Your Tuesday Digital Dump.

 
Hi kids, a lot happening here in sunny South Florida.

Let's get right to it:

1.  Once again The Garvinator delves into the law, this time crisply analyzing the complicated 200+ page health care opinion thusly:  it reminds him of that time Bubba lied about his schmeckle!

(I'm not kidding.)

2.  This has nothing to do with South Florida, but a Manhattan deli can properly claim ownership of the "Heart Attack Sandwich" throughout all of New York (h/t Random Pixels):

Before filing suit, the Heart Attack Grill sent a cease-and-desist letter claiming the sandwiches — the Instant Heart Attack features two latkes filed with corned beef, pastrami, turkey and salami– violated its trademarks for its various “Bypass” burgers.
The “Quadruple Bypass Burger,” by comparison, features four half-pound beef patties, eight slices of American cheese, a whole tomato and half an onion. It weighs in at a whopping 8,000 calories.

Come on, even my mother ("eat, you're too skinny!") would not try to serve me this sandwich:

Good thing there's no obesity epidemic in this country!

3.  11th Circuit opinion upholding bank waiver of arbitration provision in Checking Overdraft litigation by submitting issue to Judge King -- oops!

4.  Spencer's breakfast club interviews criminal defense lawyer Scott Kotler:

Spence, you know how those pictures at Disney World when we were kids always had a big palm tree behind our heads?

Just saying.....

BREAKING -- Broccoli, We Hardly Knew Thee.

Here's the most insightful analysis I've read yet of today's HCR opinion:

On the broccoli beat, Bloomberg Law’s Josh Block finds that the word was mentioned a dozen times in the court’s opinions. There were three mentions by Chief Justice Roberts, five by Justice Ginsburg and four in the dissenting opinion.

The most appetizing quotes are:

From Justice Ginsburg: As an example of the type of regulation he fears, the Chief Justice cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call this concern “the broccoli horrible.”

I suppose swlip will gloat about the Commerce Clause language by the Chief Justice, which is worrisome for the long term in that it echoes the dissent and does not bode well for future tests of federal power (unless it involves gay marriage or drug laws).

Personally, I'm just happy conservatives can go back to complaining about "judicial activism" again -- that was really starting to weird me out.

And finally, in addition to being experts in sophisticated global financial markets, tax policy, the impact of carbon emissions on arctic glaciers, and whether LeBron should have ever left Cleveland, your FB friends are all now suddenly Constitutional Scholars too.

Time to unplug for a while?

So Now Banks Have to Have Signatures on Their Notes?

Oh federal court with all those rules and pesky legal requirements!

Now comes one from Judge Seitz -- banks need to have their notes signed by the borrowers!

Plaintiff has moved for summary judgment because no dispute exists that Plaintiff has a valid First Preferred Ship's Mortgage and because Alvarez is individually liable for payment under the Note. Plaintiff has failed to meet its burden of establishing that no genuine issue of material fact exists. Plaintiff seeks summary judgment based on the terms of the Note. However, Plaintiff has not established that Alvarez signed the Note or that the terms of the Note are the governing term s of the loan. While Alvarez has acknowledged that she is indebted because of the loan, she has not acknowledged that the terms of the Note were the terms of the loan. Thus, Plaintiff has failed to meet its burden.

I know I know, HCR before the Supremes.

Listen, if you're that interested, go pay someone to fight the Civil War wait in line to see the arguments like the rest of the proles.

"We Have a Supreme Court that wants to decide what the law is."

That is everyone's favorite village idiot, Rick Scott, in comments to Bob Harden on Monday, according to the DBR (story not online).

When can this guy go away?

It appears Scott is evading compliance with the Florida Supreme Court's ruling anyways:

Less than two months after the Florida Supreme Court ruled that Gov. Rick Scott could not require agencies to get his formal approval for rules they wanted to enact, a spokesperson said Wednesday the office is still reviewing the proposals — informally.

But a few House Democrats said such action may violate at least the spirit of justices’ 5-2 decision.

“Isn’t this like an end run around the court decision, that you”re subverting the court ruling?” Rep. Franklin Sands, D-Weston, asked Patricia Nelson, deputy director of Scott’s Office of Fiscal Accountability and Regulatory Reform.

 Also, Big Rick has absolutely no contingency plans for Florida in the event the US Supreme Court does not "repeal" Obamacare:

Do you have a plan for the state if the Supreme Court says Obamacare is constitutional?
I am hopeful it will get repealed. If it doesn’t get repealed, it will devastate jobs in our state. Our biggest businesses are hospitality and agriculture, and neither of those industries can afford it. It would also devastate small employers.

