Thursday, December 30, 2010

One Man's Opinion Of The Repeal Of DADT.

Comrades, Colleagues, and Patriots:

I urge you to read the excellent report by Eugene Koprowski entitled "Vets Protest Plan Opening Military To Homosexuals," on the Lame Duck Democrat Congress' destruction of "Don't Ask/Don't Tell" in favor of open homosexuality in the armed forces:

As a former enlisted man who joined the Army at the age 17, as do many recruits, I know about the enormous power of non-commissioned and commission officers over the lives of those in the enlisted ranks. I think it is unconscionable for members of House, Senate, and the White House to congratulate themselves on voting to compel young enlisted men and women to serve under openly practicing homosexual non-coms or officers, including predatory homosexuals, who may have a sexual rather than military interest in them, and who have enormous power to retaliate if their advances are rejected.

Just how does a young man or woman subject to military discipline, culture, and control, protect himself or herself, and seek redress, from unwanted sexual interest, advances, or assaults? A member of the military in the ranks is often at the mercy of non-coms or officers, including in duty assignments which can not only be the worst of unwanted duties but assignments which can put them in harm's way at risk of loss of limbs or life.

Simply stated: Military life is not civilian life. A victim of "sexual harassment," predation, or actual assault in the military cannot respond to such sexual abuse as can a person in civilian life. Enlisted personnel cannot, without great fear of retaliation, report a non-com or officer for homosexual misconduct. A member of the military cannot respond to an advance by a homosexual non-com or officer with crude language, or threats of physical action that would be used in a civilian situation. A member of the military cannot physically ward off unwanted homosexual contact by a non-com or officer without risk of court martial for a major crime, i.e., "assault on an officer." A member of the military cannot file a complaint with local police, or with local, state, or federal agencies enforcing anti-discrimination laws. A member of the military cannot sue a homosexual molester, or the predatory homosexual's employer, i.e., the military branch in which the victim serves. A member of the military cannot simply "quit and get another job" if subjected to unwanted homosexual attention by a superior, as a civilian can if harassed by a supervisor. Military personnel are in the their military branch for the duration of their period of enlistment, even if a homosexual clone of Chester the Molester is their platoon sergeant, First Sgt., or an Officer. One can't "resign" from the military because of unacceptable working conditions, including predatory homosexual superiors.

Consider: Just what does a 17-year-old heterosexual recruit, male or female, do when a 35-year-old same-sex predatory non-com or officer decides to join that 17-year-old in the shower, or bed, or latrine, or field tent, or common area, and not only "tell" about but act out his or her homosexuality?

For one personal example of homosexuality in the military, even when it was forbidden, when I was stationed at Ft. Bliss in Texas, I was dating a bright, young, woman as young as I was, who joined the Womens Army Corps because she grew up in extreme poverty in the South and thought the WAC would provide her with opportunities. Instead, she begged me to marry her to get her out of the WAC, which was possible then, and quickly divorce once she was out. Why? Because, even though she was not personally a victim -- she visibly had a man to protect her -- she couldn't take the almost nightly attacks on young WACs by older lesbian non-coms. In the barracks of Ft. Bliss in that Vietnam-era, such attacks were not silent affairs. Anyone who served in such barracks will understand what I mean about the acoustical effects of sexual activity.

I didn't marry that fine young woman as she asked, so she could escape from predatory homosexual female non-coms, but I have never forgotten her, or her anguish, anxieties, and disgust, at being caught in a situation in which she was under the control of predatory homosexual WAC non-coms and could not extricate herself from that situation. We even strolled about the WAC area arm-in-arm to make a display of our relationship and her heterosexuality, making it clear that she was attached to a man, if not engaged. She informed me that she deliberately told the other women that while I was a nice guy to her generally, I had a violent temper and was wildly jealous about her. Who knew what I might do if she was molested?

