Sunday, July 30, 2017

Is the Republican Effort to Destroy the ACA Dead?

Balkinization: Is the Republican Effort to Destroy the ACA Dead? by David Super No. That question can be asked from a procedural perspective, a political perspective, or a practical perspective, but in each instance the answer is “no”. This post takes each of these points of view, explores the possible future of the Republicans’ efforts against the ACA, and identifies the markers that would actually mean that the assault on the ACA is finished.

Cassidy-Graham Amendment Would Cut Hundreds of Billions from Coverage Programs, Cause Millions to Lose Health Insurance | Center on Budget and Policy Priorities

The GOP just does not think that healthcare is a right. -gwc
Cassidy-Graham Amendment Would Cut Hundreds of Billions from Coverage Programs, Cause Millions to Lose Health Insurance | Center on Budget and Policy Priorities 
Senators Bill Cassidy (R-LA) and Lindsey Graham (R-SC) have introduced an amendment to the GOP health bill that they describe as focused on state flexibility and equalizing payments across states rather than cuts.[1] But the amendment would make drastic cuts to both Medicaid and marketplace financial assistance
Specifically, the Cassidy-Graham amendment would:
  • Eliminate premium tax credits and cost-sharing reductions that help moderate-income marketplace consumers afford coverage and care, and eliminate the ACA’s enhanced match for Medicaid expansion starting in 2020.
  • Replace the marketplace subsidies (premium tax credits and cost-sharing reductions) and Medicaid expansion funding with a block grant set at levels well below what would be provided under current law.  States apparently could use these funds for a broad range of health care purposes, not just coverage, with essentially no guardrails or standards to ensure affordable, meaningful coverage.  After 2026 block grant funding would end altogether.
  • Maintain the Senate bill’s provision to convert virtually the entire Medicaid program to a per capita cap, with large and growing cuts to federal funding for seniors, people with disabilities, and families with children.  
As a result of these provisions, the Cassidy-Graham proposal would:
Make deep cuts to federal funding for coverage programs.  Block grant funding in 2020 would be $26 billion, or 16 percent, below projected current law federal funding for Medicaid expansion and marketplace subsidies.  The block grant would grow by only 2.0 percent annually, well below medical cost inflation and even general cost inflation.  By 2026, block grant funding would be $83 billion, or 34 percent, below projected current law federal funding.  States would be forced to sharply scale back coverage as these block grants became increasingly inadequate. 
Moreover, the formula for how much states receive under the block grant would move federal funding from expansion states to non-expansion states, deepening the percentage cuts to funding for expansion states. That would punish states that have been most successful at enrolling low- and moderate-income people in coverage since the ACA’s major coverage expansions took effect.  In fact, Senator Graham said on the Senate floor that funding for California, a state that with a highly effective state-based marketplace and a successful Medicaid expansion, would eventually be cut by 38 percent.  The amendment appears designed to pick winners and losers, rather than guarantee states the funding they need to cover their residents’ needs.  Also, because the funding is conditional on meeting certain criteria related to states’ per capita income, population density, and Medicaid expansion status, some states (such as Florida, North Carolina, and Virginia) would be excluded from between 45 and 70 percent of the funding outright. 
Crucially, funding would end altogether after 2026, leaving states with massive holes in their budgets and no choice but to further reduce access to coverage.

NFL ends concussion research partnership $16 million short of $30 million commitment

NFL ends concussion research partnership $16 million short of $30 million commitment
Back in 2012, the NFL made a heavily publicized $30 million commitment to the National Institute of Health to fund concussion research, which the league wanted the public to see as a commitment it was taking head safety in football seriously.
But as ESPN’S Outside the Lines reported this week, that partnership is set to expire next month even though the NFL — which is projected to reach $14 billion in revenue this year — failed to give the NIH $16 million of the promised funds. In other words, the league fulfilled less than half of its obligations to the NIH.
“The NFL’s agreement with [the funding arm of the NIH] ends August 31, 2017, and there are no current research plans for the funds remaining from the original $30 million NFL commitment,” the NIH said in a statement.
The relationship between the NFL and the NIH has been a contentious one from the start. In 2015, Outside the Lines reported that even though the gift had reportedly been unrestricted, the NFL restricted the NIH from using $16 million of its $30 million grant to fund a Boston University study on the degenerative brain disease chronic traumatic encephalopathy (CTE), a progressive brain disease thought to be caused by repeated subconcussive hits to the head.