 That's comforting!

Your Daily Appellate Court HCR Ruling!

Gather round kids, the 11th Circuit has issued a ruling on HCR.

Let's see who wrote it -- hey, it's a joint opinion by Dubina and Hull!

How special!

And they drop a footnote to explain that this has happened at least twice before in 11th Circuit history, so don't go around thinking there's anything special about it, no siree.

And look at that -- the odd man out, the rugged individualist, Judge Marcus -- he wrote his own dissent!

So now everyone got to write everything they wanted on a matter that will be decided by the Supremes anyway.

And boy did they -- the majority duo wrote a crisp and tight 207(!) page opinion, and Judge Marcus decided to cut his dissent short at the otherwise pithy page 84.

Is everyone happy now?

For those who care about the substance, the Court found the mandate unconstitutional but upheld everything else.

On the mandate's constitutionality, the 11th is now squarely at odds with the always-liberal 6th Circuit, which earlier this summer found the whole enchilada to "hold water," as Vinny Gambino would say.

Someone remind me, what happens again when Circuit Courts split on important Constitutional issues?

Governor Scott Starts Returning Federal Health Care Money!

For those of you looking for a silver lining in Judge Vinson's recent health care ruling, here you go:

In the wake of U.S. District Judge Roger Vinson's ruling that the federal health care legislation is unconstitutional, Florida insurance commissioner Kevin McCarty returned a $1 million federal grant awarded to the state to assist with reforms. The money would have paid for a system to provide information to consumers on the rates of large-group insurers.

"The purpose of this letter is to inform you that after deliberate consideration, I hereby rescind the acceptance of the above-referenced $1 million rate review grant, which occurred in a letter to you dated September 15, 2010. No drawdown of any of the $1 million will occur," McCarty wrote in a letter to the director of the U.S. Department of Health and Human Services' Center for Consumer Information and Oversight. 

This is pathetic.

The court's ruling was vague as to enforcement, perhaps intentionally so.  

And it's obviously an issue in legal flux.

Why not wait for the dust to settle before you start returning monies provided pursuant to a federal statute?

This feels like cheap political theatrics at the expense of underinsured Florida consumers.

Oh hail this is way too depressing for a Friday afternoon, but I have to follow my muse, peoples (I'm paraphrasing Woody....)

Let me get some windsurfing in and see what it does to improve things, and I'll check back in later.

YEAH -- Obamacare Ruled Unconstitutional!!

Ok kids, here is Judge Vinson's 78 page order finding that whole Obamacare thing a bad nightmare, much like the last season of Dallas:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

 Ok, I'm really digging the explicit Tea Party reference.

I stopped caring about the Commerce Clause when I left law school, so I won't pretend to be a sudden expert on it now.

And I'm still analyzing the opinion.

However, on first blush, I think the Judge has written a thoughtful, comprehensive order, one that draws deeply on history and context and which attempts in good faith to tackle the parties' arguments head-on.

This is exactly what a district judge should do, regardless of how one may feel about the outcome.

Say what you want about Judge Vinson, but this comports with my personal experience with him.  He is straightforward and intelligent, tells you exactly what he thinks and where he is coming from, and tries to engage you on the merits without excessive rancor or inflated "judge-itis."

Do Any Tenured Florida Law Professors Think the Health Care Law is Constitutional?

I was interested to read this statement by over one hundred law professors from around the country regarding the constitutionality of the Affordable Care Act:

Given that the minimum coverage provision bears a close and substantial relationship to the regulation of the interstate healthcare market, Congress can require minimum coverage pursuant to the Constitution’s Necessary and Proper Clause. In a landmark decision studied by every law student, the Supreme Court in 1819 explained that the Necessary and Proper clause confirmed Congress’s broad authority to enact laws beyond the strict confines of its other enumerated powers: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end” are lawful, the Court wrote. Since then, the Supreme Court has repeatedly held that Congress, in regulating the national marketplace, can reach matters that when viewed in isolation may not seem to affect interstate commerce.

In 2005, Justice Antonin Scalia explained that the necessary and proper clause gives Congress broad authority to ensure that its economic regulations work. In Justice Scalia’s words, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” Just last term, a majority of the Supreme Court, in an opinion joined by Chief Justice John Roberts, wrote that in “determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

The ACA’s minimum coverage provision fits easily within this framework.