Truth was, at 17, she wasn't making it up. Like many others coming to the Army from some very rough streets in a Midwest steel town, I was a wild man; resistant to orders and barely controllable even under military discipline, which I admit I often observed in the breach. My one stripe was pulled off so often I stopped sewing it on and attached it with velcro--easier for the sergeant to pull off. Had I been advanced upon or assaulted by a homosexual in the Army, including a non-com or officer, at that still-wild age, there would have been mayhem, the consequences be damned. What are young heterosexual men and women in military service to do now that open homosexuality is not only not forbidden, it is approved?

I reflected much on the memory of my relationship at Ft. Bliss with that decent young WAC from the South who abhorred the homosexual reality she was trapped in, when my own elder daughter elected to follow in the footsteps of her great- grandfather, her grandfather, and her father (me) and join the military at 17 , right out of high school, in order to serve her country in this time of war against terrorism. She is the fourth generation in America and all four generations have served. Had the military by Act of Congress made acceptable and even advocated as a norm the kind of homosexual conduct I had witnessed pertaining to my WAC girlfriend described above, I would have done my best to dissuade my daughter from joining the service rather than risking that kind of homosexual degradation.

Does any one of those liberal "progressives" who voted to impose open homosexuality in the military seriously believe that homosexual predators can be kept out of the military, or controlled in it? Have the female members of House and Senate considered the impact on young women who will be exposed to predatory lesbian non-coms and officers, of which there is no shortage? Does anyone seriously believe that predatory homosexuals, male or female, will not be attracted to the armed forces, or remain in, with all those young "targets of opportunity" in the ranks, and Congress approving of open homosexuality?

Consider, especially, those troops in combat zones, and their parents and loved ones back home worrying about them. Just how much confidence can they have that their lives and limbs will be equally valued and defended if their officer or non-com, or fellow troop, is having a homosexual affair with one or more of the other troops? Can they have confidence that they are not at risk if some of the troops are in homosexual relationships with each other, or with non-coms or officers? Will non-coms and officers, or troops, who have a homosexual interest or relationship with one or more of the troops, not act to save their "significant others" before other troops? Can anyone say with confidence that a homosexual in a sexual relationship with a troop will not act to save that troop first, or otherwise favor that troop so as to keep him or her out of harms way as much as possible? In that regard, do men and women, no matter how decent, not act first to save their own spouses or children, rather than someone else's spouse or child, in a disaster, accident, or other life-threatening situation? Why would anyone think homosexuals would not act in the same way when the object of their homosexual love is the one at risk?

Liberal "progressives" are great at imposing on American citizens policies which cannot affect them. DA/DT is a prime example: Most in Congress modernly have not served in the uniform of their country. The present President of the United States never deigned to serve. He is only the second president of the modern era not to serve, other than liberal progressive Bill Clinton. Ironically, it was Clinton who in fact established DA/DT in his regime. Clinton never served, and distinguished himself, it should be remembered with disgust, by chatting on the phone with a member of Congress about troop decisions while being serviced below by Monica Lewinsky in the Oval Office. Why should anyone be surprised that such liberal "progressives" as Obama, the President Who Bows From the Waist, and Clinton, President Fellatio, would be in favor of elevating anal and oral intercourse to a norm in the military

We are told by the same Democrat Liberal Progressives who have destroyed DA/DT that open homosexuality in the military will not be a problem, including as to unit cohesion, putting enlisted men and women at risk, and that they can control homosexual predators. Really? Just look at Liberal Progressive Portland, the Principality of Political Correctness, which reportedly strongly supports abolition of DA/DT. Portland could not even keep its predatory homosexual Mayor Sam Adam from preying on a 17-year-old male intern in the City Hall Mens Room in the now infamous Beau Breedlove affair. What a field day such a homosexual predator would have in the closed military circumstance now that open homosexuality is to be the military norm.

Those voting for abolition of DA/DT and for the norming of open homosexual conduct as acceptable in the military, all those politicians in House and Senate and the President-Who-Never-Served, are preening in their self-righteousness in establishing a military policy which will never affect them, and is unlikely to affect their sons and daughters, since the progeny of those liberal "progressive" legislators are unlikely to have an economic incentive to join the armed forces.

