Constitution does not forbid health care bill, says legal expert

The Supreme Court should affirm the constitutionality of the Affordable Care Act, contends Washington University in St. Louis law Professor Greg Magarian, JD, because the act fits comfortably within a proper understanding of the federal-state balance of power.

Magarian, a constitutional law expert, says the basic argument against the constitutionality of the health care bill is that some parts of the bill, most notably the requirement that people purchase health insurance, exceeds Congress’ power to regulate interstate commerce.

Magarian

“This argument has two levels to it,” he says. “The first has to do with precedent: the court over the past 15 years has found two congressional acts, one that banned possession of guns near schools, and another that created a civil cause of action for victims of rape and sexual assault, to exceed the Commerce Power.

“The second is related but has to do with first principles of constitutional law: allowing the federal government to do what it has done here simply encroaches too far on state power.”

Magarian says that the first level of the argument is fairly easy to get past.

“The two cases I referred to, United States v. Lopez and United States v. Morrison, involved narrow federal laws that the court found not to have anything to do with economic matters and thus not to have any bearing on interstate commerce,” he says.

“The health care bill obviously isn’t like that. Health care is an interstate market; health insurance is an interstate market,” Magarian says.

“This is, by its critics’ own account, a huge piece of legislation with broad sweep and enormous consequences. It simply isn’t anything like the laws struck down in Lopez and Morrison.”

According to Magarian, what is unusual about the health care bill is that it requires people to buy commercial insurance.

“The federal government has never really done this before,” he says. “State governments do it for auto insurance, so the argument goes that this is something that is appropriate for states to do, but not the federal government.

“That argument, however, doesn’t make logical sense. Purchasing insurance is commerce. I’m quite confident that, as a matter of constitutional law, the federal government could take over auto insurance regulation. That wouldn’t be very practical, but Congress could do it, because there’s nothing about a purchase mandate that exceeds the concept of ‘interstate commerce.’

“A purchase mandate may offend libertarians as a matter of individual rights; but of course that offense should apply just as strongly to state requirements that people purchase auto insurance.”

Magarian says that the argument that this bill simply goes too far in encroaching on state authority is a harder argument to resolve, because of course it’s completely relative.

“The important point here is that the Constitution doesn’t squarely answer the question of how far federal power can go,” he says.

“The Constitution enumerates the powers of Congress, but the most important of those enumerated powers, the power to regulate interstate commerce, has grown almost all-encompassing by its own terms. If you take the commerce power on its own terms, the health care bill passes constitutional muster easily, for the reasons I described above.

“But if instead you’re committed to the idea that the structure of the Constitution somehow implies specific limits on how we can construe the enumerated powers of Congress, then maybe this goes too far. This is ultimately a political argument, and it’s a political discussion that we need to have at critical moments.”

Magarian objects to the challengers’ argument that the Constitution clearly forbids the health care bill.

“That’s just unsustainable,” he says. “If the Supreme Court strikes down the health care bill, it will be a deeply political decision. I’m not saying that exceeds the Supreme Court’s power, but I think we need to acknowledge the political essence of the challenge if we’re going to have an honest discussion of it.

“I take the commerce power at face value, so I believe the court should reject the challenge and sustain the health care law without breaking a sweat.”

Do what you love. (Steve Jobs Speech @ Stanford)

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Heres a great read i came across this morning.

'You've got to find what you love,' Jobs says

This is the text of the Commencement address by Steve Jobs, CEO of Apple Computer and of Pixar Animation Studios, delivered on June 12, 2005.

I am honored to be with you today at your commencement from one of the finest universities in the world. I never graduated from college. Truth be told, this is the closest I've ever gotten to a college graduation. Today I want to tell you three stories from my life. That's it. No big deal. Just three stories.

The first story is about connecting the dots.

I dropped out of Reed College after the first 6 months, but then stayed around as a drop-in for another 18 months or so before I really quit. So why did I drop out?

It started before I was born. My biological mother was a young, unwed college graduate student, and she decided to put me up for adoption. She felt very strongly that I should be adopted by college graduates, so everything was all set for me to be adopted at birth by a lawyer and his wife. Except that when I popped out they decided at the last minute that they really wanted a girl. So my parents, who were on a waiting list, got a call in the middle of the night asking: "We have an unexpected baby boy; do you want him?" They said: "Of course." My biological mother later found out that my mother had never graduated from college and that my father had never graduated from high school. She refused to sign the final adoption papers. She only relented a few months later when my parents promised that I would someday go to college.