It goes on, in a mildly persuasive manner, from there.

Naturally I was curious to see which professors from our many Florida law schools signed on to this statement, as the list includes national luminaries such as Yale's Jack Balkin, UC Irvine's Erwin Chemerinsky, Chicago's Geoffrey Stone and many others.

So who signed on from our glorious Sunshine State, where nearly 8 million Floridians have pre-existing conditions (boy, we're a sick lot, huh)?

Only FSU's Franita Tolson, who is an Assistant Professor up in Tally (though she's on tenure track and we hope she gets there).

I'm happy to see Professor Tolson voice her opinion, but what the hail happened to the faculties of the University of Miami, Nova, FIU, Gainesville etc.?

Nobody at any of these esteemed institutions has an opinion on one of the more pressing legal issues of the day?

In unrelated news, it seems none other than Steely Dan has written a song to our very own Godwhacker!

Check it out above.

(No word yet on whether an ode to swlip is forthcoming.)

How to Become a Federal Judge.

You know that judge out in Virginia who just struck down the individual mandate in the new health care law?

The one who owns a stake in a GOP consulting firm that has directly worked against health care reform?

Turns out he wrote a memoir(!) in which very candidly explains -- boasts(?) -- about how he got to become a federal judge:

After Congress created a new judgeship for the Richmond Division in the Eastern District of Virginia in 2001, Hudson expressed his interest and picked up the support of the state's two Republican senators.

Hudson's description of the selection process candidly acknowledges its political nature. "Campaigning for a federal judgeship is almost as challenging as running for political office," he writes. "Rather than court voters, aspirants solicit endorsements from influential political activists with close ties to the senators, particularly the activists who raise the big money.

"That is where 20 years of active service to the Republican party, and helping in the various campaigns of each senator, paid dividends and gave me the edge," he said.

It's good to be the King!

"Cohabitators, Homosexuals or Fornicators"

No I'm not describing my circle of friends at Tuesday's terrific judicial reception honoring Judge Huck, but rather quoting from Virginia Governor Robert F. McDonnell's 1989 master's thesis, which denounced various degenerate activities that most of us would consider pretty standard here in sunny South Florida.

This NYT profile of him and Virginia AG Kenneth T. Cuccinelli II, who along with partner-in-crime Bill McCollum have launched the ND FL lawsuit seeking to have the health care bill declared unconstitutional, is pretty fascinating:

Outspoken and unwavering in his opposition to abortion and homosexuality and in support of property and gun rights, Mr. Cuccinelli is a purist among pragmatists. He stands out as a pugnacious culture warrior in a party more eager to court moderate and fiscal conservatives, and in a state whose governor hopes to portray himself as a consensus builder.

“Ken was a tea partier before there was a Tea Party,” said David B. Albo, a Republican delegate from Fairfax County and close friend of the attorney general. “I tend to take my job responsibility as doing what a majority of my constituents want me to do. Ken sees his job as setting a path and trying to explain to his constituents that this is the way we want to go.”

In recent weeks, though, some of Mr. Cuccinelli’s hard stands have become a headache for Governor McDonnell.

Last week, the governor was left to respond to questions about his attorney general after an audio clip surfaced on the Web in which Mr. Cuccinelli, in a recorded telephone conversation offered a legal strategy for testing the notion, popular among certain conservatives, that Mr. Obama was not born in the United States and therefore lacked eligibility to run for president. It was “possible,” Mr. Cuccinelli said, that a person could “challenge” a federal law as illegitimate because “someone qualified to be president didn’t sign it.”

Oy -- this is who you joined in with?

The DBR has a story today in which various legal scholars declare the suit to be more or less bunk:

Bruce Jacob, a Stetson University law professor who teaches constitutional law, said there is always a chance the conservative-leaning U.S. Supreme Court could side with McCollum. But he said arguments cited by McCollum make it sound “like they are grasping at straws.”

“It bothers me they are wasting the time of the country with this kind of lawsuit,’’ he said.

Barry Richard, a Greenberg Traurig shareholder in Tallahassee who was part of the team that represented George W. Bush in the 2000 presidential election recount, said he read the lawsuit and doesn’t think the high court will go along with it. “I don’t see any basis for the United States Supreme Court to say that Congress can’t do this,’’ he said. “This would severely emasculate the power of Congress.’’

See Bill, that's what you get for not hiring Barry!

BTW, you can sign a letter to Mr. McCollum asking him to dismiss his facacta suit here.

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!