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Archive for July 2011

NBA Prepares for Legal Battle

When NBA owners and players convene Monday for their first full-scale bargaining session since the lockout was imposed on July 1, the real news will be unfolding far from midtown Manhattan. The environment necessary for compromise won’t be present in the Omni Berkshire Place hotel conference room that has thus far produced nothing of the sort.

Nearly one month into the lockout, this high-stakes, $4 billion strategy game could soon be shifting gears from negotiations that have been fruitless for two years to what one attorney described as a potentially “nuclear” legal war between the two sides.

If the threat of losing games — or possibly, the entire season — isn’t enough to compel both sides to hammer out a deal, the 2011-12 season will be in the hands of lawyers, judges and a labyrinth of legality. The outcome would be difficult to predict, and the timeframe possibly lengthy, depending on which legal strategies each side pursued.

Although the National Basketball Players Association has never decertified and sought antitrust relief from the federal courts in past labor disputes, the leverage — or threat of leverage — that comes with legal action has helped solve lengthy lockouts and strikes in other sports.

In 1995, Major League Baseball and its players’ union were forced back to the bargaining table, where they ended a 7½ month strike, as the direct result of an injunction issued by then federal district judge Sonia Sotomayor, who is now an associate justice of the U.S. Supreme Court. Most recently, the prospect of a lengthy and ugly antitrust battle persuaded NFL commissioner Roger Goodell and NFLPA executive director DeMaurice Smith to hammer out a new labor agreement that ended that sport’s 4½ month lockout this week.

Labor attorneys say the NBA’s labor impasse differs greatly from both of those cases, and thus, so have the NBPA’s legal strategies — which are coming under fire from high-profile agents. “In the NBA, you are seeing the owners take a position where they want to radically change the way they do business,” said Gregg Clifton, a former baseball agent and now an attorney with Jackson Lewis, high-profile firm representing management in labor disputes. “If somebody wants to radically change the way they do business with you, you better have a really good reason and you’re going to get pushback. … Both sides can be polarized and be strong because neither side has anything happening yet that’s going to affect their bottom lines.”

As with the baseball and NFL work stoppages, this one will have to be solved at the bargaining table. But the leverage forcing each side to give in and negotiate seriously could come from the courts.

For now, the NBPA has decided to pursue its grievances against the NBA through the National Labor Relations Board, where it has filed a complaint alleging, among other things, that the owners have not bargained in good faith. In a meeting last Friday in New York, prominent agents blasted union officials for adopting this strategy as opposed to disbanding the union and filing an antitrust lawsuit, as the NFL players did. But according to labor law experts, the agents are off base.

First off, the injunction issued by Sotomayor that forced the two sides back to the bargaining table in ’95 came as the result of the MLBPA pursuing its case through the NLRB. At the time, given baseball’s long-standing exemption from federal anti-trust law, this was the baseball players’ only legal avenue.

The NFL players could have gone either route during the recent lockout, but chose to decertify and make their case under anti-trust law — partly because they faced a collectively bargained deadline beyond which such action would have been off limits.

The NBPA has both options available to it, and no deadlines or restrictions on when to use them. This is an advantage, labor lawyers say, but deciding between the two paths carries great risk.

“That’s a tough call,” Clifton said. “Do you feel you have a better cause of action through NLRB legally and from the standpoint of timing and chances of success vs. the courts, where it becomes an anti-trust action?”

The distinction is important. When they went the antitrust route, NFL players were tripped up by the 8th U.S. Circuit Court of Appeals, which applied the Norris-LaGuardia Act in striking down a district judge’s injunction that temporarily ended the lockout. In federal antitrust cases, Norris-LaGuardia is the federal statute that forbids federal courts from issuing injunctions in labor disputes.

The law does not apply in labor disputes brought before the NLRB, meaning the NBPA’s current strategy could be its quickest route to an injunction lifting the lockout. If the NBPA is successful in getting the NLRB to issue a complaint against the NBA, the board could follow up by asking a federal judge to reinstate terms of the previous agreement — thus forcing the two sides to engage in serious bargaining. This is how the baseball strike ended in 1995.

To this extent, the NLRB also provides the players with as close to a home-court advantage as they could hope for, given that the 8th Circuit precedent stands in the way of having the lockout lifted through an antitrust action. The NLRB also is decidedly labor-friendly, especially in its current makeup of four Democrat appointees and one Republican.

