In the Spotlight

Florida and 19 other states challenged the constitutionality of ObamaCare. The government sought to dismiss the case (Florida v. Sebelius). On October 14, a federal district court judge in Florida refused to dismiss the case. 



In the opinion, the judge did throw out some of the challenges made by the states, but some challenges remain.


1. The Commerce Clause argument remains.

This argument holds that Congress didn’t have the authority to pass the individual mandate under the Commerce Clause of the U.S. Constitution. Since the Court isn’t making an official ruling on the merits, it would have been absurd to dismiss this claim (not that it has stopped other courts). Here’s what the Court said:



At this stage in the litigation, this [Commerce Clause challenge] is not even a close call. I have read and am familiar with all the pertinent Commerce Clause cases….

The Court strongly agreed that the case involved "inactivity" and novel questions. The judge clarified that the "novelty" didn’t necessarily mean the individual mandate is unconstitutional, but the judge’s opinion suggests a strong likelihood that he won’t buy the argument that the Commerce Clause gives Congress the power to force people into buying health insurance.



2. The tax argument was deemed moot.

The Court dismissed the argument that if the penalties for not buying health insurance are deemed to be a tax, those taxes are unconstitutional. The Court deemed the argument moot. 



This is good news. One of the ways, arguably, that Congress could have had authority to pass the individual mandate was based on its taxing power. The Court made it very clear that this is a non-issue because the penalties aren’t taxes at all, but penalties:



I need not be concerned with the issue. As previously explained, it is quite clear that Congress did not intend the individual mandate penalty to be a tax; it is a penalty.

In my view, there’s a lot to be happy about–I think the Court got a lot right. As I have said, the legal fight against ObamaCare will come down to the Commerce Clause issue. At least with this district court judge, I don’t expect the individual mandate to survive.

Should Ex-Felons Be Allowed to Serve as Sheriffs?

In the upcoming election on November 2, voters will be asked to decide whether ex-felons can serve as sheriffs. Such a change would require an amendment to the state constitution.

The knee-jerk response would be to say of course ex-felons shouldn’t serve as sheriffs. This is a question that deserves a lot more attention than a knee-jerk response, however.

  1. As a general matter, any change to the state constitution should be made rarely, and only in matters of significant concern. There has not been one instance, at least according to sheriffs who have been interviewed, where a sheriff with a felony has won an election. That hardly constitutes a problem.

  2. Such an amendment is insulting to future voters. The public is more than capable of deciding whether someone should serve as a sheriff. An outright ban may prevent a legitimately qualified person with wide support from seeking the position. If in the event "the ax-murderer" is released from prison and runs for sheriff, the public is bright enough to vote against that candidate.

  3. The amendment is overbroad and covers all ex-felons. As we saw in Britt v. North Carolina, in which a nonviolent ex-felon was unconstitutionally prohibited from possessing a firearm, not all ex-felons pose the same level of risk. A nonviolent ex-felon who is a model citizen for decades could pose less of a risk than someone who never committed a crime — there is no rational basis for such a prohibition.

  4. We often claim that this country (and state) believes in second chances–this type of ban would certainly demonstrate the opposite.

  5. There are implications as it relates to firearm possession when an ex-felon runs for sheriff. An ex-felon in North Carolina may not be allowed to possess a firearm, and that would apply to sheriffs. It also is not necessarily true, however, that a sheriff must possess a firearm for the position — reasonable restrictions on firearm possession may be an appropriate action and make more sense than a blanket constitutional ban on any ex-felon from serving as sheriff.

    Furthermore, passing a bad law to compensate for an even worse law (the firearm ban) is the opposite of what needs to be done. The law with respect to firearms needs to be changed back to how it was not that long ago to make it much easier for ex-felons to exercise their constitutional rights to bear arms

Conclusion: The proposed ban simply goes too far. Before rushing into such a drastic action for a non-problem, the legislature should look into what other steps could be taken to address any potential risks that may exist.

 

Quick Takes

Man sues for wrongly being deported

A mentally ill Georgia man sued the U.S. government for deporting him to Mexico as an illegal immigrant when he was in fact born in North Carolina.

Mark Lyttle, 33, of Griffin, Ga., seeks unspecified damages and new safeguards to protect the rights of U.S. citizens and people with mental disabilities subject to potential deportation.

Amazon.com sues North Carolina over privacy rights

It’s a federal lawsuit over Internet privacy that the judge said boils down to a three-letter word: All.

Were North Carolina tax collectors violating constitutionally protected speech when they requested "all information for all sales to customers with a North Carolina shipping address" during an audit of Amazon.com?

 
Everything that Americans Once Knew About Home Mortgages — But Should Ask

Americans are discovering the concept of foreclosure and the loss of a home in a very real and disturbing way. Despite the rhetoric from Washington and sensationalist media, the process of resolving defaulted mortgages is moving ahead, one reason why the U.S. will not be Japan. But we have all forgotten the experiences of the 1930s when it comes to home foreclosure.

We seem to be moving from voluntary foreclosure moratoria put in place by banks for public relations purposes in 2010 to unilateral state law foreclosure moratoria like those put in place during the 1930s in 2011. States such as Michigan are considering "new" laws to limit foreclosures by creditors. But all Americans are also experiencing a journey back to the 1930s, a journey of remembering and one that is teaching this writer something new each day.