Saturday, July 29, 2017

An impeachable offense: Trump Calls For ‘Rough’ Policing, Gives Blessing To Law Enforcement Abuses – Talking Points Memo

Inciting police to violate the rights of persons in custody is an impeachable offense.
Constitution of the United States of America:

Article II, Section 1 "Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Article II, Clause 3 the President "shall take care that the laws be faithfully executed".

Trump Calls For ‘Rough’ Policing, Gives Blessing To Law Enforcement Abuses – Talking Points Memo
"The address, in Brentwood, New York, was ostensibly meant to address the violence propagated by the MS13 gang. But, amid repeated raucous cheering and “thank yous” from the officers in attendance, Trump veered into several extended monologues on the value of being “tough.”
Toward the end of his remarks, the President gave a chilling example of what he meant.
“When you see these towns, and when you see these thugs being thrown into the back of a paddy wagon, you just see them thrown in, rough,” he said, referring to the arrest of alleged gang members. “I said, please don’t be too nice.”
“When you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over,” he mimicked an officer putting a handcuffed person in the back of a squad car, the officer’s hand over the suspect’s head. “Like, don’t hit their head and they’ve just killed somebody? Don’t hit their head?”
“I said, you can take the hand away, OK?” he concluded, to laughter, and then loud applause.
That sentiment characterized much of the red meat speech, in which Trump contrasted himself frequently to his predecessor.
“We have your backs 100 percent,” Trump said near the beginning of his remarks. “Not like the old days."

Thursday, July 27, 2017

Fallows: The shame of John McCain

Tuesday, July 25, 2017

Trump jugen: Boy Scout Jamboree speech

Trump's speech to Boy Scouts: fake news, crowd size and New York's hottest people

Sunday, July 23, 2017

The Impeachable Offense - Lawfare

The entire discussion at the 1787 Constitutional Convention on the suject of impeachment:
The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.
Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined— As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration". Mr. Gerry seconded him—
Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr Govr Morris, it will not be put in force & can do no harm—  An election of every four years will prevent maladministration.
Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors" <agst. the State">
On the question thus altered
N. H— ay. Mas.— ay Ct. ay. (N. J. no) Pa no. Del. no. Md ay. Va. ay. N. C. ay. S. C. ay.* Geo. ay. [Ayes—8; noes—3.]
The Impeachable Offense - Lawfare
by Charles L. Black, Jr.

Editor's Note: In 1974, a law professor named Charles L. Black published an extraordinary brief volume, entitled, Impeachment: A HandbookIt is the finest text on the subject I have ever read. With the subject of impeachment on many people's minds these days, we received permission from Yale University Press to republish the portion of Black's book that discusses the parameters of the impeachable offense. I also asked Jane Chong to write an essay applying the lessons of Black's book to our time. I recommend that readers take the time to read Black's book in its entirety, along with Jane's exceedingly thoughtful treatment of its importance in the age of Donald Trump. 
—Benjamin Wittes

Tribe, Painter, Eisen....He cannot pardon himself

Friday, July 21, 2017

Miller v. Davis - counsel fees awarded against defiant County Clerk

Torts Today: Miller v. Davis - counsel fees awarded against defiant County Clerk

How White House Threats Condition Mueller’s Reality - Lawfare

How White House Threats Condition Mueller’s Reality - Lawfare
by Benjamin Wittes, Quinta Jurecic, Jane Chong
What does the world look like today if you’re Robert Mueller? 
You’ve got a huge, sprawling, immeasurably complicated job, and the President of the United States has just put you on notice of what you already have long suspected: You may not have much time.
A pair of stories published last night by the New York Timesand Washington Post announced that the White House is looking to “undercut” Mueller’s investigation and is “scouring” for information on potential conflicts of interest on the part of Mueller’s team. The stories describe a systematic effort to comb through the backgrounds of Mueller and his office in the hope of finding material damaging enough to merit firing Mueller, requesting the recusal of members of his team, or at the very least discrediting the independent investigation in the eyes of the public.
Inverting the Pyramid: In a normal complex criminal investigation, the prosecutor starts at the bottom of the organizational pyramid and works his or her way up. The prosecutor indicts the drug runners, flips them, goes for the middle managers, flips them, and continues to use each layer to go after the one above—eventually targeting the people at the very top.
A prosecutor investigating the President of the United States, who’s threatening in two ways to nuke the investigation, might not feel the luxury of working up from the bottom of the pyramid. Such an approach takes time, after all. The bottom of the pyramid involves a lot of people whom the president, unlike a crime boss, can pardon. Notwithstanding the fact that pardoned individuals can be compelled to testify, a broad pardon eliminates much of the prosecutor’s leverage in obtaining the truth—leverage that relies on the criminal jeopardy of the underlings. And quite uniquely among criminal investigative subjects in the federal system, the President can also fire his own prosecutor, meaning that time may not be an available commodity. In an environment in which Trump is openly toying with both of these steps, the prosecutor may be tempted to invert the pyramid and focus on presidential conduct first.

