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O’Reilly almost gets it right

Last week, I talked about the turmoil that surrounded Penn State, Joe Paterno and Jerry Sandusky. Last night, Bill O’Reilly dedicated his Talking Points segment to the scandal. Bill O’Reilly (see video above) rightly chastises several people in the scandal for not calling the authorities. Then, in typical Bill O’Reilly fashion, he goes over the top. He basically calls for mandatory life sentences for anyone convicted of child molestation. I do believe that child molesters should receive harsh sentences. I do not believe they should be locked up forever. I do believe in redemption. I do believe that some people can change. I do believe that we should give them that opportunity. I am aware of the dismal record of rehabilitation.

Finally, I have to mention that Bill O’Reilly mentions that Penn State has “done the right thing by cleaning house.” Mike McQueary was/is the assistant coach who reportedly saw Jerry Sandusky molest a child in the showers. As far as I know, Mister McQueary is still employed at Penn State. So, Penn State did not “clean house” as thoroughly as Bill O’Reilly suggests. (I almost completely agreed with O’Reilly. I’m not sure if this is a time for celebration or personal introspection.)

This Penn State situation is truly awful. Resolution will not be quick. Every time it appears that things are moving in the right direction something else happens. There are allegations of Sandusky “pimping out” some of the young boys to high-class donors. This is kind of the sensational claim. There is also the District Judge, Leslie Dutchot, who used to volunteer for Sandusky’s charity, the Second Mile. She did not recuse herself from the case. It would seem to me, in this high profile case that a judge should reveal any connection that she had with coach Jerry Sandusky. Not doing so is a lapse of judgment. In this case which features nothing but huge lapses of judgment it would seem that we don’t need any more.

By |2011-11-15T13:47:57-04:00November 15th, 2011|Legal, Sports|2 Comments

Let the Lawsuits Begin – Health-Care Reform

Back in March, I had a very long post on the commerce clause of the Constitution. It seems that a lot of the health-care debate focused around what the commerce clause actually meant. Basically, the Constitution says that Congress has the power to regulate commerce among the states (Article I, Section 8). That’s about it. It doesn’t specifically say what kind of commerce or how to regulate it. The Constitution simply says that Congress has the power. So, as we know, several states banded together and challenged the constitutionality of healthcare reform. Well, the first verdict is in. For now, health-care reform is constitutional. (This will not be the last challenge of healthcare reform. There are several cases in the courts. This is just the first verdict. I think it is clear that this case will end up in the Supreme Court.)

From Scotus-Blog:

A federal judge in Detroit, in a broad ruling upholding Congress’s power to require all Americans to buy health insurance or pay a penalty, decided Thursday that the mandate is necessary to prevent the “extinction” of the nation’s entire health care insurance market.  U.S. District Judge George Caram Steeh said the requirement was well within Congress’s power to regulate commerce among the states.  The decision is the first by a federal court to rule directly on the constitutionality of the buy-or-be-penalized provision of the sweeping new health care reform law.

But Judge Steeh refused to accept that view of what the insurance mandate is.   “Far from ‘inactivity,’” the judge wrote, “by choosing to forgo insurance [the challengers] are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants.”

This “cost-shifting,” the opinion added, “is exactly what the Health Care Reform Act was enacted to address.”  Thus, he rejected the argument of the challengers that he would have to go through “metaphysical gymnastics” in order to find a link between a failure to buy insurance and Congress’s power to regulate the interstate market for health insurance.

“There is a rational basis to conclude,” the judge said, “that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance….The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic.  These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.”  Those are the economic effects Congress had in mind, the judge found. (more…)

By |2010-10-08T10:46:23-04:00October 8th, 2010|Healthcare|Comments Off on Let the Lawsuits Begin – Health-Care Reform

Ending Discrimination (Update)

I’m sorry, but the phobia or contagion that has swept California (and the nation) is completely baffling to me. I don’t understand how you go to the ballot box and say we should discriminate against this class of people. I do understand from a religious standpoint that some religious institutions would not want to marry gay couples. That’s fine. On the other hand, from a state standpoint, the state should not be in the business of institutionalizing discrimination.

Court Decision.

From Balkinization:

The following appears today (in slightly edited form) on the New York Times Subject to Debate website, along with contributions from Kenji Yoshino and Eugene Volokh:

Today’s federal district court decision striking down California’s same-sex marriage ban may or may not be upheld on appeal. But it shows why it matters what district courts do, even though the Supreme Court will have the last word. That Court may uphold state bans on same-sex marriage, but the district court’s opinion will make that harder to do.

District Judge Vaughn Walker turned in a virtuoso performance, taking the obvious weaknesses of his position as author of an opinion that was sure to be appealed, and turning them into strengths.

District court conclusions of law always get examined anew by the appeals courts, first the federal Courts of Appeals and, if it can be persuaded to take the case, the Supreme Court. There’s no reason to feel confident that there are five votes on the Supreme Court to legalize same-sex marriage throughout the United States. (When I try to count the votes of which I’m sure, I have trouble getting to one.) District courts do, however, get to find facts. And appellate courts, because they don’t get to see the witnesses and assess their credibility, are supposed to accept the facts as the trial court found them.

So if the Supreme Court reverses the district court’s decision that same-sex couples have a right to marry, it will have to do it in the teeth of Walker’s factual findings that same-sex marriage is good for gay people and the children they raise (one out of five same-sex couples in California are raising children), that there are no discernible differences between same-sex and opposite-sex couples, that “domestic partnerships” offer fewer benefits than marriage and irrationally stigmatize same-sex relationships as inferior, that recognition of same-sex couples’ right to marry does no detectable harm to heterosexual marriages, and that the campaign for Proposition 8, which outlawed same-sex marriage in California, relied on prejudice and vicious antigay stereotypes, such as the idea that gay people are dangerous to children.

Judge Walker carefully avoided resting his holding on any controversial proposition of law, such as the idea that gay people should be regarded as a specially protected minority under the Fourteenth Amendment. Instead, he relied on law already laid down by the Supreme Court. He held that Proposition 8 lacked a rational basis, because the “facts” that were invoked in its defense were manifestly false. His job was made easier by the remarkable incompetence of Proposition 8’s defenders in managing their listed expert witnesses, most of whom never testified at all. An appeals court that wants to ignore his findings of fact – something that can be done only if the trial court’s findings are plainly erroneous – will find very little support in the record.

The Supreme Court gets to say what the law is. But it has to accompany its judgment with a reasoned opinion. I don’t envy the judge who has to write the opinion overturning Walker’s decision, while treating these findings of fact with the deference that is normally appropriate for appeals courts.

By |2010-08-05T07:25:37-04:00August 5th, 2010|Civil Rights|Comments Off on Ending Discrimination (Update)
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