“If you go with the antitrust action, you’re going to be doing a lot of shopping for interpretation of the Norris-LaGuardia Act before you jump into that circuit,” Clifton said.

The key to the NBPA’s current strategy will be how the NLRB rules on the union’s request for further financial information from the NBA to prove its stated $300 million in annual losses, said Jon Axelrod of Beins, Axelrod, P.C., in Washington, D.C., who has represented unions in labor disputes for 37 years. Larry Katz, the union’s outside counsel, has requested additional financial documents from the owners, including those detailing third-party transactions — where the money goes when a single entity owns the NBA team, the arena and an NHL team — and franchise valuations.

“In my experience as a union lawyer, that stuff would be very valuable to the union in preparing its negotiating position,” Axelrod said.

The NBA has furnished voluminous financial data to the union, including audited financial statements and tax returns. But Katz said the owners have not turned over accounting of third-party transactions or franchise valuations, for which the NLRB could cite the league for bad-faith bargaining.

Third-party details would assist the union in determining how much of certain teams’ losses resulted from internal transactions, as opposed to money going out the door. Franchise valuations would speak to the players’ contention that interest and depreciation costs they are being asked to bear in the form of pay cuts benefited the owners through rising franchise values — which the players do not share in when teams are sold.

“You can use interest to hide profit,” Axelrod said. “You can use certain other expenses to hide profit.”

Over time, through the cycle of various presidential appointees, the NLRB has taken different views on whether such detailed financial information is “reasonable and necessary,” Axelrod said. “It’s difficult to say what the current board would do.”

Problems with the NBPA’s strategy include the possibility that a request for an injunction may not necessarily follow swiftly after the NLRB issues a complaint, and that the board’s investigative pace is notoriously slow. The NFL filed an unfair labor practices charge against the NFLPA in February, and the NLRB never finished investigating it. Katz estimates, and the other labor attorneys agree, that the NLRB is 30-60 days away from deciding whether to issue the complaint against the NBA that could lead to the coveted injunction, though both sides are cautious about trying to predict the NLRB’s timetable.

If the NBPA decided to decertify, the pot of gold at the end of an antitrust case is the possibility of the players receiving treble damages — compensation totaling three times their salaries for being harmed by the lockout — if they eventually won the case, which could go all the way to the U.S. Supreme Court. But that process could take as long as 2-3 years, labor lawyers say, and would constitute “nuclear war” between the owners and players, according to Katz.

“It’s a Pandora box,” Katz said. “I’m scared as heck when I open up a big litigation box, because I don’t know what’s going to come out of it.”

It’s important to note that from the NBPA’s standpoint, decertification may not be a do-you or don’t-you issue, but rather one of timing. Neither side is willing to get bogged down in the federal courts for several years, so the threat of leverage and uncertainty could be more valuable than the outcome itself.

If they do not get a favorable ruling — or any ruling — from the NLRB by mid-September, the players may choose to go forward with decertification at that point. They would likely choose a court outside the 8th Circuit and hope for a more labor-friendly judge and appeals panel. There would be no chance of a decision in time to avoid canceling a portion of the season, but the threat of losing games and losing in court could compel the owners to be more flexible at the bargaining table.

“Timing is everything in life,” Clifton said. “The timing was reached in the NFL because people said, ‘Wait a minute. We’re going to miss games, and this is a $9 billion industry that will be an $18 billion industry by the end of the decade. What are we doing?’”

Glenn Grindlinger, a partner at Fox Rothschild, LLP, who represents management, said the most effective form of leverage for both sides remains “the fact that the season’s coming up.”

“The closer you get to the start of the season,” Grindlinger said, “the more incentive there is going to be for both sides to hash out a deal.”

But both sides also have legal weapons they have not yet deployed that could shake up the negotiations and add to the leverage necessary for a deal.

If the players decertified, lawyers from both sides essentially would be racing to court in an attempt to sue the other side first in a venue they believe will be favorable to them. This “circuit race,” as Axelrod described it, would be a contest of whether the players could file their antitrust suit before the owners sought declaratory judgment in a management-friendly circuit. Whichever side got its lawsuit filed first would set the venue for the case.

The players also have an obscure but potentially useful legal trick up their sleeves. In the 8th Circuit’s NFL ruling, the assenting judges used language that suggested players without contracts — free agents and drafted rookies — should be required to market their services and sign contracts. From a practical standpoint, the loophole is moot; the court said once those players signed contracts, they’d be locked out like everybody else.

