in Pruitt v. Sebelius, challenging an IRS ruling that extended both the individual and employer mandates to all states according to lawyers.com. The suit claims that the employer mandate to provide health insurance to employees or pay a fine should not apply to states that did not set up their own health insurance exchanges. It also challenges the subsidies.

Although filed in 2011, a stay was issued until the Supreme Court ruled on the constitutionality of the Affordable Care Act. The federal government moved to dismiss the lawsuit after the stay was lifted, but a federal judge let stand the complaints against the employer mandate and subsidy. The court also ruled that the State of Oklahoma has standing in the suit as a large employer. The case is currently pending before the Eastern District United States Court of Oklahoma.

If the court eventually sides with Oklahoma, John Goodman of the National Center for Policy Analysis argues that it would be a “fatal blow” to Obamacare. “With so many states declining to set up exchanges,” he says, “Obamacare will be a disastrous failure if the courts agree with them.”

A victory for Oklahoma would also likely apply to other states, such as Georgia, that decided not to set up their own health exchange. As reported by Examiner, Governor Nathan Deal announced Georgia’s decision not to create an exchange in November 2012.

If the courts rule that the employer mandate and insurance subsidies do not apply in states with federal exchanges, it would destroy the delicate balance of the law in those states. Employers would not be fined if they declined to provide coverage for their employees. While the mandates for Obamacare’s “essential health benefits” would still apply in all states, subsidies would not be allowed in states with federal exchanges, making the cost of insurance prohibitively expensive.

While a court decision would not strike down the Affordable Care Act immediately, it would render the health law virtually nonexistent for employers in a majority of the country. While the individual mandate and fines would still apply, the lack of subsidies would mean that more people and companies would choose to opt out of purchasing insurance and the risk pool would shrink. Obamacare depends on young people buying expensive insurance to subsidize older and less healthy people.

If young, healthy people opt to pay the fine and employers choose not to provide health insurance, Obamacare will likely collapse under its own weight in short order. With Republicans controlling the House of Representatives, a new health care fix would require a bipartisan agreement, unlike when Obamacare was passed in 2010 with Democratic majorities in both houses and no Republican votes.

It seems as though Congress should have actually read the bill before they passed it.

Originally published on Elections Examiner

Supreme Court to hear Obamacare case this week

Next week the long awaited Supreme Court hearing on the Affordable Care Act, better known as Obamacare, will finally take place. The hearing comes just over two years after the law was passed. In a rare move, the Court is scheduling three days of oral arguments for the various aspects of the Affordable Care Act case. Typically, the Court hears two one-hour oral arguments each day that it is in session.

The Court has consolidated six lawsuits against the government about the Affordable Care Act. Four questions will be addressed. First, the Court will decide whether the Anti-Injunction Act means that the Court has no jurisdiction until the ACA goes into effect. The Tax Anti-Injunction Act of 1867 holds that a person protesting a tax in court must first pay the tax. The government’s position is that the fines that are levied as part of the individual mandate is a tax and therefore the court cannot hear the lawsuit against the tax until it is assessed. The individual mandate does not go into effect until 2014. The flaw in this defense is that President Obama and the Democrats specifically denied that the fine was a tax before the bill passed.

Second, the Court will address the question of the individual mandate, called the “minimum coverage provision” in court filings. The government holds that the Constitution’s Commerce Clause gives it the right to regulate the health insurance industry. Opponents argue that the failure to purchase health insurance is not commerce and therefore cannot legally be regulated by the federal government.

The government also argues that the mandate is also permissible under the Necessary and Proper Clause. Opponents argue that the Necessary and Proper Clause does not give the federal government the power to enact legislation that is otherwise unconstitutional because it is not among the powers granted to the government by the Constitution.

Next, the Court will determine whether the individual mandate is severable from the rest of the law. Generally, laws contain a severability clause that says that if any part of the law is found unconstitutional, the remainder shall remain in force. The ACA, for whatever reason, does not contain such a clause. Therefore, opponents argue that if the mandate is deemed unconstitutional then the entire law must be struck down. The government will argue that the rest of the law should stand even if the mandate is struck down.

Finally, the Court will hear whether ACA’s expansion of Medicaid places an unconstitutional burden on the states. Under the ACA, the states are required to expand Medicaid eligibility to an estimated 16 million people according to Yahoo. States that refuse will lose matching federal funds for their Medicaid programs. Twenty-six states have filed suit claiming that the Medicaid expansion is an unconstitutional violation of the Tenth Amendment, which states that powers not delegated to the federal government are reserved to the states and the people. Georgia is a party to this lawsuit.

Proponents of the law argue that courts have supported Congress’ ability to mandate that the states carry out programs that are paid for by federal money. They also note that the Medicaid expansion is paid for by federal funds for the first ten years.