I believe that the incoming 112th Congress should repeal this Lame Duck Democrat Liberal Progressive destruction of DA/DT. Such fundamental changes in the military culture, and the Military Code of Justice, and leave it to the military to decide what to do and how to do it. The the most important voice in the ultimate decision should be the members of the military most immediately affected, -- combat troops.

The ultimate decision should not be made by liberal self-defined "progressive" politicians, bureaucrats, self-interested predatory homosexuals like Portland's Progressive Mayor Sam Adams, or military personnel far from combat and unlikely to have to depend on a homosexual with a sexual interest in him or her or in some other troop with whom they may have a homosexual crush or be a bedmate.

Further, unless and until the action of the Lame Duck Obama-Reid-Pelosi 111th Congress is repealed, every member of the House and Senate, as well as Obama, He Who Bows From The Waist, and his White House gaggle of liberal "progressives" creating their Brave New Homosexual Military World, should be compelled to shower daily with the homosexual Barney Frank in the Congressional gym. If they won't do that, then they should not inflict a similar fate on members of the American military, and their families.

Indeed, Americans should repeal the Lame Duck Democrat DA/DT destruction in the 112th Congress, and repeal of them in House and Senate who voted for it, and real him who so gushingly signed it, in the 2012 election.

In support thereof, I urge you again to read the report in by Eugene Koprowski on the growing response of troops and veterans to open homosexuality in the military:

(Life Member and Judge Advocate, Riverside Post 79; Past Commander District 21 (Cal.); Director and Attorney, Defense of Veterans Memorials Project of The American Legion Department of California.*) [*For purposes of identification only. The views expressed herein are solely those of Rees Lloyd and not any person, organization, or entity he may otherwise represent.)

Monday, December 13, 2010

ObamaCare Ruled Unconstitutional By Virginia Federal Judge.

RICHMOND - A federal judge in Virginia ruled 13 December 2010 that a key provision of the nation's sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama's signature domestic initiative.

U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.

"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. Hudson indicated there was no need for him to enjoin the law and halt its implementation, since the mandate does not go into effect until 2014.

The ruling comes in a case filed by Virginia Attorney General Ken Cuccinelli II (R), who said he was defending a new state statute that made it illegal to require people to carry health insurance in Virginia.

"I am gratified we prevailed," Cuccinelli said in a statement. "This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution."

Federal officials responded that they are confident the statute will ultimately be upheld. A victory for Cuccinelli at this early legal stage means no more for the law's fate than previous rulings that have found the opposite, they have argued.

"We are disappointed in today's ruling but continue to believe - as other federal courts in Virginia and Michigan have found - that the Affordable Care Act is constitutional," Tracy Schmaler, a spokeswoman for the U.S. Department of Justice, said in a statement. "There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law, and we are confident that we will ultimately prevail."

At the White House, spokesman Robert Gibbs pointed to the other rulings in favor of the individual mandate. "We are confident that [the individual mandate] is constitutional, he said. "We disagree with the ruling."

According to a new Washington Post-ABC News poll, a slim majority of all Americans - including almost all Republicans - oppose the health-care reform law. But the legislation's detractors are split on whether and how much of it should be rolled back.

Overall, 52 percent of those polled oppose the overhaul to the health-care system; 43 percent are supportive of it. Fully 86 percent of Republicans are against the legislation; 67 percent of Democrats support it. Independents divide down the middle, with 47 percent in favor and the same number opposed.

Most of those who oppose the health-care changes - 59 percent - want the law repealed, but 38 percent would prefer a "wait and see" approach. Democrats who oppose the law generally support waiting to see how the law operates, while most Republicans would prefer to see it repealed.

Republicans, though, are divided about whether the pullback should be a total repeal or only a partial one. Among Republicans opposed to the health-care package, 39 percent want a complete repeal, and 32 percent want to cancel parts of the law.

In large part, the mixed approach to amending the legislation reflects high Republican support for components of the legislation.

The Virginia suit is one of 25 legal challenges to the federal law wending their way through the federal courts across the country. In two other lawsuits, judges sitting in Michigan and Lynchburg, Va., have found that the same provision of the law passed legal muster. A third judge in Florida is also weighing constitutionality of the individual mandate in a suit jointly filed by 20 states.