But this could provide the NBPA with a narrow anti-trust avenue to pursue on behalf of players who were not under contract as of July 1. Instead of a Tom Brady v. NFL, imagine an NBA anti-trust case with the most prominent free agents (David West, Tyson Chandler, Grant Hill and Shane Battier) — plus the top picks in the 2011 draft (Kyrie Irving and Derrick Williams).

“You’d still have to decertify, but you might have a more focused action,” Clifton said. “… You might be able to challenge the draft that allowed them to be drafted and the antitrust ramifications of it.”

Timing is, indeed, everything. If LeBron James, Dwyane Wade and Chris Bosh had not become free agents last summer, a potential antitrust suit by the NBPA this summer would’ve read like a who’s who of the biggest stars in the league. But the way this lockout is going, consider this grim possibility: Instead of becoming free agents next summer, Dwight Howard, Chris Paul, Deron Williams and Kevin Garnett might very well be antitrust plaintiffs, instead.

That would only happen if the entire 2011-12 season were lost, a catastrophic possibility for which both sides are privately preparing.

“It could happen,” Clifton said. “I hope not, but it’s possible. … When I talked about the NFL, I thought it would end by mid-July and they’d miss one preseason game, at most. Unfortunately, I’m equally pessimistic about the NBA.”

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Health Care Lawsuit Reaches Supreme Court

A conservative law firm asked the Supreme Court Wednesday to strike down the health care overhaul, challenging the first federal appeals court ruling that upheld President Barack Obama’s signature domestic initiative.

The appeal filed by the Thomas More Law Center of Ann Arbor, Mich., said Congress overstepped its authority in requiring Americans to purchase health insurance or pay financial penalties.

The center said that if the Supreme Court ratifies the law, “the federal government will have absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law.”

Last month, a divided three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati rejected the center’s argument in upholding the centerpiece of the law, the insurance requirement.

In addition to being the first appeals court ruling on the landmark law, the 6th Circuit’s decision also was the first in which a Republican-appointed judge, Jeffrey Sutton, voted to uphold the law. President George W. Bush nominated Sutton.

Federal appeals courts in Atlanta and Richmond, Va., also have heard arguments on challenges to the law, but have yet to issue decisions. The federal appeals court in Washington is scheduled to hear argument in yet another health care case in September.

The Supreme Court will not meet again until early fall, and the earliest a health care case would be heard is early in 2012.

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‘Dream Act’ Signed Into Law in California

California Governor Jerry Brown signed into law on Monday a bill allowing illegal immigrants to receive privately funded scholarships to attend the state’s public colleges and universities.

The bill, dubbed the California Dream Act, passed the state Legislature earlier this month and aims at helping illegal immigrants who have earned a high school diploma after attending at least three years of high school in the state.

“At the end of the day, if we’re going to continue as a powerful, equal-opportunity society, we’re going to have to invest in our people,” Brown, a Democrat, said at the signing ceremony in the library of a Los Angeles community college.

The state law is named after a national bill introduced in the U.S. Congress last year to give young, undocumented immigrants who have lived in the United States for at least five years a path to citizenship through college or military service.

The federal bill failed to win passage in December 2010, and its chances have dimmed since a Republican majority took control of the House of Representatives this year.

Critics say the California Dream Act gives illegal immigrants a false promise, because their immigration status will not change after graduating from college, and they will remain unable to find legal employment.

The new law merely makes undocumented students who qualify eligible for private scholarships. Many are unable to otherwise afford more than a two-year degree from a community college.

A separate bill under consideration in the legislature would allow illegal immigrants to qualify for publicly funded scholarships as well.

State law already allows illegal immigrants in California who qualify for admission to a four-year state university to pay in-state tuition rather than the more expensive out-of-state tuition rate.

But four-year institutions are still beyond reach for many undocumented students without financial aid.

Twelve other states also grant in-state tuition eligibility to illegal immigrants based on attendance and graduation from a state high school, according to the National Conference of State Legislatures.

Arizona, Colorado, Georgia, South Carolina and Indiana bar illegal immigrants from in-state tuition benefits.

