FBA 30th Anniversary Reception Tonight!

I'm spending all day getting ready for the big FBA reception tonight (David has photos here).

For me that means the usual -- face painting, signed Brett Barfield jersey, mani/pedi at the Hyatt.

I'm also trying to come up with something funny to say about Egypt.

This is going to be HUGE!

Jews For Judges!

Florida AG Bill McCollum today filed a suit in the ND FL seeking to have the new health care reform bill declared unconstitutional.

It's a hodgepodge of overheated rhetoric for the most part, though buried in there is a somewhat plausible 10th Amendment and Commerce Clause challenge.

As noted barrister Vincent Gambini once asked, "does this argument hold water"?

Writing for the conservative Federalist Society last year, former HHS officials Peter Urbanowicz and Dennis G. Smith said it might:

If Congress were to invoke its Commerce Clause authority to support legislation mandating individual health insurance coverage, such an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behavior that does not constitute interstate commerce: United States v. Lopez,10 invalidating the application of the Gun Free School Zones Act of 1990 to individuals and United States v. Morrison,11 invalidating certain portions of the Violence Against Women Act. In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.

While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction. The decision not to engage in affirmative conduct is arguably distinguishable from cases in which Commerce Clause regulatory authority was recognized over intra-state activity: growing wheat (Wickard v. Filmore)12 or, more recently, growing marijuana (Gonzales v. Raich).13 Reliance on the Commerce Clause to justify the constitutionality of an individual mandate might be susceptible to an “as applied” challenge from individuals who (1) never access the health care system or (2) are able to pay for their health care without using insurance, because the government could not claim an impact on interstate commerce of providers and insurers as a result of uncompensated care.

An individual mandate also presents issues under the First Amendment’s Free Exercise Clause and the Fifth Amendment’s Taking Clause. Given the uncertainty with how an individual mandate would comport with religious beliefs regarding health care choices, the Senate Finance Committee policy outline suggests creating an exception to the health insurance mandate for “religious reasons.” It still leaves open, however, the question of whether the compelled purchase of health insurance constitutes the “taking” of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.

On the other hand, Simon Lazarus, writing for the liberal American Constitution Society last year, said the Constitutional issues are seriously overblown:

Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals. No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum.

Given that the individual mandate does not kick in until 2014, is there a ripeness problem as well?

Oh well, while we cogitate on all this it is time to fete the judges (again).

Put on your best schmooze-face and I'll see you tonight!

Another Judicial Reception!! (Yawn)

Well I don't know about you, but I'm getting ready for tonight's big Judicial Reception, which means I have prepared the following to do list:

1. Immediately down two large dry Gin Gibsons;

2. Track down and punch Brett Barfield.

3. Find the one judge willing to speak to me (Sam Slom?) and unleash new self-aggrandizing anecdote that reveals my wit, trial skills, wealth, humor, A-type dominance and general good taste.

4. Listen to similar self-aggrandizing anecdotes and think to myself how it's all total bullcrap.

5. Count other people's money.

6. Pretend to remember that guy's name.

7. Kiss Melanie Damian (professionally, of course!).

8. Sneak into photo op of Judge Moreno and Bob Josefsberg.

9. Kiss Melanie Damian (did I already write that?).

These Are A Few Of My Favorite Things...

They were all there last night, my mischpuka!

You know, by virtue of my position I am obligated to attend pretty much all of these bar functions, which vary in quality and can be anywhere from painful to mildly pleasant depending on my mood and dry Gibson intake.

Still, I think the Young Lawyers Section puts on one of the better judicial receptions, with a nice turnout and surprisingly good food.

The mood lighting and open bar made for perfect canoodling, and I was doing pretty well with a certain unnamed sweetie before a hulking Gargantuan showed up and blew the whole thing.

Curse you Randy Kroner!

Tod Aronovitz Is A Mensch.

So I thought the Federation reception was pretty good for this type of event.

Lots of judges, some very touching speeches (Judge Gerstein introduced his family and longtime staff, to much applause), and Randy Kroner.

What more can you ask for?

Did you all catch this moving story about Tod Aronovitz' fight for justice for Leonard Krys:

On Nov. 30, 1991, Krys boarded a Lufthansa 747 in Miami, headed to a seminar in Frankfurt, Germany. About an hour out, off the Georgia coast, severe chest pains hit and he turned gray.

The pilot refused to divert or return to Miami. In legal filings, Krys described how a flight attendant forced him back to his seat after he lay down in the aisle, how some passengers complained that they couldn't see the movie because he kept raising his arms, and how other business-class passengers groused about not being able to smoke.

`HE REALLY SUFFERED'

Although a German gynecologist on the plane gave him nitroglycerin tablets, Krys spent nine hours gasping, sweating and clutching his chest.

''He really suffered,'' his wife said. The episode destroyed much of his heart-wall muscle.

''He was bedridden for months and lost his business,'' Sebastian said.

Krys won a lawsuit against Lufthansa in Miami federal court -- a non-jury trial -- which the 11th Circuit Court of Appeals upheld. The airline argued that the incident should have been classified as an accident, per the Warsaw Convention, capping his payout at $75,000.

The United States Supreme Court refused to hear the airline's appeal, and in 1999 awarded Krys and his wife $3 million.

''As a result of his seven-year legal battle . . . domestic carriers for the first time installed defibrillators onboard all their flights,'' said Miami attorney Tod Aronovitz, who represented Krys.

Several lawyers had turned down the case before Krys found Aronovitz, who said he saw ``an honest and sincere man who had undergone a nightmare. . . . He was a man with a very positive attitude toward life, and a pleasure to represent.''

Krys ''filed the lawsuit for all the right reasons,'' Aronovitz said. ``He was looking for an apology and to get them to be more customer-friendly.''

See, what do I always say -- you do well by doing good.

Judicial Receptions Are For Lovers.

So who else is going to the Federation Judicial Reception tonight:

This year’s Judicial Reception will recognize three outstanding legal professionals in Miami, including the Honorable Joseph P. Farina, who will receive the Community Service Award; the Honorable Norman S. Gerstein, who will be honored with the Lifetime Achievement Award; and Richard C. Milstein, Esq., recipient of the Honorable Theodore “Ted” Klein Special Recognition Award.

I don't know about you, but I'm bringing a complete set of the Zloch/Moreno memos.

You never know when you need some good cocktail conversation material, right?

Seriously, congrats to those being honored, and thank you for your service.

Off to the FBA Judicial Reception.

Well I'm just about done for the day and soon I'll be heading over to the Hyatt to hobnob with many of you and also Brett Barfield.

Actually, I believe the ticket contractually obligates you to mingle with Brett.

I kid I kid -- Brett's a great guy (darn adhesion contracts!).

See you there!