Americans remain split on the Affordable Care Act. According to a recent USA Today/Gallup poll, 45 percent believe that it was a good thing that Congress passed the law versus 44 who believe it was bad. However, most believe that the law will make things worse for their family by a margin of 38-24 percent. An astonishing 72 percent Americans believe that the individual mandate is unconstitutional.

Public opinion notwithstanding, the decision is likely to be 5-4 in one direction or the other. The Court’s four liberals, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, are almost certain to vote in favor of the health care law. The Court’s four conservatives, John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito, are just as likely to vote to overturn it. That leaves Anthony Kennedy, appointed by President Reagan but often a swing vote, as the likely deciding vote.

Regardless of the outcome, the decision will affect almost all Americans. The public will have to wait for the outcome, however. Even though the Court will hear arguments in the first three days of next week, a decision on the case may not be published for several months. Most decisions are not issued until the last months of the term: May, June and July.

 

Originally published on Examiner.com:

http://www.examiner.com/conservative-in-atlanta/supreme-court-to-hear-obamacare-arguments-this-week

How to eliminate Obamacare

Since it was passed against the overwhelming opposition of the American people last March, Obamacare has not gotten any more popular. Amid continuing revelations of higher costs, more taxes, federal payment for abortions, and more restrictions on personal choice the support for the repeal of Obamacare remains high. The number of voters who support the law’s repeal has consistently been in the 2/3 range, with a recent poll showing that 56% favor repeal versus only 38% who oppose it (http://www.rasmussenreports.com/public_content/politics/current_events/healthcare/health_care_law). The numbers favoring repeal will likely increase as Obamacare is implemented. This is especially true if, as is likely, that it quickly follows the pattern of Romneycare in Massachusetts with exploding costs, price controls, and likely rationing.

The first step in dismantling Obamacare is to vote Republican. It is unlikely that the Democrats, who went against strong public opinion to pass the law in the first place, will have a change of heart and vote for repeal. The vote will eventually cost many of the Democrats their political careers.

Other parties such as the Libertarians also oppose Obamacare, but do have a realistic chance of getting elected. In the US, it is rare that a third party wins an election. More often, they act as spoilers and actually help the other side. This was true when Ross Perot drew conservative votes from George Bush and helped to elect Bill Clinton. It was true when Ralph Nader drew liberal votes from Al Gore and John Kerry and helped to elect George W. Bush. It was true when Libertarian candidate Allen Buckley helped to force Republican Senator Saxby Chambliss into a runoff with Democrat Jim Martin in Georgia’s 2008 Senate race.

If you are a conservative, be smart and vote Republican. If you don’t like the incumbent, vote against him in the primary but support the party in the general election. You may feel that Libertarian candidates are more conservative, but that it worth absolutely nothing - zilch! – if they don’t get elected. On the other hand, if you are a liberal, vote your conscience and go Green.

Voting Republican is also important in state races. For example, in the Georgia gubernatorial race one Democratic candidate is Thurbert Baker, the state attorney-general who refused Gov. Perdue’s order to file suit against Obamacare. If a Democrat, even Roy Barnes or Dubose Porter gets elected, how likely is it that the lawsuit will continue? Additionally, governors appoint replacements to representatives who resign or die. If Georgia has a Democratic governor, any replacement representatives would most likely be Democrats who would back Obama’s policies.

Recent polling indicates that it is likely that the Republicans will capture control of the House of Representatives and possibly the Senate as well (http://online.wsj.com/article/SB10001424052748704875004575375122374132154.html). The question is whether they will have enough votes to repeal Obamacare as well as some of the other damaging laws that the current administration has enacted.

It is unlikely that Obamacare will be repealed immediately because, even if the Republicans win enough votes to pass a repeal law, Barack Obama will still be president regardless of how badly the Democrats fare in the 2010 elections. President Obama will have the ability to veto any law passed by Congress. Unless the Republicans can muster enough votes to override the president’s veto, two-thirds of the house and senate, passing a repeal law would be an exercise in futility. It is unlikely that the Republicans will gain enough votes to have a 2/3 majority in both houses. It is possible that President Obama would not veto the repeal or that enough Democrats would join with Republicans to override the veto, but this is also unlikely.

Even if Obamacare cannot be totally repealed, there are things that Republicans can do to reform the reform. First, they can refuse to appropriate funding for the law’s most onerous and expensive provisions. The president cannot appropriate funds for anything himself. The president must submit a proposed budget to Congress, which must then pass it for it to become law. When President Obama submits a budget that appropriates money to fund Obamacare, Congress can simply refuse to pass the president’s budget and pass one of their own instead. The president can still veto the competing budget, but he cannot pass his own. Ultimately, the two sides would probably have to reach a compromise budget.