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Feds Highlight Efforts to Curb Reservation Crime

A year after a federal law gave American Indian tribes more authority to combat crime on reservations, few have taken the steps to enact one of its main provisions — a measure allowing tribes to triple the amount of time tribal members can spend in jail.

The increase in sentencing authority from one year to three years for a single crime under the Tribal Law and Order Act marked one of the most substantial changes for tribal criminal justice systems. But sending people to jail for longer periods means that tribes first must provide public defenders, establish or update criminal codes, and have law-trained judges.

Some have determined they can’t afford it or are content with their current systems that don’t always determine a winner and loser and focus on restorative justice, while others are reserving the authority for only the most serious crimes.

“Tribes are cautiously proceeding, and rightly so,” said Troy Eid, chairman of the Indian Law and Order Commission born out of the act. “If they get it wrong, that’s a violation of the defendant’s constitutional rights, and that would potentially invalidate the whole program.”

President Barack Obama signed the measure into law last July, saying it was an important step in addressing the unique public safety challenges that confront reservations. The measure resulted in the appointment of special U.S. attorneys to ensure violent crimes are prosecuted. It also revamped training for reservation police and aims to improve the collection of reporting of Indian crime data.

U.S. Department of Justice officials highlighted the efforts they’ve made in Indian Country in a call with reporters Tuesday. They said they’ve traveled to sometimes remote areas to hear from tribal leaders on how they can better collaborate to combat crime. U.S. attorneys in South Dakota, Arizona and New Mexico spoke about how their offices have trained tribal police as federal agents, recruited tribal prosecutors to assist in federal cases, helped improve technology in tribal court systems and are working to make sure that major crimes on reservations don’t go unpunished.

According to the federal government, violent crime rates on Indian reservations are more than twice the national rate, and there is an epidemic of domestic and sexual violence in Indian Country, along with high instances of child abuse, teen suicide and substance abuse. Federal officials have also said there is a proliferation of gang activity on reservations, and yet law enforcement recruitment and retention across Indian Country lag far behind the rest of the nation.

“We know that the issues of public safety in Indian Country are daunting and sobering,” said Arizona U.S. Attorney Dennis Burke. “We know we’ve had a lot of successes, and we have a ways to go.”

On the Tulalip Reservation in Washington, tribal officials are preparing to present a proposal to the legislative body next month that would create a new class of 15 felony crimes that include rape and sexual assault of a minor, and are punishable by up to three years in jail, said Chief Judge Theresa Pouley. In the last six months, three sexual assault cases have been filed in tribal court, she said.

“Tulalip wants to maintain that restorative justice code at the same time balance the extended jurisdiction to address really serious crimes,” she said.

Pouley, who also trains tribes on the provisions of the Tribal Law and Order Act, said extending sentences could stretch already scarce financial and personnel resources for some tribal governments, which must then figure out how to house the inmates. The Tulalip Tribes contract with a neighboring county to house anyone sentenced through the tribal court system.

On the Navajo Nation — the country’s largest Indian reservation, extending into New Mexico, Utah and Arizona — officials have not actively talking about lengthening sentences. Any discussion would delve into exactly what Congress intended with the language in the Tribal Law and Order Act, whether the federal government’s idea of due process, fairness and law-trained judges fits the definition that Navajo officials might have, and, foremost, tribal sovereignty, said Chief Justice Herb Yazzie.

“Navajo people, because they are a sovereign nation, will not simply accept wholesale the demands of another government,” he said. “Because reality is that we want to institute and offer a system that administers Dine justice, not some other government’s sense of justice. When you do that, you also have to realize that we still need these systems of the federal government and financing (for) some of these improvements. So it’s a delicate arrangement that we will have to reach.”

The Navajo court system is guided by restorative, rather than punitive justice. It includes peacemaking courts and uses a set of centuries-old traditional tribal laws that all tribal judges must know in deciding cases.

John Dossett, general counsel for the National Congress of American Indians, said tribes have relayed stories to the organization that an enhanced sentence is a good tool for plea bargains and sometimes serves to deter people from committing crimes. But for tribes that are served by outside law enforcement and have no justice system of their own, creating them might be the biggest hurdle.

“There are so many aspects to this, that’s why it takes more time to implement,” he said. “The problem isn’t solved yet, but there is forward motion. Tribes are very interested in continuing to work with the administration and Congress, partly because they’re seeing some successes.