The statute's constitutionality will ultimately be determined by the U.S. Supreme Court.

The ruling by Hudson, an appointee of President George W. Bush's, was widely anticipated based on tough questions he lobbed at Obama administration lawyers in oral arguments in his Richmond courtroom.

But the legal defeat will deal a significant political blow to the law, cheering those who have predicted its demise will come from adverse legal rulings rather than congressional repeal.

The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.

He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.

A senior administration official has called that route "very unusual," noting that another suit is already pending before the Fourth Circuit, but declined to take the issue entirely off the table.

Friday, December 10, 2010

Was Justice Served In The Webster Smith Case? Is Justice Just Us?

A final judgement has been entered in the Case of Cadet Webster Smith. He fought a good fight; he kept the faith; and, he exhausted his judicial remedies.

Hard cases make bad law. In this case, the facts were not so hard to distinguish as the defendant was of the wrong persuasion.


No. 10-18
Title: Webster M. Smith, Petitioner
United States

Docketed: June 30, 2010
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (08-0719)
Decision Date: March 29, 2010

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 28 2010 Petition for a writ of certiorari filed. (Response due July 30, 2010)

Jul 30 2010 Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Jul 30 2010 Brief amicus curiae of United States Army Defense Appellate Division filed.

Oct 28 2010 Brief of respondent United States in opposition filed.
Nov 5 2010 Reply of petitioner Webster M. Smith filed. TBP
Nov 8 2010 DISTRIBUTED for Conference of November 23, 2010.
Nov 29 2010 Petition DENIED.


~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Daniel S. Volchok Wilmer Cutler Hale and Dorr LLP (202) 663-6000
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Party name: Webster M. Smith
Attorneys for Respondent:
Neal Kumar Katyal Acting Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Party name: United States
Jonathan L. Marcus Covington & Burling, LLP (202) 662-6000
1201 Pennsylvania Avenue, NW
Washington, DC 20004
Party name: National Association of Criminal Defense Lawyers

Jonathan F. Potter Senior Appellate Counsel United States Army (703) 588-6717
Defense Appellate Division
901 N. Stuart Street
Arlington, VA 22203
Party name: United States Army Defense Appellate Division

The only cadet court-martialed in the 130-year history of the Coast Guard Academy has run out of options to appeal his conviction.

Cadet Webster Smith already served time behind bars, but continued to fight all the way to the U.S. Supreme Court.

After more than four years, the Smith case is over. The former Coast Guard cadet hit a dead end when the U.S. Supreme Court has decided not to hear his final appeal.

Smith was acquitted of rape charges, but served five months in a military prison after being convicted of sodomy, extortion and other charges.

He was also kicked out of the Coast Guard Academy.

Smith has claimed in multiple appeals that his constitutional rights were violated at his trial.

He said he wasn't allowed to ask one of the female cadets who accused him of rape about her past, saying he wanted to show that the woman known as Cadet S.R., had a motive to lie about what happened with Smith.

He claimed their sexual encounter was consensual.

Since the nation's high court has declined to hear Smith's case, the final judgment comes from the U.S. Court of Appeals for the armed forces.

In March the court ruled that his conviction should stand, saying "further cross-examination of Cadet S.R. was not 'constitutionally required.'"

Many Supreme Court experts thought the high court might take Smith's case, but the justices declined the case without comment.

Congress is deadlocked; the President is weakened; and, the Supreme Court does not appear to be in a mood to settle conflicts of law between the Circuit Courts. Since nature abhors a vacuum, this may be a good time to legislate from the bench.

This case implicates a deep circuit conflict regarding
the standard of review that applies when a trial
judge’s restriction on the cross-examination of a prosecution
witness is challenged on appeal as a violation of
the Confrontation Clause. The Court of Appeals for the
Armed Forces (CAAF) held that the standard of
review is abuse of discretion rather than de novo. Applying
the former standard, the court rejected Webster Smith’s
Confrontation Clause claim by a vote of 3-2.

