President Obama signs health care overhaul

It took seven minutes for the first lawsuit to be filed against the new federal health care overhaul. Seven minutes from the time that our southpaw commander-in-chief inscribed his signature, until the clerk’s filing stamp was affixed in a federal court in Florida.

All together, 13 state attorneys general filed the suit in the Northern District of Florida. The lead plaintiff was Bill McCollum, Florida’s Attorney General. The defendants are the U.S. Departments of Health & Human Services, Treasury, and Labor. Also named were Kathleen Sibelius, Timothy Geithner and Hilda Solis as the respective Secretaries of those departments. (Virginia filed a separate lawsuit.)

Much will be made in the coming weeks of the causes of action and their relative strength or weakness. Essentially, the suit alleges that the federal government has: violated states’ rights by an unconstitutional expansion of federal power; levied a capitation or direct tax; and mandated that individuals have health insurance coverage or pay a tax penalty. It seeks a declaratory judgment and, of course, reasonable attorneys’ fees and costs.

Having prevailed in being able to alter federal results (in the election context), Florida state officials decidedly did not believe that turnabout was fair play. Don’t tread on me, y’know.

Among other things, the suit claims that the new law “commandeer[s] the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.” And “The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans.”

Florida Attorney General Bill McCollum

Put that way, the new health care law does sound a bit odd. Prohibiting inactivity? Taxing a failure to engage? Entire portions of modern society might be affected. If this law gets its legs under it, idleness and indolence could, well, grind to a halt. The White House forgets, at its own peril, that the sluggish can get tetchy when you alter their immobility.

Well, I leave social engineering and its opposition to the wisdom of other commentators. I’m more interested in the civil practice side of all this. Because this lawsuit and the blinding speed with which it was filed open up brave new cubicles into legal practice.

Now, I’m only mildly naïve, so I know, of course, that this brief was written well in advance of the law’s enactment. The 13 attorneys general, solicitors general, deputies, and outside counsel from Baker Hostetler were able to draft at their leisure—at least, as much leisure as is ever possible in modern multistate complex litigation that challenges prevailing wisdom and warns of dire circumstances. As Witkin instructs, Discontent ain’t easy.

But, just for fun, let’s construct a pretend legal scenario. Let’s do the math on this brief and its seven-minute evolution.

First, let’s assume arguendo that no time was required to transmit it to the clerk’s office. (That’s not ever true, of course, even in electronic filing, but it’s more enjoyable this way.)

Second, let’s assume that no pesky minutes or seconds were consumed in a mad dash to research or to Shepardize. The words, we must believe, sprang whole from the mind of Zeus—and his associates.

So:

5,387 words divided by 7 minutes = x

OK, that may be too easy. I mean, you don’t have to be Louis Brandeis or Potter Stewart to cobble a brief together in seven minutes. This is 2010, man, where lawyers do more and more with less and less (See Downturn). Let’s raise the stakes, using our own experience of harried law practice.

Down in Florida, the group of lawyers had been reclining about, awaiting word of President Obama’s signing of this clearly flawed legislation. They sipped mint juleps (for the principals) and sweet tea (for outside counsel). But as Obama’s hand lifted off the vellum, the attorneys sprang into action.

Mint Julep

Teamwork, as everyone knows, is all when you have only seven minutes. The assembled legal team took to their tasks like gators to a bayou: Facts, Jurisdiction and Venue, Parties, Background, Causes of Action, all were assigned faster than a hurricane sweeps onshore.

But an amateur error awaited. Filing and checking the hours of the clerk’s office is a primary and essential task, but too many lawyers give it little attention, or leave it to an inexperienced colleague. That’s why you never assign the task to out-of-state counsel.

The lawyer thus tasked blithely believed they were to file—in six and a half minutes—in the Gainesville Division, serving Alachua, Dixie, Gilchrist, Lafayette and Levy counties. What an error.

When the senior lawyer pointed out that their court was in the Pensacola Division—serving Bay, Calhoun, Gulf, Holmes, Jackson and Washington counties—pandemonium broke out. Mon Dieu! Screams were heard, a handgun was brandished, and a belle inexplicably swooned upon a couch fortuitously placed beneath her ample bustle. A hound dog was heard bemoaning the injustices of our beautiful blue marble.

Calm was restored by men taking seriously the “General” portion of “Attorney General”—but not before a precious minute was lost to the sands of time.

So:

5,387 words divided by 6 minutes = x

Given the momentous challenge, the team did remarkably well. At minute 6:15, a minor crisis was averted when it was noted that defendants Kathleen Solis and Hilda Sibelius had been transposed. And Wikipedia confirmed that Timothy Geithner’s surname contains an intuition-defying “h.” So confident was the legal team that they briefly debated—and voted down—an additional cause of action for “Spelling That Undermines the Basic Nature of God and Man.” They were high on the law—and loving it.