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NY Challenges Defense of Marriage Act

Two days after same-sex marriage became legal in New York, the state’s attorney general has taken legal action challenging the constitutionality of the U.S. law which defines marriage as between a man and woman.

In court papers filed on Tuesday in U.S. federal court in Manhattan, New York Attorney General Eric Schneiderman said the Defense of Marriage Act, or DOMA, violates same-sex couples’ right to equal protection under the U.S. Constitution.

The 1996 law prohibits same-sex couples from receiving marriage-based benefits such as Social Security survivor benefits, health benefits and the right to file taxes jointly.

Schneiderman argued the law intrudes on the state’s right to regulate marriage. On Sunday, gay couples began to marry in New York after it was made legal.

New York is the sixth and largest U.S. state to allow same-sex marriage. Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia also do so.

“By discriminating among married couples based on sexual orientation and sex, DOMA deprives New York of the ability to extend true equality to all marriages valid in the State,” Schneiderman wrote.

Schneiderman made his arguments in support of a case brought by Edie Windsor, a woman who sued the United States last year after an inheritance from her former partner was taxed. Windsor, who was married in Canada in 2007, said she had to pay $350,000 in inheritance tax in 2009 after the federal government refused to recognize her marriage.

Windsor argued she “was forced to pay in violation of the constitutional guarantee of equal protection of the law.”

In February, the Obama administration announced it would no longer defend the Defense of Marriage Act’s section which defines marriage as between a man and woman.

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Saudi Arabia Denies Allegations Against Anti-Terrorism Law

Saudi Arabia denied allegations by Amnesty International that an anti-terrorism law under consideration will be used to suppress dissent in the kingdom, the official Saudi Press Agency reported.

The proposed law will pose “a serious threat to freedom of expression in the kingdom,” Amnesty International said in a statement on its website after reviewing a copy of the draft.

Saudi Arabia “would like to point out that Amnesty’s concerns about this law are baseless,” the news service said today, citing a statement from the kingdom’s U.K. embassy. An anti-terrorism draft law is under review at the Saudi Shoura Council, an appointed advisory body, SPA added.

In Egypt, clashes that erupted in central Cairo between supporters and opponents of the Egyptian military ruling council left more than 150 people injured, Al Arabiya reported today, citing state-run television.

Protesters used knives and swords in the clashes and the army blocked the road leading to the defense ministry, Al Jazeera reported.

Meanwhile in Syria, a train derailed in Homs today while it was on its way to Damascus from Aleppo with more than 480 passengers, most of whom were patients traveling to undergo surgeries, Syrian news agency SANA said. The driver of the train was killed, SANA reported.

“For sure, it is a subversive act,” George Essa, director of the railways authority in Homs, told the private website Syria News, according to Deutsche Presse-Agentur. Syria Protests

The incident took place hours after mass anti-government protests across the country, in which at least nine people were killed, according to the opposition Local Coordination Committees of Syria, DPA reported.

Syria’s Army War College in Homs was struck by explosions in what may indicate divisions within the country’s military, Al Jazeera reported, citing an eyewitness. Thirty soldiers and security personal were injured by “terrorist groups,” the official Syrian Arab News Agency said. The government denied reports that the military was divided.

In Yemen, two girls were killed and a boy was injured when gunmen targeted their house in the province of Taiz, SABA said, citing a military source.

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Alabama Senator Wants Immigration Law Repealed

A state senator plans legislation to repeal Alabama’s new anti-illegal immigrant law that he said Friday already is having an effect on businesses that hire immigrant labor.

The law is draconian and not good for Alabama residents, Sen. Billy Beasley, D-Clayton, said.

House Speaker Mike Hubbard, R-Auburn, said Beasley’s bill is a “non-starter because it won’t pass.”

The law is being challenged in federal court.

“This comes at a time when we simply cannot afford it,” Beasley said.

“There are also many Alabama businesses who hire Mexican workers, and the new law is already hurting them badly, I am told.”

Beasley said road builders, home builders, farmers and other business owners are telling him that they’re already feeling the effect of the law in fewer potential employees.

“I’ve had people tell me they’re leaving Alabama or going to other states or going back to Mexico,” Beasley said.

Hubbard said Republicans promised a strict law to crack down on illegal immigration, and “we delivered on that promise.”

“It has always been against the law to hire an illegal immigrant,” Hubbard said. “No business in any industry should depend on breaking the law to make a profit.”