Second, the Republicans can pass legislation to reform Obamacare on a piecemeal basis rather than as a comprehensive bill. For example, Congress might find enough support to pass a law eliminating the individual mandate to purchase health insurance, even though there were not enough votes to repeal the whole bill. By passing a number of smaller reform laws, hopefully with veto-proof bipartisan majorities, many of the damaging aspects of Obamacare could be removed without having a veto showdown with President Obama over a repeal law.

Third, in addition to removing the worst aspects of Obamacare, Republicans should replace bad laws with good laws that restore competition and free markets to the health care industry. A reform of the employer-based health insurance market that gives individuals more choice over their insurance and medical options would be a good start. Competition means lower costs and more choices. Additionally, reform of tort laws to limit frivolous lawsuits and enormous judgments would also help to lower the cost of insurance, making it more affordable. Republicans should also favor the removal of legislative mandates from insurance policies to allow the sale of more inexpensive major medical polices.

Ultimately, at some point there will be another Republican president. Perhaps there will even be a Democratic president who is more open to free markets and competition rather than top-down government mandates. Perhaps conservative majorities will grow to the point that repeal forces can hope to override a presidential veto. When this happens, at the earliest possible moment, the Republicans should immediately move swiftly forward with a repeal bill to remove the last vestiges of Obamacare. The people expect it, the people want it, and if the Republicans don’t deliver, it will be at their peril.

The longer that Obamacare is in force, the harder it will be to remove it. Even if Obamacare is the disaster that I and many other people believe it will be, entitlements have a way of implanting themselves firmly into the political landscape. As more people become accustomed to receiving federal payments for their health insurance, even as the quality of health care deteriorates, it will become more and more difficult to convince people to leave the government gravy train and again take responsibility for their own health care. The furor over President Bush’s attempts to reform Social Security is a case in point. Even though people know that Social Security is facing a looming bankruptcy, inspired by Democratic fear mongering, they still resist change.

The lawsuit by the states against Obamacare is another avenue that is being pursued. The lawsuit is the wild card in the fight to repeal Obamacare. At last count, twenty states are suing to overturn the Obamacare law on constitutional grounds. Proponents of the lawsuit claim that Obamacare’s individual mandate is unconstitutional because the Constitution does not give the federal government authority to force people to purchase a commercial product. Additionally, some also cite the constitution’s tenth amendment which states that powers not delegated to the federal government are reserved by the states.

Critics of the lawsuit point out that the Supreme Court has historically been reluctant to overturn federal programs on constitutional grounds. They also cite the commerce clause which grants the federal government the right to regulate interstate commerce. Proponents of big government believe that the commerce clause gives the federal government practically unlimited power to regulate business.

As a historical comparison, the Supreme Court did strike down several of FDR’s New Deal programs as unconstitutional. However, the court became more acquiescent after FDR’s attempt at “court packing” in 1936. Bad policy is not necessarily unconstitutional, although in many cases bad decisions do leave unconstitutional laws on the books.

With respect to the commerce clause, insurance has traditionally been regulated by the states. Each state has its own laws and insurance policies are tailored to fit the market of each state. Insurance companies are admitted to do business in each state. For example, State Farm of Georgia cannot sell a Georgia health insurance policy in South Carolina. Therefore, the power to regulate interstate commerce would not seem to apply.

The flip side to this argument is that the Supreme Court has ruled in the past (erroneously in my view) that the interstate commerce clause can be used to regulate intrastate commerce. In Wickard v. Filburn (1942) (http://en.wikipedia.org/wiki/Wickard_v._Filburn), FDR’s New Deal compliant court ruled that a farmer could not grow excess wheat for his own use inside his own state because it affected interstate commerce. It may be time for this decision to be overturned.

In the end, the lawsuit undoubtedly has merit, but we cannot be certain of the outcome given the activist nature of approximately half of the members of the Supreme Court. This is especially true since President Obama has at least two more years in office and may get to make additional appointments. Even with the current makeup of the Supreme Court, four of nine justices do not read the explicit right of the people to keep and bear arms in the phrase “the right of the people to keep and bear arms shall not be infringed.” It is unlikely that they would not see a government mandate to buy health insurance as constitutional.

An indication of the Obama Administration’s realization that they are on very shaky constitutional ground is that they are defending the individual mandate on the grounds that it is a tax, rather than a mandate (http://www.nytimes.com/2010/07/18/health/policy/18health.html). This is in spite of Obama’s promise not to raise taxes in any form on the middle class and claims during the health care debate that it was not a tax. Either they were lying then or they are lying now.

The best way to fight Obamacare is to elect candidates that will vote to reform, replace, and ultimately repeal it. That primarily means voting for Republicans such as Georgia Senator Johnny Isakson, who is seeking reelection this year. It also means supporting Republican candidates in state and local races who will fight Obamacare in the states on constitutional grounds. Electing Republican governors and attorneys-general will keep the constitutional lawsuit alive. Additionally, constituents of Democrats should continue to voice their opposition to Obama’s big government policies and encourage their representatives to join with the Republicans in voting for small government reforms.