Proposed Draft Legislation Clamps Down on Soil Pollution in China | Latham & Watkins LLP - JDSupra

Proposed Draft Legislation Clamps Down on Soil Pollution in China | Latham & Watkins LLP - JDSupra
On 22 June 2017, Chinese legislators released draft proposals to combat soil pollution in China at a bimonthly session of the Standing Committee of the National People’s Congress. The legislation complements the State Council’s ambitious plan to address soil pollution – an area not specifically covered by Chinese environmental law at present. Both  the Council’s plan and the corresponding draft legislation are a response to a series of highly publicised incidents, including one in Jiangsu Province where nearly 500 school students fell ill after exposure to contaminated soil. These incidents have focused public attention on the issue of soil contamination, which had previously received little attention due to the more obvious air pollution issues in Chinese cities.
The proposed law is similar to the United States Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), in that the law requires landowners to investigate soil contamination where it is identified and imposes liability for soil contamination cleanup on the parties responsible for the pollution — or, if the responsible party cannot be found, on the landowner. The proposed law also establishes a pollution cleanup fund for situations in which the responsible party or landowner either cannot be located or lacks the funds to pay. In cases where the contamination occurred prior to the passage of the new law, a landowner held responsible may also apply to the cleanup fund for reimbursement of the remediation costs. In addition, the proposed law calls for regulators to establish tax benefits for soil remediation, standards for soil monitoring, reporting of contamination data, limits on the release of hazardous substances on farmland, and for more stringent environmental impact evaluations of construction projects (including the prohibition of construction on polluted land until the land has been remediated to the applicable standard).
Pollution of farmland is subject to particularly heavy penalties under the proposed law, including fines of up to CNY2 million ($US297,000). These penalties likely are a response to various surveys, including a 2014 government report that concluded 19.4% of China’s farmland is contaminated with heavy metals. Factories found to have illegally discharged pollutions may be subject to seizure or forced to cease operations and, as with the Environmental Protection Law passed in 2014, government officials who fail to enforce the provisions of the proposed law would be subject to administrative penalties. According to Luo Qingquan, the deputy head of the NPC’s environment and resources protection committee, the condition of soils in China is “grim” because soil is the “ultimate receptor” of air and water pollution and can lead to the contamination of food grown in such soil. The Ministry of Environmental Protection has allocated a budget of CNY14.6 billion ($US2.1 billion) this year to fund soil remediation projects, but given the vast acreage of affected farmland already found to be contaminated, addressing the problem on a nationwide scale could cost up to CNY1 trillion.

Monday, July 17, 2017

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor

Image result for tsinghua university school of law
In a new article in the Tsinghua China Law Review Susan Finder, a leading student of the Supreme People's Court, demonstrates the transformation under way in how case law is used by judges in the People's Courts.

Unlike our Supreme Court - whose principal tools are Rules, and case by case analysis, the SPC has a wide range of tools at its disposal.  Guiding cases, model cases, interpretations, responses to inquiries, guidances, etc.
This is not as declaration of judicial independence. Rather it should be understood as a consolidation of power - means for the SPC to bring consistency and improvement to China's massive legal system.  Use of case law is an inevitable product of the increasing transparency  of judicial decisions.  It is best understood as neither a common law system nor a civil law system - despite the civil law roots of China's legal system.