898 words per minute.

15 words per second.

Wow. Even among a raft of legal luminaries, these gentlemen can draft. Draft, baby, draft.

Of course, the attorneys’ fees and costs statement will likely reflect a bit more than seven minutes, but doff our hats, we must. Whatever the outcome in this states’ rights action, we salute the unwavering focus on swift and sure justice.

Read the Florida filing here

Read the Virginia filing here

The Florida Attorney General’s press release follows:

Attorney General Bill McCollum News Release

March 23, 2010
Media Contact: Sandi Copes
Phone: (850) 245-0150

Florida Attorney General McCollum Sues Federal Government Over Health Care Reform Legislation

TALLAHASSEE, FL – Attorney General Bill McCollum today filed a lawsuit against the U.S. Department of Health and Human Services, U.S. Department of Treasury and the U.S. Department of Labor alleging the Health Care Reform bill signed into law by President Obama this morning is unconstitutional. The bipartisan lawsuit was joined by 12 Attorneys General and is the first challenge of the new law.

“This bipartisan effort by Attorneys General around the country should put the Federal Government on notice that we will not tolerate the constitutional rights of our citizens and the sovereignty of our states to be trampled on,” said Attorney General Bill McCollum. “This law represents an unprecedented encroachment on the liberty of the American people, and I will pursue this litigation to the highest court if necessary.”

The Attorneys General from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota joined Florida’s lawsuit, filed today in the United States District Court for the Northern District of Florida.

The complaint alleges the new law infringes upon the constitutional rights of Floridians and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty. By imposing such a mandate, the law exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution. Additionally, the tax penalty required under the law constitutes an unlawful direct tax in violation of Article I, sections 2 and 9 of the Constitution.

The lawsuit further claims the health care reform law infringes on the sovereignty of the states by imposing onerous new operating rules that Florida must follow as well as requiring the state to spend billions of additional dollars without providing funds or resources to the state to help subsidize the cost of implementation of the law. This burden comes at a time where the Florida faces severe budget cuts to offset shortfalls in an already-strained budget.

Under the new law, Florida will be required to vastly broaden its Medicaid eligibility standards to accommodate upwards of 50 percent more enrollees, many of whom would be required to enroll or face a tax penalty. Florida’s Medicaid program currently consumes more than a quarter of the State’s financial outlays.

A copy of the lawsuit is available online at: http://myfloridalegal.com/webfiles.nsf/WF/MRAY-83TKWB/$file/HealthCareReformLawsuit.pdf 

On Monday afternoon, a press release came out of the United States Attorney’s Office here in Phoenix. It announced “the formation of a Civil Rights Unit to coordinate civil rights prosecution, training and outreach in the state of Arizona.”

 (You can read the complete release below.)

My first thought was: That sounds like an excellent idea.

My second thought was: Didn’t we already have one of those?

Apparently not, and this signals an additional element in the expanded brief of the new U.S. Attorney, Dennis Burke. When we spoke with him in the fall, soon after he had been confirmed, he was very open about the rebuilding—of morale and other things—that had to be done in a post-Alberto Gonzalez Department of Justice.

New U.S. Attorney Dennis Burke, Arizona Attorney magazine, Jan. 2010

When I asked him about the District of Arizona, where the focus long had lain with counterterrorism and immigration, he agreed those would continue to be central to the mission of his office. But he added significant conversation about criminal activity in Indian Country—for a number of good reasons, above and beyond the large land areas in his jurisdiction. Replacing the nation’s first Native American woman with a white male—however qualified—as United States Attorney had to sting the Obama Administration at least a tad. Over the years, the U.S. Attorney’s Office also has harmed its “reservation cred” for its declination letters, in which it declines to prosecute criminal cases there, but provides no rationale. That leaves tribal authorities with the option of pursuing the matter themselves, but with no guidance as to whether the feds thought the case was weak or if they were simply too busy. And if the tribes pursue the case, they can assess far lesser penalties if they win a conviction. Given all that, Dennis Burke has made it an important part of his activities to nurture the relationship with the tribes.

Besides Indian relations, Burke also raised civil rights as an increasing area of focus. Asked if he meant housing, or election violations, or employment, he answered “All of those.”

Was that lip service? Today’s announcement suggests the answer is No.

Call it karma or something else, but the announcement came just hours before a significant ASU Law School lecture. The title of this year’s John P. Morris Memorial Lecture (sponsored by the Black Law Student Association) was “Civil Rights in the 21st Century.” And the speaker? NAACP CEO Benjamin Todd Jealous. I couldn’t attend, but I am hoping the law school taped the speech.