The Courts Of Appeals Are Deeply Divided
Over What Standard Of Review Applies To
Confrontation Clause Claims Like Webster Smith’s.
The CAAF employed abuse-of-discretion review in resolving
Smith’s Sixth Amendment challenge to the
military judge’s restriction on the defense’s crossexamination
of Shelly. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo,
reserving abuse-of-discretion review for nonconstitutional
challenges. For example, the Seventh
Circuit has stated that “[o]rdinarily, a district court’s
evidentiary rulings are reviewed for abuse of discretion.
However, when the restriction [on crossexamination]
implicates the criminal defendant’s Sixth
Amendment right to confront witnesses against him, ...
the standard of review becomes de novo.”
The First, Fifth, Eighth, and Tenth Circuits
have adopted the same approach.

Six other circuits, by contrast—the Second, Third,
Fourth, Sixth, Eleventh, and District of Columbia Circuits—
take the same approach that CAAF does, applying
abuse-of-discretion review even when a restriction
on the cross-examination of a prosecution witness is attacked
on constitutional grounds. The Sixth Circuit,
for example, stated in one case that “[defendant] argues
that his right to confrontation was violated when the
trial court ‘unfairly’ limited his cross-examination of [a]
government witness .… We review the district court’s
restriction on a defendant’s right to cross-examine witnesses
for abuse of discretion.”

In short, CAAF’s use of an abuse-of-discretion
standard in this case perpetuates a clear—and recognized—conflict in the circuits.

The Question Presented Was Recurring And
Important, And The Smith Case Was A Good Vehicle
For Deciding It.
The circuit conflict at issue warranted resolution
by the Supreme Court. The constitutionality of restrictions
on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established;
there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one
standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".

Also, disuniformity created by the conflict directly
affects a fundamental individual right. Some defendants
in criminal cases enjoy less protection of the critical
right to confront their accusers because of the fortuity
of where their trials were held,or, as to cases decided
by CAAF, because they have chosen to wear the nation’s uniform.

The Webster Smith case presented a good vehicle to resolve the circuit
conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality
of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent
with the Sixth Amendment, Webster Smith would have prevailed.

Smith now lives in Austin, Texas, with his wife and daughter. He's required to register as a sex offender there for the rest of his life.

Justice truly was not served in this case. What is happening in America?
What happened to Freedom of Speech and Freedom of the Press? With the dumbing-down of the American educational system, most Americans now seem to know little and care less about their fundamental freedoms and civil liberties. Some believe that the police have a right to enter their homes without probable cause or a warrant. They do not believe that they have the right to "just say No".

In the Land of the Free and the Home of the Brave fundamental freedoms are being challenged as never before. Senators on Capitol Hill sound like a lynch mob calling for the head of the Wikileaks leader who published diplomatic cables on the internet. Many of the cables were little more than embarassing gossip. Yet, the administration that came into town riding the "transparency in government" horse are scrambling to keep its in-house chatter secret. We have not seen this much ado about release of tapes and documents since Richard Nixon and Alexander Butterfield let the cat out of the bag with the Watergate Tapes brew-ha-ha.

Sunday, November 14, 2010

Violence Against Social Security Judges Increasing.

The PowerPoint released by Erskine Bowles and Alan Simpson, the co-chairs of the National Commission on Fiscal Responsibility and Reform ("The Deficit Commission"), said we should "Reform Social Security for its own sake, not for deficit reduction."
Social Security has nothing to do with the deficit. Not now, not ever. However it has everything to do with political theater and public disinformation.
SocialSecurity is a political football, and now we are beginning the political Super Bowl Season.
Critics of Social Security have frequently made alarming claims about the future of the system to support calls for "reform". Opportunists are posturing and trying to humanize the Social Security Administration (SSA). In order to do that the first group they sieze upon to spot light are the Administrative Law Judges (ALJ) at SSA, the 1300-1400 judges who decide disability cases.

So now the SSA and its programs are at center stage of the public political debate. An avalanche of news articles have been triggered. One Associated Press article about violence against SSA ALJs became the most frequently Email-ed article on Yahoo within 48 hours of publication two days ago. However, the article can be very misleading without some insider background information.