And 17 years later I did go to college. But I naively chose a college that was almost as expensive as Stanford, and all of my working-class parents' savings were being spent on my college tuition. After six months, I couldn't see the value in it. I had no idea what I wanted to do with my life and no idea how college was going to help me figure it out. And here I was spending all of the money my parents had saved their entire life. So I decided to drop out and trust that it would all work out OK. It was pretty scary at the time, but looking back it was one of the best decisions I ever made. The minute I dropped out I could stop taking the required classes that didn't interest me, and begin dropping in on the ones that looked interesting.

It wasn't all romantic. I didn't have a dorm room, so I slept on the floor in friends' rooms, I returned coke bottles for the 5¢ deposits to buy food with, and I would walk the 7 miles across town every Sunday night to get one good meal a week at the Hare Krishna temple. I loved it. And much of what I stumbled into by following my curiosity and intuition turned out to be priceless later on. Let me give you one example:

Reed College at that time offered perhaps the best calligraphy instruction in the country. Throughout the campus every poster, every label on every drawer, was beautifully hand calligraphed. Because I had dropped out and didn't have to take the normal classes, I decided to take a calligraphy class to learn how to do this. I learned about serif and san serif typefaces, about varying the amount of space between different letter combinations, about what makes great typography great. It was beautiful, historical, artistically subtle in a way that science can't capture, and I found it fascinating.

None of this had even a hope of any practical application in my life. But ten years later, when we were designing the first Macintosh computer, it all came back to me. And we designed it all into the Mac. It was the first computer with beautiful typography. If I had never dropped in on that single course in college, the Mac would have never had multiple typefaces or proportionally spaced fonts. And since Windows just copied the Mac, its likely that no personal computer would have them. If I had never dropped out, I would have never dropped in on this calligraphy class, and personal computers might not have the wonderful typography that they do. Of course it was impossible to connect the dots looking forward when I was in college. But it was very, very clear looking backwards ten years later.

Again, you can't connect the dots looking forward; you can only connect them looking backwards. So you have to trust that the dots will somehow connect in your future. You have to trust in something - your gut, destiny, life, karma, whatever. This approach has never let me down, and it has made all the difference in my life.

My second story is about love and loss.

I was lucky – I found what I loved to do early in life. Woz and I started Apple in my parents garage when I was 20. We worked hard, and in 10 years Apple had grown from just the two of us in a garage into a $2 billion company with over 4000 employees. We had just released our finest creation - the Macintosh - a year earlier, and I had just turned 30. And then I got fired. How can you get fired from a company you started? Well, as Apple grew we hired someone who I thought was very talented to run the company with me, and for the first year or so things went well. But then our visions of the future began to diverge and eventually we had a falling out. When we did, our Board of Directors sided with him. So at 30 I was out. And very publicly out. What had been the focus of my entire adult life was gone, and it was devastating.

I really didn't know what to do for a few months. I felt that I had let the previous generation of entrepreneurs down - that I had dropped the baton as it was being passed to me. I met with David Packard and Bob Noyce and tried to apologize for screwing up so badly. I was a very public failure, and I even thought about running away from the valley. But something slowly began to dawn on me – I still loved what I did. The turn of events at Apple had not changed that one bit. I had been rejected, but I was still in love. And so I decided to start over.

I didn't see it then, but it turned out that getting fired from Apple was the best thing that could have ever happened to me. The heaviness of being successful was replaced by the lightness of being a beginner again, less sure about everything. It freed me to enter one of the most creative periods of my life.

During the next five years, I started a company named NeXT, another company named Pixar, and fell in love with an amazing woman who would become my wife. Pixar went on to create the worlds first computer animated feature film, Toy Story, and is now the most successful animation studio in the world. In a remarkable turn of events, Apple bought NeXT, I retuned to Apple, and the technology we developed at NeXT is at the heart of Apple's current renaissance. And Laurene and I have a wonderful family together.

I'm pretty sure none of this would have happened if I hadn't been fired from Apple. It was awful tasting medicine, but I guess the patient needed it. Sometimes life hits you in the head with a brick. Don't lose faith. I'm convinced that the only thing that kept me going was that I loved what I did. You've got to find what you love. And that is as true for your work as it is for your lovers. Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do. If you haven't found it yet, keep looking. Don't settle. As with all matters of the heart, you'll know when you find it. And, like any great relationship, it just gets better and better as the years roll on. So keep looking until you find it. Don't settle.

My third story is about death.

When I was 17, I read a quote that went something like: "If you live each day as if it was your last, someday you'll most certainly be right." It made an impression on me, and since then, for the past 33 years, I have looked in the mirror every morning and asked myself: "If today were the last day of my life, would I want to do what I am about to do today?" And whenever the answer has been "No" for too many days in a row, I know I need to change something.