Benjamin Todd Jealous, NAACP CEO

Mr. Jealous, of course, is more than a seriously cool name. He is the youngest leader the organization’s ever had, and a Rhodes Scholar, to boot. Before his current position, he served as director of the U.S. Human Rights Program at Amnesty International. Most impressive to us ink-stained wretches, he also once worked as a newspaper reporter and editor and as Executive Director of the National Newspaper Publishers Association. Let’s hear it for the news! (We like all of the Amendments, but the First does come first …)

So our state was writ large with civil rights today.

Farther east, health care reform also passed out of Congress Sunday in a historic vote—or a historic miscarriage of justice, depending on whom you ask. And civil rights came up there too.

Speaker of the House Nancy Pelosi moved mountains (and horse-traded mountain ranges) to win the Democrats and President Obama a come-from-behind victory. And she even was quoted as analogizing this health care legislation to civil rights legislation.

Speaker Nancy Pelosi signs health care legislation

Hyperbolic? Maybe. But her words came on the heels of out-of-control vitriol by health care opponents spitting on a Black legislator and shouting racist comments as he entered the historic building. That, combined with the size of the legislation and the generation-long changes it could effect, made Pelosi’s analogy less fabulous than it would have been otherwise. So a new law that has to do with insurance premiums and prescription co-pays could be enveloped in the mantle of civil-rights history.

Well, if she’s right, then it’s a civil rights victory unlike any we’ve seen before. This one, for instance, is cheered by large parts of corporate America. Perhaps many business leaders are simply happy to have the debate over and certainty in its place. But others may be pleased at the substance of the law, which aims to control medical insurance costs.

As Monday’s “Marketplace” program reported on American Public Radio, “The stock prices of health care companies showed healthy gains, one day after the House passed historic health reform. Investors apparently think the legislation will be good for the health care industry.”

They may be right—or they may be overstating it. Listen to the story at http://marketplace.publicradio.org/display/web/2010/03/22/pm-health-industry

So cheers to all of us: Props to the U.S. Attorney’s Office (and Dennis Burke) for creating a new division, and invoking the names of hate-crime victims Matthew Shepard and James Byrd, Jr. in the process. And cheers to all those who debated the health care issue freely—thank you, Bill of Rights, and that good old First Amendment!

[Press release follows]

U.S. ATTORNEY ANNOUNCES CIVIL RIGHTS UNIT FOR ARIZONA

PHOENIX – U.S. Attorney for the District of Arizona Dennis K. Burke announced today the formation of a Civil Rights Unit to coordinate civil rights prosecution, training and outreach in the state of Arizona.

The Civil Rights Unit Chief will have district-wide authority on civil rights matters. Burke named Assistant U.S. Attorney Claire Lefkowitz, of the Tucson Office, to spearhead the work of the new unit, and to coordinate efforts with federal prosecutors in the Phoenix, Flagstaff, and Yuma offices of the U.S. Attorney.

“The U.S. Department of Justice is committed to and has had an historic role in upholding the civil and constitutional rights of all individuals, including the most vulnerable members of our society,” said U.S. Attorney Dennis K. Burke.  “The creation of the Civil Rights Unit in Arizona ensures civil rights cases will be given top priority, whether they be the prosecution of hate crimes, or protecting the victims of human trafficking, discrimination based on disability, or civil rights abuses under color of law.”

The Unit Chief will also work in coordination with the District Law Enforcement Coordinator to develop a protocol with law enforcement agencies that investigate civil rights cases in order to ensure cooperation and effective enforcement.  Training will be conducted to inform agencies of enhanced federal statutory authority on civil rights, including the new Hate Crimes Statute 18 USC Section 249, also known as the “Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act,” signed into law by President Obama in October 2009. The new law has a broader reach than preexisting hate crime statutes, and effectively criminalizes violent acts when they occur because of actual or perceived race, color, religion, or national origin of any person. The statute also protects a wider class of victims of hate violence motivated by the victim’s gender, disability, sexual orientation, or gender identify. Previous law required the government prove that a hate-motivated crime be committed to prevent a victim’s participation in federally protected activities, such as voting or attending school.

“Today’s announcement by U.S. Attorney Dennis Burke establishing a Civil Rights Unit will continue to enhance the FBI’s ability to investigate Civil Rights matters,” said Special Agent in Charge Nathan T. Gray, of the FBI Phoenix Division. “The addition of a new Hate Crimes statute will provide the FBI and the U.S. Attorney’s Office the ability to effectively address Civil Rights allegations in the State of Arizona.”

The Unit Chief will also work with a new bilingual Community Liaison to meet with consular officials with responsibility for foreign citizens living in Arizona, as well as other relevant organizations and community groups. 

RELEASE NUMBER: 2010-047(CVU)