The public is being manipulated with these articles. These articles are a diversion. They seek to make the judges appear as victims, while it is the American public who are being victimized. The judges are gatekeepers for the Social Security Trust Fund. To understand how and why read "socialNsecurity, Confessions of a Social Security Judge" at

The AP article "Violence Against Social Security Judges" could have been written 10 or even 20 years ago. Why now? The incidents cited are over 10 years old. The incidents of violence have not increased, only the threats. The threats are commonplace and go with the job.

The number one complain in disability cases in back pain. The second most common complain is a mental inpairment. Many of these claimants are seriously mentally impaired; some are certifiably insane. They talk out of their heads; and , they make threats. The ALJ is the first and sometimes only embodiment of the SSA and the Federal Governmant, so they make threats against them. But they have no means or opportunity to carry out the threats. So, by and large the threats are harmless.

Some judges will not hold a hearing without an armed Federal Protective Service officer in the hearing room. Not me. I would postpone the hearing first. I only had to do that once in my entire career as an ALJ.

Judges in Illinois were carrying guns to work in their brief cases 15 and 20 years ago. They probably still are today. The ones that I knew about, had permits to carry a fire arm. The state and the city fire arm licensing authorities must have been satisfied that there is and was a valid threat to their safety.

I have been threated. Attorneys representing claimants have been threated in my courtroom. I have heard things like "if I loose my benefits, I will kill you". That was said by a Mexican gang member with tear drops tatoos on his face and neck to an attorney in my court room.

I never let them know where I lived. I did not give out my home address. After work, I was always cautious and vigilant in the parking lot. We had to park in the same lot as the claimants. They knew our cars.

I never went straight home after work. I drove around and made sure no one was following me.

I lived less than one mile from the Downey Hearing Office. I was prepared to meet violence at the office but not at home. I was a military veteran, so danger and threats went with the job. However, my family was not to be put at risk. If I was going to be shot, it would be at the office, not at home. If a vengeful claimant was going to blow up something it was going to be the office, not my home. An Oklahoma City type of attack was acceptable, but not violence at my private residence where my wife and 3 little children lived.

In July 1990 the Downey, CA Office Of Hearings And Appeals (OHA) was at 11903 Downey Avenue. I was assigned to the Downey OHA, so I bought a house on Downey Avenue. It was less than two miles from my home to the office. I could have walked to work in half an hour. For many months I did not drive to work; I rode a bicycle. I stopped riding the bicycle when several vision impaired claimants almost ran me down in the parking lot. It was safer to drive than to get killed or injured on a bicycle. I was exposed to greater physical threats from routine anonymous claimants coming and going in the parking lot than I was from disgruntled revenge seeking claimants who intended to subject me to physical injury.

In the ALJ Training School in Fredericksberg, VA we told to try to remain anonymous in the field. Judge Tommy D. Capshaw told us to try to keep a low profile. He told us to get rid of the personalized license plates on our cars and to keep unlisted phone numbers. I rented a post office box for my personal mail. Periodicals, like Time and Newsweek magazine and the Christian Science Monitor, came to the office.

I never gave out my home address. My business cards listed the office address as my address. The cards were printed by SSA OHA without my request. Darlene Robertson, the office manager at OHA at that time, just came into my office one morning and gave me a box of cards.

I was the only ALJ who lived in Downey; all the other judges lived over 20 miles away in anonymous neighborhoods. David Chase Linehand kept an apartment in Downey, but he lived in San Bernadino, CA.

In about 1995 OHA moved to a new 15 year leased space above the Downey National Bank at 8345 Firestone Boulevard. This was one block off Downey Avenue, but it was one mile closer to my home. My commuting distance to work was cut in half.

This closer proximity to my home frightened me. I was concerned for the safety of my wife and children. All of my children were under 6 years of age. My wife was overly concerned and was frequently cautioning me never to give out our home address. She had seen some of the claimants entering and leaving the office and she was frightened by their appearance. Some of them looked dangerous at first glance.