The evolving approach is the product of borrowing but also recognition that the power of the internet is transformative. Directed to post all decisions, the imperative drive to treat like cases alike produces mechanisms that draw on the huge accumulating body of decision-making.  - gwc

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor//
by Susan Finder
***The SPC, carrying out its function to supervise and guide the lower courts, unify the application of law, and improve the quality of justice, selects and publicizes certain of its own cases and those of lower courts in a variety of forms. Guiding cases, about which there is a rich literature in Chinese and English, rank first. As noted above, this article focuses on the role of non-guiding cases and therefore the principal forms through which the SPC makes known non-guiding cases are listed below.
• Cases published in the monthly SPC Gazette (最高人民法院 公报), which take two forms: selected judgments (裁判文书选登) and cases (案例), generally totaling 20-30 annually. The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second are model cases submitted by the local courts (through the provincial high courts), which have been reviewed by various divisions of the SPC. The cases, which have been edited, contain a summary of the important points of the case (裁判摘要). However, there are no formal publicly-available criteria for selection. These cases are now accessible on the SPC’s website.

• Cases published by publications of the SPC such as:
* Selection of People's Court Cases (人民法院案例 选), a monthly publication of the China Institute for Applied Jurisprudence, affiliated with the SPC;
* China Case Trial Highlights (中国审判案例要 览 ), an annual publication of the National Judicial College and the Renmin University of China Law School.

• China Court Annual Cases (中国法院[2016]年度案例), a publication of the National Judicial College’s Case Development Research Center, now with an online platform. The cases that the editorial team from the National Judicial College selected for publication in China Court Annual Cases are also edited and contain an added section called “important points (要旨) following the theory that readers would prefer something easy to read and useful” . • People's Justice: Cases (人民司法——案例). People's Justice is a biweekly publication affiliated with the People’s Court Daily (人 民法院报), but the Cases section is published monthly. The cases published in the Selection of People’s Court Cases are edited and contain a summary of the “important points (要点)” of the case.

Sunday, July 16, 2017

Political Economy of Mass Incarceration

Thursday, July 13, 2017

Silver conviction overturned

Wednesday, July 12, 2017

DJT, Jr. Meeting probably did not violate campaign finance law. ~Jed Shugerman

Iran will not disintegrate. … Lobelog

Tuesday, July 11, 2017

Sunday, July 9, 2017

Iran is a nation where power changes hands peacefully.

Friday, July 7, 2017

Richard Rorty was right

Tuesday, July 4, 2017

Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass? - Lawfare

Lawfare's Jane Chong carefully reviews the opinions generated by the Office of Legal Counsel in the Department of Justice.  That unit advises the President on matters of legality - particularly constitutionality.  Its opinions over the years inform her assessment of the current position of the Justice Department and the stances take by the 119 Members of Congress and others who have sued Trump asserting violations of the foreign emoluments clause. - gwc
Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass? - Lawfare
by Jane Chong (Deputy Managing Editor - Lawfare)

I wrote last November that the Foreign Emoluments Clause “is on its face a national security provision designed to the protect the country from officers too enmeshed with foreign interests.” If the Justice Department’s recent court filing is to be believed, that protection is exceedingly limited. This new position marks a decisive break from the more conscientious approach long espoused by both the Comptroller General and the Office of Legal Counsel (OLC).
At the heart of the emoluments controversy is President Trump’s refusal to liquidate his business holdings. He has instead maintained ownership of the Trump Organization, a multibillion-dollar umbrella company with thousands of domestic and international investments, and placed the assets in a revocable trust managed by his sons Donald Trump, Jr. and Eric Trump. Trump now faces three lawsuits alleging that he is profiting from his business empire in violation of the Constitution. Three days after his inauguration, Citizens for Responsibility and Ethics in Washington (CREW), a government accountability watchdog group, filed the first suit in the Southern District of New York. This month, two more complaints were filed by the attorneys general of Washington D.C. and Maryland and 196 congressional Democrats, in federal district courts in Maryland and the District of Columbia, respectively.
All three suits center on the meaning and scope of the Foreign Emoluments Clause, which provides that “no person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office or Title of any kind whatever, from any King, Prince or foreign state” (U.S. Const. art. I, § 9, cl. 8). Citing Trump's business dealings with state governments and federal agencies, such as its lease on the Old Post Office Building that now houses the Trump International Hotel, two of the suits also allege violations of the Domestic Emoluments Clause. This provision applies specifically to the president and provides that he shall receive “for his Services” a fixed compensation during his tenure and not “any other Emolument from the United States, or any of [the states]” (U.S. Const. art. II, § 1, cl. 7).