Remembering that I'll be dead soon is the most important tool I've ever encountered to help me make the big choices in life. Because almost everything – all external expectations, all pride, all fear of embarrassment or failure - these things just fall away in the face of death, leaving only what is truly important. Remembering that you are going to die is the best way I know to avoid the trap of thinking you have something to lose. You are already naked. There is no reason not to follow your heart.

About a year ago I was diagnosed with cancer. I had a scan at 7:30 in the morning, and it clearly showed a tumor on my pancreas. I didn't even know what a pancreas was. The doctors told me this was almost certainly a type of cancer that is incurable, and that I should expect to live no longer than three to six months. My doctor advised me to go home and get my affairs in order, which is doctor's code for prepare to die. It means to try to tell your kids everything you thought you'd have the next 10 years to tell them in just a few months. It means to make sure everything is buttoned up so that it will be as easy as possible for your family. It means to say your goodbyes.

I lived with that diagnosis all day. Later that evening I had a biopsy, where they stuck an endoscope down my throat, through my stomach and into my intestines, put a needle into my pancreas and got a few cells from the tumor. I was sedated, but my wife, who was there, told me that when they viewed the cells under a microscope the doctors started crying because it turned out to be a very rare form of pancreatic cancer that is curable with surgery. I had the surgery and I'm fine now.

This was the closest I've been to facing death, and I hope its the closest I get for a few more decades. Having lived through it, I can now say this to you with a bit more certainty than when death was a useful but purely intellectual concept:

No one wants to die. Even people who want to go to heaven don't want to die to get there. And yet death is the destination we all share. No one has ever escaped it. And that is as it should be, because Death is very likely the single best invention of Life. It is Life's change agent. It clears out the old to make way for the new. Right now the new is you, but someday not too long from now, you will gradually become the old and be cleared away. Sorry to be so dramatic, but it is quite true.

Your time is limited, so don't waste it living someone else's life. Don't be trapped by dogma - which is living with the results of other people's thinking. Don't let the noise of other's opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition. They somehow already know what you truly want to become. Everything else is secondary.

When I was young, there was an amazing publication called The Whole Earth Catalog, which was one of the bibles of my generation. It was created by a fellow named Stewart Brand not far from here in Menlo Park, and he brought it to life with his poetic touch. This was in the late 1960's, before personal computers and desktop publishing, so it was all made with typewriters, scissors, and polaroid cameras. It was sort of like Google in paperback form, 35 years before Google came along: it was idealistic, and overflowing with neat tools and great notions.

Stewart and his team put out several issues of The Whole Earth Catalog, and then when it had run its course, they put out a final issue. It was the mid-1970s, and I was your age. On the back cover of their final issue was a photograph of an early morning country road, the kind you might find yourself hitchhiking on if you were so adventurous. Beneath it were the words: "Stay Hungry. Stay Foolish." It was their farewell message as they signed off. Stay Hungry. Stay Foolish. And I have always wished that for myself. And now, as you graduate to begin anew, I wish that for you.

Stay Hungry. Stay Foolish.

Thank you all very much.

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신영복 선샘님도 그런 말씀을 하셨다.

세상을 바꾸는 것은 (소위 머리 좋은 사람들 보다는) 바보라고

Darren's wife told,

believe in Him, not in your husband.

blood chocolate the dark side of valentines day

Posted By Suzanne Merkelson Monday, February 14, 2011

While there will always be those who would rather chuck those chalky candy hearts than eat them with their sweetheart on Valentine's Day, anti-V-Day sentiments usually focus on how big, evil corporations make couples spend unnecessary cash on each other and how single people hate themselves. But how about the global implications of the holiday?

While examples of romantic gifts gone wrong like conflict diamonds are unfortunately already ubiquitous, some groups are spending this Valentine's Day raising awareness about the global impact of the cocoa trade. This year the focus on cocoa is especially relevant thanks to an ongoing political crisis in the world's biggest cocoa supplier: the Ivory Coast, which produced 1.2 million tons of chocolate's main ingredient last year. Avaaz, an activist group, has been pushing Hershey, Nestle, Cargill, and Cadbury, to boycott Ivorian cocoa, the trade in which is helping to prop up President Laurent Gbagbo's pariah regime.

The European Union's sanctions on the Ivory Coast's ports extend to cocoa. Last month, Alassane Ouattara, the internationally recognized winner of the most recent presidential election, embargoed cocoa exports for a month, in an attempt to cut off support to Gbagbo. He's threatened to extend the ban if Gbagbo doesn't leave office.