Sources:
http://www.rasmussenreports.com/public_content/politics/current_events/healthcare/health_care_law
http://online.wsj.com/article/SB10001424052748704875004575375122374132154.html
http://spectator.org/archives/2010/07/20/suing-obamacare
http://www.heritage.org/Research/Reports/2009/12/Why-the-Personal-Mandate-to-Buy-Health-Insurance-Is-Unprecedented-and-Unconstitutional
http://en.wikipedia.org/wiki/Wickard_v._Filburn
http://www.nytimes.com/2010/07/18/health/policy/18health.html
San Jose CA
July 21, 2010

Photo credit:

renjith krishnan
http://www.freedigitalphotos.net/images/view_photog.php?photogid=721

Tort Reform: The Mississippi Miracle

Tort reform has long been touted as a way to help reduce rising healthcare costs in the United States. Opponents belittle the effects of tort reform and claim that the right to bring almost unlimited lawsuits actually helps society by making products safer.

“Tort” is a legal term for a wrongful act that causes an injury to a person, their property, or their reputation. If a tort is committed, the injured person may be entitled to compensation. To obtain compensation, it is frequently necessary to file a lawsuit. The lawyers who represent plaintiffs in these lawsuits often work on a contingency basis, which means that they are paid a percentage of the money that the jury awards if they win the case.

Tort cases are a major source of income for personal injury lawyers. Consequently, the trial lawyers lobbying groups are major opponents of tort reform. Trial lawyers are second only to unions in providing contributions to the Democratic Party.

In 2004, the trial lawyers lost a major battle in Mississippi. Before 2004, Mississippi was a state known for frivolous lawsuits. Lawyers came from all around the country to file class action suits in Mississippi. Insurance companies were fleeing the state and those that remained were raising premiums or refusing to write policies. The US Chamber of Commerce rated Mississippi 50th in every judicial category. The state was referred to as “the jackpot justice capitol of America” and a “judicial hellhole.”

In 2004, Mississippi passed a tort reform package that resulted in a drastic change in the state’s legal landscape. After five years of political warfare, Mississippi’s legislature passed venue reform, which prevents lawyers from shopping for sympathetic courts, and limits on subjective and non-economic damages, such as pain and suffering. During the same period that tort reform was being passed, Mississippians also elected more judges that limited class action (multiple plaintiff) lawsuits and out-of-state plaintiffs.

The result was dramatic and rapid. Prior to the reform, medical malpractice rates had risen by 20-25%. Many doctors stopped practicing or moved out of state. Some areas were left without obstetricians within 100 miles. Since the reform, rates have not risen at all, and have even decreased by 30-45%. The number of medical malpractice suits has fallen by 90%.

Mississippi’s business-friendly climate has also attracted investment and jobs to the state. Approximately 60,000 new jobs have been created in the four years since the tort reform was passed compared to 30,000 jobs lost in four years before reform. Textron has invested $35 million and Kingsford Charcoal $20 million in the state. Winchester Ammunition returned to the state with a $3.5 million payroll. FedEx built a $1 billion dollar facility. Toyota even built a $1.2 billion, 200,000-worker plant. The Toyota plant is contingent on tort reform remaining the law of the land in Mississippi.

Overall, Mississippi is better off than before tort reform. Unemployment is down to 6% from a high of 9% prior to reform. In 2007, Mississippi’s per capita income growth was 6.7%. This places Mississippi third out of the fifty states.

Tort reform is a proven economic winner. Tragically, due to Democratic election victories in 2006, many states are repealing business-friendly laws and passing new laws, such as a patient bill of rights, that give people additional rights to sue. More lawsuits would have the effect of increasing costs to consumers and contributing to stagnant economic growth.

Tort reform is not about eliminating the right to sue. It is about eliminating outrageous damage awards and frivolous lawsuits. Tort reform does not prevent the recovery of legitimate damages, but it does prevent people from winning a legal lottery over a minor wrong. Tort reform prevents lawyers from looting a company of its hard-earned profits for a minor mistake or technicality.

The US legal system is estimated to cost each American family about $7,000 annually. One Mississippi CEO reported that his company saved $70,000 monthly on its legal bills after the passage of the reforms. Tort costs are spread through society by higher prices for consumer goods, higher insurance premiums, and more expensive health care. Tort reform in more states and at the federal level would save American families thousands of dollars and help to spur economic growth.

Sources:

http://www.opinionjournal.com/cc/?id=110007260
“Mississippi’s Tort Reform Triumph,” Wall Street Journal, May 10-11, 2008