Foreign Emoluments: how has the OLC understood it?

Sunday, July 2, 2017

Impeachable Offense: "I Don't Care About My Dignity"

Balkinization: "I Don't Care About My Dignity"
by Gerard Magliocca (Indiana University Law School)

Articles of impeachment vs. Andrew Johnson
Article Ten concluded with the following:
Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office. 

Saturday, July 1, 2017

My Father’s War, and Mine - The New York Times

As a member of the class of 1967 at Holy Cross College I had options to avoid going to war.  It was easy  I was about to marry and we were headed to the Peace Corps and India.  A double exemption with a one year 1-Y to follow while getting a master's degree.  So I did not face the tension Hammet describes.
My Father’s War, and Mine - The New York Times
by Theodore Hammet
I can’t pinpoint what changed my mind. Probably, it was the relentless escalation, the rising death toll and all the destruction with no clear objective. It was increasingly hard for me to envision being a Marine in Vietnam; instead, I could see myself in the lyrics of Bob Dylan’s “Chimes of Freedom,” covered by the Byrds on their first album, in the summer of 1965: “Flashing for the warriors whose strength is not to fight.” It began to dawn on me that if the songs I was listening to were right, then the war must be wrong.
In the class of 1967, we all had to make choices about Vietnam. The privilege of attending Harvard brought many opportunities to avoid the war, including exempt occupations, doctors’ letters (often phony), influence on draft boards and six-month reserve enlistments. These, together with acts of opposition — registering as a conscientious objector, going to jail, fleeing to Canada — meant that only about 40 of my classmates — out of about 1,200 in our freshman class — served in Vietnam, and only two were killed. A total of 22 Harvard men died in the Vietnam War compared with almost 700 in World War II, including two of my father’s roommates.
During a long argument on the telephone in the spring of 1966, I told my father that I was against the Vietnam War and was going to withdraw from the Marine Corps. “You’re spitting on everything I believe in,” he replied angrily.
My father went to war with pride and returned to a hero’s welcome. He and his generation helped to save the world. Since I returned from Vietnam for the first time in 1969, I have become even more convinced that our war there was terribly wrong. Still, I accepted and actually wear the Marine Corps lapel pin given me by my former platoon commander at a Basic School reunion in 2015. I have grown able to appreciate both those who bravely served in Vietnam and those whose actions against the war helped end it sooner than it might have otherwise.
I do not claim to have made the most honorable choices about Vietnam. In 1966 and 1967, I was young and confused and gave in to doubt and fear. If I had it to do over again, I hope I would have been truer to my principles and refused to serve in Vietnam. Over the ensuing years, I argued heatedly with my father about the war, and we never agreed. At the end of one argument, he said that “we’ve come to a parting of the ways.” This was not literally true. I continued a somewhat troubled relationship with him until his death.

The Time I Got Recruited to Collude with the Russians - Lawfare

The Time I Got Recruited to Collude with the Russians - Lawfare
by Matt Tait
I read the Wall Street Journal’s article yesterday on attempts by a GOP operative to recover missing Hillary Clinton emails with more than usual interest. I was involved in the events that reporter Shane Harris described, and I was an unnamed source for the initial story. What’s more, I was named in, and provided the documents to Harris that formed the basis of, this evening’s follow-up story, which reported that “A longtime Republican activist who led an operation hoping to obtain Hillary Clinton emails from hackers listed senior members of the Trump campaign, including some who now serve as top aides in the White House, in a recruitment document for his effort”:
Officials identified in the document include Steve Bannon, now chief strategist for President Donald Trump; Kellyanne Conway, former campaign manager and now White House counselor; Sam Clovis, a policy adviser to the Trump campaign and now a senior adviser at the Agriculture Department; and retired Lt. Gen. Mike Flynn, who was a campaign adviser and briefly was national security adviser in the Trump administration.
I’m writing this piece in the spirit of Benjamin Wittes’s account of his interactions with James Comey immediately following the New York Times story for which he acted as a source. The goal is to provide a fuller accounting of experiences which were thoroughly bizarre and which I did not fully understand until I read the Journal’s account of the episode yesterday. Indeed, I still do not fully understand the events I am going to describe, both what they reflected then or what they mean in retrospect. But I can lay out what happened, facts from which readers and investigators can draw their own conclusions.