Beasley said the economic cost of the legislation “will be huge” for state and local governments that will have to spend millions of dollars to enforce it.

“This issue is one that should be handled by the federal government and not by individual states,” Beasley said in a statement.

“While the border between Mexico and the United States should be secured, a path for citizenship must also be provided for those Mexicans in this country without proper entry.”

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Michael Vick Advocating Tougher Animal Fighting Laws

Former Atlanta Falcons quarterback Michael Vick appeared alongside federal lawmakers on Tuesday to push for a stricter animal fighting law.

Vick, who pleaded guilty to federal charges in 2007, served more than a year in prison for fighting dogs at his Virginia home.

Cameras swarmed Vick as he walked into the U.S. Capitol on Tuesday, Channel 2’s Scott MacFarlane reported. Vick is being recruited by animal rights groups who are hoping to use the quarterback to lobby for tougher laws.

Vick and some congressional leaders announced their support of a new federal law that would make it illegal to attend an animal fight. Staging a fight is already a federal felony, but now the target is the spectators who bankroll the fights by gambling on animals.

“It took me going through what I went through to understand the magnitude of the entire situation. I’ve learned so much,” Vick said in the hearing.

In Georgia, it’s only a misdemeanor crime to attend an animal fight, a crime punishable by a $1,000 fine. The new federal law would stiffen penalties and help local police.

“Many of these animal fighting rings happen in rural counties with very small sheriff’s departments that are understaffed and underfunded. By having a federal statute these communities will get the support they need,” John Goodwin with the Humane Society of the U.S. said.

Vick watched a video of children attending a cockfighting ring in Alabama during the news conference. The new proposed law would also make it a felony to bring a child to an animal fight, something that Vick saw before his arrest.

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NJ Gov. To Allow Medical Marijuana

Doctors in New Jersey will be allowed to prescribe medical marijuana after Governor Chris Christie said on Tuesday he will let new legislation originally signed by his predecessor be implemented.

New Jersey will join 15 other states and the District of Columbia in allowing marijuana for medical use, although the New Jersey legislation is more restrictive than elsewhere.

Only patients in New Jersey suffering from specific ailments such as HIV, cancer and multiple sclerosis can be prescribed medical marijuana, and then only after other treatments have failed.

The law also is the first in the nation to prohibit patients from growing their own crop at home.

“This is one of those decisions that’s not an easy one for me as governor,” Christie said at a news conference in Trenton, N.J.

“I had to balance the benefit that will go to citizens in pain versus some potential risks to the folks that we’re authorizing as dispensaries and to state employees,” he said, referring to the possible risk of federal prosecution faced by dispensaries.

In the end, Christie concluded that dispensaries operating within state law were unlikely to encounter problems with federal authorities.

“It’s a risk worth taking in order to alleviate the pain that people are suffering here in the state,” he said.

Marijuana, derived from the cannabis plant, can help suppress pain and nausea in some patients, among other reported therapeutic benefits.

The law was signed by Christie’s predecessor, Jon Corzine, shortly before leaving office in January 2010. After Christie became governor, he delayed the law’s implementation, saying it needed amending.

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States File Another Amicus Against Federal Health Care Law

Texas Attorney General Greg Abbott and attorneys general from 20 other states on Monday filed an amicus brief challenging the constitutionality of President Barack Obama’s federal health care law.

The states’ brief in Kinder v. Geithner, filed in the U.S. Court of Appeals for the Eighth Circuit, argues that the law’s individual mandate — which requires all Americans to purchase health insurance or pay a penalty — violates the Constitution.

“The Patient Protection and Affordable Care Act is an extraordinary law that rests on unprecedented assertions of federal authority, pushing even the most expansive conception of the federal government’s constitutional powers past the breaking point. The Act imposes a direct mandate upon individuals to obtain health insurance, marking by all accounts the first time in our Nation’s history that Congress has required individuals to enter into commerce as a condition of living in the United States,” the brief said.

“The federal government identifies no limiting principle that would prevent Congress from employing that same power to force individuals to engage in any manner of commerce so that the federal government may better regulate it.

“Instead, the federal government embraces a sweeping view of the Commerce Clause — broad enough to reach any subject and encompassing enough to include the power to compel — that would imperil individual liberty, render Congress’s other enumerated powers superfluous, and allow Congress to usurp the general police power reserved to the States.” Read the rest of this entry »