We received complaints from the management of the bank downstairs that the claimants were disturbing their customers. Often claimants would enter the bank thinking they were at the OHA, which was on the second floor. Many claimants had complained that the Notice of Hearing was deficient was too vauge about the office address. The address in the Notice only gave a street address; it did not contain the suite number. Many claimants came to hearings late because they had had trouble locating the OHA. They had been in the bank downstairs, or they had gone to the Embassy Suites hotel next door.

My wife never allowed me to entertain the staff at our home because she did not want to give out our home address. We had hosted birthday parties for our children where one or two of the office staff had attended, but those were rare. Even though I lived closer to the office than any other judge, I tried to keep home and office as far away from each other as possible.

These were merely precautions. I had no illusions about how precarious our real safety net was. For the first five years I was a judge, our office had no security guard or agent from the Federal Protective Service. For the next ten years the guards in most offices did not search incoming claimants and were not allowed to use a wand to detect concealed metallic objects, such as guns or knives. For the next five years the office management staff appeared to spend so much time harassing the security guard that he spent as much time as possible away from his post avoiding management. Any safety measure could always be circumvented. Every e-mail sent can be retrieved with a few mouse strokes. Most claimants brought along a friend or family member who was a potential threat to the office personnel. One random glance or a photo snapped from a phone-camera at someone's social security number, and that number became a commodity for sale on the streets of Los Angeles. One phone call and our sanctuary could become our killing field. I was prepared to accept that level of risk at the office but not at home.

My next door neighbor was an elementary school teacher in Pico Rivera, CA. One day without any warning someone walked up to her front door and fired three shots through the front door. She had two children the same ages as my children. They were at home. We never found out what the motive was for the shooting. Fortunately no one was killed. To this day, we do not know who or why someone would shoot throngh her front door. This case remains an "unsolved shooting incident" at the Downey Police Department.

The AP reporter acknowledged that while no judges were harmed this year, there have been past incidents. The first example cited was that of a female judge in the Los Angeles Office of Disability Adjudication and Review (ODAR). She was hit over the head with a chair during a hearing. That is not exactly accurate, but I am familiar with the incident. The ALJ made some fundamental mistakes. The incident was avoidable. The judge deviated too far from standard procedure.

The ALJ in question had been transferred from the Long Beach Office of Hearings and Appeals (OHA) to the Downtown Los Angeles ODAR. She conducted the hearing in a formal manner. She wore a black robe; she sat at the judge's bench; she remained distant and removed from the claimant who was seated at the claimant's table which was below and separated from the judge's bench. Aside from the judge and the court reporter there were only two other people in the hearing room. Those were the claimant and her adult daughter. the claimant was not represented by an attorney and no attorney was present.

The claimant was alleging a mental impairment. She claimed that she could not engage in work on a consistent basis because her mental impairment prevented her from maintaining persistence, concentration, and pace. The ALJ was not convinced and something about her questions and her demeanor must have relayed that message to the claimant and her daughter. The judge was going to deny her claim. The conversational exchanges became heated. So, the ALJ closed the hearing and left the hearing room. Then she made a fundamental error.

The judge left the room, removed her robe, came back to the hearing room, and sat down at the table with the claimant and her daughter. It is not clear why she felt this little friendly chat was necessary. She had already as much as told the claimant that she was not going to win her case. She was not going to receive disability benefits. The conversation became heated. The claimant's daughter became excited and irate. The judge jumped up and tried to leave the hearing room and the daughter picked up a chair and threw it at the judge. This was predictable. The judge lowered the barrier and put herself on the same level with the claimant.

This is not the kind of violence that most judges are afraid of. Most judges would not have put themselves in this kind of a risky situation. This was practically an invitation to precipitate an incident. Moreover, usually the cases are so tightly scheduled, one after another, that most judges would not have had time to have a nice little touchie-feelie chat with a mentally deranged claimant who did not have a lawyer present to represent her.

WASHINGTON – Judges who hear Social Security disability cases are facing a growing number of violent threats from claimants angry over being denied benefits or frustrated at lengthy delays in processing claims.

There were at least 80 threats to kill or harm administrative law judges or staff over the past year — an 18 percent increase over the previous reporting period, according to data collected by the agency.

The data was released to the Association of Administrative Law Judges and made available to The Associated Press.

