The Supreme Court and The Individual Healthcare Mandate

By Beth Ensell, Albany Government Law Review

On March 23, 2010, President Barack Obama signed the Patient Protection and Affordability Care Act (PPACA) into law.  The law added a provision to the U.S. Tax Code, which requires every citizen, national, or alien lawfully in the United States, to maintain “minimum essential coverage” for themselves and their dependents, subject to penalty.[1]  This has been dubbed the “individual mandate” and touted by PPACA naysayers as “socialized medicine.”[2]  The provision also remains the focus of several ongoing lawsuits challenging the constitutionality of PPACA.[3] Continue reading “The Supreme Court and The Individual Healthcare Mandate”

Panel 1 Lincoln, Executive Power & The Modern Presidency

Marisa Floriani, Managing Editor of the Government Law Review Fireplace Blog

Lincoln and Executive Power — Hon. Frank J. Williams, Chief Justice, Rhode Island Supreme Court 

          Hon. Frank J. Williams opened the symposium with “the U.S. suffered an unexpected attack.”  As he described the state of America during war time, he drew parallels between Abraham Lincoln and George W. Bush.  As a member of the audience, I couldn’t help but think – the more things change, the more things stay the same.  Hon. Williams highlighted the difficult legal position any president is placed in during war time.  He brilliantly stated that a doctor gives a sick man medicine that he would not give a well man, and the same logic should be applied for the power a president exerts during war time as opposed to a time of peace.

         During the Civil War, Lincoln increased the army and navy, appropriated money, declared a blockade, and, most controversially, authorized the suspension of the writ of habeas corpus.  These acts required congressional consent; however, Lincoln completely bypassed that requirement.  According to Hon. Williams these were Lincoln’s necessities in order to handle the “northern realities.”  So what was Lincoln’s constitutional basis to suspend the writ of habeas corpus? 

            Hon. Williams described two cases that reflected Lincoln’s view of the Constitution.  First, Lincoln acted then he went to Congress for ratification.  Lincoln had realized he had stretched his power, but Lincoln acted out of necessity.  Second, Lincoln criticized the Albany Democrats for invoking safeguards, for it was Lincoln’s belief that their arguments would have been stronger if the safeguards had been placed during wartime.  Therefore it is clear from Hon. Williams’ discussion that it was Lincoln’s belief that war-time presidents should be allotted certain flexibilities, and Lincoln acted accordingly.

       Although his actions may have eventually been deemed unconstitutional, Lincoln has been forgiven by society.  Does this mean that one day society will forgive George W. Bush for his decisions in war time?  Only time will tell.

  Continue reading “Panel 1 Lincoln, Executive Power & The Modern Presidency”

Vertical (Mis)Communication: “Re-criminalization” of Marijuana in Massachusetts and Newfound Federal Deference to State Marijuana Laws

Stephen Dushko, Staff Writer

On November 4, 2008, the Commonwealth of Massachusetts voted on a ballot question entitled “An Act Establishing a Sensible State Marihuana Policy,” which had the effect of decriminalizing the possession of amounts of marijuana one ounce or less.1 The Act passed by a sixty-five percent majority vote.2 Under the new law, possession of one ounce or less of marijuana is a civil infraction, subject only to a $100 fine and forfeiture of the marijuana; all other criminal and civil penalties are prohibited, with an important exception.3 Previously, possession of any amount of marijuana was subject to imprisonment of up to six months and a fine of up to $500.4 The fact that a majority of voting citizens in Massachusetts favored decreasing penalties for marijuana possession may indicate that the prevailing social norms in Massachusetts, concerning consumption of THC,5 have changed since marijuana was initially outlawed, or it may reflect a recognition that the economic and social costs of labeling marijuana use criminal outweigh the benefits.6 Regardless of the rationale, possession of a small amount of marijuana is no longer an arrestable offense under Massachusetts state law.

Apart from the obvious implications for Massachusetts as a whole, this change in the law has different implications for the localities within the state, and provides an opportunity to examine the interaction with local, state, and federal law.  On the local level, governments that wish to maintain the more stringent set of rules are driven to enact regulations that increase penalties for possession or use of marijuana.  Framingham, Massachusetts, for example, enacted health regulations shortly after the state act went into effect that increased the penalties both for the user and the owner of any public establishment in which marijuana is used.7 Smoking marijuana in public, in Framingham, is now subject to a $50 fine, and the owner of an establishment in which a patron smokes marijuana will pay $100 for the first incident. 8 For the second offense, a $200 fine is imposed and up to $300 for the third.9 While these penalties are certainly not as severe as the previous state law, it is apparent that a majority of the Framingham town board was on the minority side of the Question 2 vote.

At first blush, this looks like a locality rebuffing the decision of the majority of Massachusetts for lessening the penalty for possession.  However, § 32L specifically provides that the political subdivisions of the state may enact ordinances or bylaws to prohibit public consumption of marijuana.10 Framingham is not the only example of a town that has either taken advantage of, or considered taking advantage of, this exception to the new general rule.11 It is also of paramount importance to consider the fact that the general federal prohibition on both consumption and possession of marijuana is still in effect.  The Supreme Court has found this prohibition constitutional and unaffected by state law to the contrary.12 Continue reading “Vertical (Mis)Communication: “Re-criminalization” of Marijuana in Massachusetts and Newfound Federal Deference to State Marijuana Laws”

The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution

Marisa Floriani, Staff Writer

In a New York Times article on December 16, 2005, the world became aware of former President Bush’s decision to wiretap Americans via the National Security Agency (“NSA”) in order to obtain terrorist intelligence.1  Although the NSA had predominantly monitored activity abroad, former President Bush had the NSA screen intelligence within the United States borders without a court order for the first time in its history.2  The New York Times article alerted its readers, “The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices . . . .”3  Why the change?  Former President Bush felt that this was “necessary” in order to accomplish an ultimate goal of counterterrorism.4  Although today’s society is constantly worried about the threat of terrorism, which is not likely to dissipate in the near future, Bush’s decision was criticized because it was inconsistent with the rights our forefathers articulated in the Constitution. 

The Watergate scandal is arguably the initial impetus leading to the enactment of the government’s practice of wiretapping.5  Once the committee reviewing the Watergate scandal had reviewed the country’s history regarding wiretapping, it was clear that there needed to be legislation that did not infringe upon Americans’ rights; the Foreign Intelligence Surveillance Act (“FISA”) sought to balance the need of protecting civil liberties with the need for ensuring national security by allowing the government to wiretap foreign powers abroad to obtain foreign intelligence.6  Continue reading “The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution”