Health Care: The Prognosis June 1, 2010

Essay contributed by David Davenport 

David Davenport

The core issue will be the unprecedented requirement that individuals purchase health insurance or pay a fine. The government will argue that this mandate is allowed because it significantly affects interstate commerce. But if my healthy twenty-year-old child decides not to buy health insurance, there’s no commerce involved. The government may also claim that this requirement falls under its power to tax, but no matter how you label it, the payment by the insurance holdouts is really a penalty.

In addition, the states have a strong argument under the Tenth Amendment, which provides that all powers not given to the federal government be reserved to the states or the people. Nothing in the Constitution gives the federal government power over health care, which has traditionally been a state matter. Nor would Congress find constitutional support to create unfunded mandates or require states to rewrite their Medicare laws, as this law will do.

Ultimately, if the interstate-commerce clause allows the federal government to require people to enter into private health care contracts, what power does it not have? What is left for states? These are serious, if inconvenient, questions that the courts will need to answer.

David Davenport is counselor to the director and a research fellow at the Hoover Institution. He wrote this essay for the Hoover Digest.

To read the entire article:  http://www.hoover.org/publications/hoover-digest/article/34831

Hard Questions for Holder (Washington Times) March 19, 2010

It’s been a rough few months for Attorney General Eric H. Holder Jr., and   he should face more tough questioning when he reports for the Senate Judiciary Committee oversight hearing on Tuesday.

In the legal war on terror alone, he has been under fire for scheduling the trial of Khalid Shaikh Mohammed in civil court in New York rather than in a military tribunal; for Mirandizing the Christmas Day bomber suspect; for trying to relocate Guantanamo detainees where people don’t want them; for dragging his feet before finally revealing at least nine lawyers in his department who formerly represented terrorist detainees; and, most recently, for reporting that he failed to disclose in his confirmation hearings seven briefs in which he participated as a lawyer, including ones involving the war on terror.

Even with health care and the economy as the front-burner issues in Mr. Obama’s first year, no Cabinet officer’s department has generated more smoke than Mr. Holder’s. Senators – even the president himself – should be examining these several problems and asking whether Mr. Holder is really up to the job or, perhaps worse, whether these issues add up to an agenda to tip the legal scale sharply in favor of detainee rights and away from national security concerns.

Let’s start with the latest flaps because, taken together, they seem to raise questions of legal philosophy at the Department of Justice. In November, Sen. Charles E. Grassley, Iowa Republican, asked Mr. Holder to identify department lawyers who may have conflicts of interest for having represented detainees. In a surprisingly cool response, Mr. Holder said he’d consider it and then sat on it for three months. Finally, last month, he provided an incomplete answer, admitting there were at least nine department lawyers who had represented detainees, identifying just two of them.

Then the department acknowledged this week that Mr. Holder had failed to disclose some of his own work on several briefs, including one on behalf of enemy combatant Jose Padilla, during his confirmation hearings as attorney general, calling it an oversight. A case that went all the way to the Supreme Court would seem to be difficult to forget or overlook.

It does seem to be a fair concern why Mr. Holder, who works for a president promising the most transparent administration in history, would stonewall the Senate and even now fail to provide a complete response on who in his department represented detainees and their current responsibilities. Those who questioned his response, however, prompted quite a sideshow as several prominent lawyers came forward to defend the obligation of an attorney to represent unpopular causes. This neatly sidesteps the real question, which is not whether these lawyers acted properly before they came to Justice, but rather, why Mr. Holder chose to hire so many of them and what they are doing now. Believe me, had the Securities and Exchange Commission hired a suite of Fortune 100 general counsels to enforce securities laws or the Environmental Protection Agency a table full of lawyers from oil companies, such questions would be asked.