Another activist group, Green America, is pushing for increased awareness of the use of child labor in cocoa production. According to the U.S. State Department's 2009 Human Rights Report on the Ivory Coast, nearly a quarter of children between the ages of 5 and 17 who lived in cocoa-growing regions had worked on a cocoa farm, often in hazardous conditions. Green America suggests that buying Fair Trade chocolate can help combat child labor, as well as support small farmers and lessen environmental impacts.

Meanwhile, according to Reuters, cocoa futures prices have risen more than 20 percent since Ivory Coast's disputed Nov. 28 election. And the continuing ban in the Ivory Coast means prices are likely to continue to rise.

This year, instead of blood diamonds, chocolate … whatever, try giving your special someone a hug instead. It just might be sweeter.

Chevron Turns Tables on Ecuador Plaintiffs; Sues Them - Law Blog - WSJ

By Ashby Jones

The crazed litigation between Chevron Corp. and plaintiffs over alleged oil pollution in Ecuador on Monday got just a little bit crazier.

The oil giant turned the litigation upside-down by filing suit against the plaintiffs.

The suit, filed in Manhattan federal court, accuses the plaintiffs, their lawyers and other members of their legal team of conspiring to manufacture evidence, intimidate Ecuadorian court officials and withhold evidence from U.S. courts. Clickhere for the story, from the WSJ’s Ben Casselman; here for the complaint; here for Chevron’s press release. Click here, here, here, here, here, and here for previous LB posts on the case.

The suit is yet another twist in an epic 18-year-old legal battle that pits one of the world’s biggest oil companies against residents of Ecuador’s Amazon region. Those residents are suing Chevron in Ecuador, seeking to hold the company responsible for billions of dollars of environmental damage they say was caused by Texaco Inc. Chevron, which inherited the lawsuit when it bought Texaco in 2001, says the suit is little more than an elaborate shakedown attempt.

“The intent of the misconduct has been to extort a multi-billion dollar payment from Chevron through fabricated evidence and a campaign to incite public outrage,” the company said in a statement Tuesday.

The plaintiffs, however, said Chevron’s suit was an attempt to distract attention from the evidence of oil pollution in Ecuador. A ruling in that case is expected sometime this year.

“Chevron’s latest action in this 18-year-old litigation is nothing short of legal intimidation by a reckless corporation,” plaintiffs’ spokeswoman Karen Hinton said in a statement.

The suit is just the latest in a series of aggressive legal maneuvers by Chevron. At the company’s request, judges across the U.S. have ordered the plaintiffs to turn over a trove of emails, internal memos, videos and even the private diaries of their former lead U.S. attorney, Steven Donziger.

In a statement Tuesday, Donziger’s attorney, Gerald Lefcourt, called the suit “a cynical bid to buy cover.”

Chevron’s lawsuit was filed under the Racketeering Influenced and Corrupt Organizations act, known as RICO. Although best known for its criminal provisions used to take down Mafia kingpins, RICO also allows individuals and companies to pursue civil suits if they can prove they have been harmed by a “criminal enterprise.”

The suit names as defendants Donziger and the 47 named plaintiffs, as well as their Ecuadorian attorneys and several scientific experts that have worked on the plaintiffs’ behalf.

A Very Short Comment on Kiobel

by Julian Ku

I’m dashing off to China in a few hours, but I couldn’t resist a brief post on the Second Circuit’s denial of rehearing on Kiobel v. Royal Dutch. Does anyone doubt this case is headed for the Supreme Court? Which is not to say that I disagree with the panel majority on the merits. indeed, I have offered a full-scale defense of the majority’s position in a recent issue of the Virginia Journal of International Law here. I will have more thoughts soon, but for now, here is the abstract.

This Article challenges the widely held view that the Alien Tort Statute (ATS) imposes liability on private corporations for violations of customary international law. I lay out the modern origins and development of this cause of action in U.S. federal courts and argue that doctrine rests on shaky, indeed illusory, analytical and jurisprudential foundations. Despite the absence of a well defined norm of customary international law that imposed liability upon private corporations, courts, when they even considered the validity of the claims, built a consensus around the fact that no norm existed forbidding the imposition of liability on private corporations. This doctrinal approach was particularly questionable in light of (Sosa) the Supreme Court’s position that recognition of causes of action under the ATS be limited to situations involving violations of norms that are specific, universal, and obligatory. (Legal) Finally, I argue that the rise of this flawed consensus reveals that our system of federal courts is particularly ill-suited to the type of independent lawmaking that modern ATS doctrine has enabled up to this point. (Policy argument) These developments indicate that courts should adopt a restrictive approach to corporate liability under the ATS going forward.