Other hard questions Mr. Holder should have to answer include why he feels a lawyer with no prosecutorial experience – who as a human rights advocate referred to military commissions as “kangaroo courts” and said freeing terrorists is a legal “assumption of risk” we must be prepared to take – is qualified to represent the department on detainee matters. Or, for that matter, what Mr. Holder’s hiring of these nine lawyers or his signing of Padilla’s brief might tell us about his own view of detainee rights. After all, because some of those briefs were not produced for his confirmation, that was a conversation the senators did not have with him when it counted.

There are two schools of thought about the legal war on terror. One essentially starts from the premise that terrorist suspects, enemy combatants and detainees should not be tried as “criminals” and are not entitled to the full panoply of constitutional rights afforded to U.S. citizens. Instead, they should be tried in military tribunals, with more limited rights. A very different view, held by many human rights advocates, is that terrorist suspects should be treated as one of our own citizens, even at the risk of returning enemy combatants to the field to attack again.

The U.S. Senate, and the American people, have every right to know who is setting policy for the legal war on terror and in which of these directions they are headed. Mr. Holder would do well to bring less foot-dragging and more forthright answers to these legitimate questions when he comes before the Judiciary Committee next week.

To view the article:  http://www.washingtontimes.com/news/2010/mar/19/hard-questions-for-holder/

The DOJ 9 (and still counting) (San Francisco Chronicle) March 5, 2010

With health care dominating the headlines, it was easy to miss 

Neal Katyal, who once defended Osama in Laden's driver, a terrorist detainee, now works at the Department of Justice. Picture credit: Alex Wong / Getty Images

the unfolding drama between Congress and the Obama administration about the legal war on terror. The most recent installment was a remarkable and belated five-page letter from Attorney General Eric Holder to Rep. Chuck Grassley, R-Iowa, acknowledging that at least nine attorneys in the U.S. Department of Justice represented terrorist detainees before joining the Obama administration.

Why is this a problem? Let me count the ways.

First are actual and perceived conflicts of interest, which attorneys are always obligated to avoid. The problem is not that they represented detainees – everyone deserves a defense – but that they are now on the other side. When this happens, attorneys must recuse themselves and avoid handling, or ideally even advising on, the matter. Unfortunately Holder’s incomplete response still didn’t clarify the role of these nine attorneys in Justice Department terror policies and prosecutions.

Second is the appearance of bias or an agenda, that the hens have taken over what is supposed to be the foxes’ den. The Department of Justice is supposed to be prosecuting terrorists, not coddling them. What are we to think if the organized crime unit brings in nine mob lawyers? At least one of these nine was with a human rights advocacy group and has no prosecutorial experience. For an administration that preaches pragmatism and not ideology, it’s at least a question mark, if not a black mark.

Close behind come questions of transparency. President Obama set a high bar here, promising the most open and transparent administration in history. Congress asked for this information three months ago, and Holder said he’d consider it. Yikes.

Three months later, he provided an incomplete letter, not including all the divisions of his department, as had been requested, nor did he note attorneys that came from law firms that handled such cases. This creates more political smoke that the administration does not need and raises further questions about whether Holder is really up to this job.

Finally, and perhaps most important, it adds to the growing concern in Congress and among the public that the Obama administration isn’t handling the legal war on terror properly. A recent CNN Poll shows growing disapproval of this, with those disapproving of the handling of the Christmas bomber, for example, now exceeding those who approve, 47 percent to 45 percent. Like cooking without a nonstick pan, these legal problems are starting to accumulate.

First came the promise to close Guantanamo, only to find that senators don’t want detainees in their home states. Then granting Miranda rights to the Christmas bomber, rather than taking him before a military court where such rights do not automatically apply. Bringing Khalid Sheikh Mohammed to New York for a civilian trial, at a projected cost of $200 million for security alone? What would they do if the United States actually caught  Osama bin Laden: read him his rights and give him a show trial in Washington, D.C.?

Who’s making these decisions? That’s what Congress wanted to know and I’m afraid we’re only beginning to find out.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/03/01/EDSI1C7TL0.DTL#ixzz0xqjeCZ64