One claimant in Albuquerque, N.M., called his congressman's office to say he was going to "take his guns and shoot employees" in the Social Security hearing office. In Eugene, Ore., a man who was denied benefits said he is "ready to join the Taliban and hurt some people." Another claimant denied benefits told a judge in Greenville, S.C., that he was a sniper in the military and "would go take care of the problem."

"I'm not sure the number is as significant as the kind of threats being made," said Randall Frye, a judge based in Charlotte, N.C., and the president of the judges' union. "There seem to be more threats of serious bodily harm, not only to the judge but to the judge's family."

Fifty of the incidents came between March and August, including that of a Pittsburgh claimant who threatened to kill herself outside the hearing office or fly a plane into the building like a disgruntled tax protester did earlier this year at the Internal Revenue Service building in Austin, Texas.

A Senate subcommittee is expected to hear testimony on Monday at a field hearing in Akron, Ohio, about the rising number of threats, as well as the status of the massive backlog in applications for disability benefits, which are available to people who can't work because of medical problems.

Nearly 2 million people are waiting to find out if they qualify for benefits, with many having to wait more than two years to see their first payment.

Judges say some claimants become desperate after years of fighting for money to help make ends meet.

"To many of them, we're their last best hope for getting relief in the form of income and medical benefits," said Judge Mark Brown, a vice president of the judge's union and an administrative law judge hearing cases in St. Louis.

While no judges were harmed this year, there have been past incidents: A judge in Los Angeles was hit over the head with a chair during a hearing and a judge in Newburgh, N.Y., was punched by a claimant when he showed up for work.

In January, a gunman possibly upset about a reduction in his Social Security benefits killed a security guard during a furious gunbattle at a Nevada federal courthouse.

About 1,400 administrative law judges handle appeals of Social Security disability claims at about 150 offices across the country. Many are in leased office space rather than government buildings.

Brown said the agency provides a single private security guard for each office building that houses judges. Frye said he has sought more security and a review of the policy that keeps guards out of hearing rooms. He said Social Security Commissioner Michael J. Astrue has promised to look into it.

Social Security Administration spokeswoman Trish Nicasio said the agency continually evaluates the level and effectiveness of office security and makes changes as needed.

"We are taking appropriate steps to protect our employees and visitors while still providing the level of face-to-face service the public expects and deserves," Nicasio said.

Visitors and their belongings are screened before entering hearing offices and hearings room, she said, and reception desks are equipped with duress alarms to notify the guard immediately of any disturbance.

Thursday, August 19, 2010

One World Government.

HAVANA – Fidel Castro is showcasing a theory long popular both among the far left and far right: that the shadowy Bilderberg Group has become a kind of global government, controlling not only international politics and economics, but even culture.

The 84-year-old former Cuban president published an article Wednesday that used three of the only eight pages in the Communist Party newspaper Granma to quote — largely verbatim — from a 2006 book by Lithuanian-born writer Daniel Estulin.

Estulin's work, "The Secrets of the Bilderberg Club," argues that the international group largely runs the world. It has held a secretive annual forum of prominent politicians, thinkers and businessmen since it was founded in 1954 at the Bilderberg Hotel in Holland.

Castro offered no comment on the excerpts other than to describe Estulin as honest and well-informed and to call his book a "fantastic story."

Estulin's book, as quoted by Castro, described "sinister cliques and the Bilderberg lobbyists" manipulating the public "to install a world government that knows no borders and is not accountable to anyone but its own self."

The Bilderberg group's website says its members have "nearly three days of informal and off-the-record discussion about topics of current concern" once a year, but the group does nothing else.

It said the meetings were meant to encourage people to work together on major policy issues.

The prominence of the group is what alarms critics. It often includes members of the Rockefeller family, Henry Kissinger, senior U.S. and European officials and major international business and media executives.

The excerpt published by Castro suggested that the esoteric Frankfurt School of socialist academics worked with members of the Rockefeller family in the 1950s to pave the way for rock music to "control the masses" by diverting attention from civil rights and social injustice.

"The man charged with ensuring that the Americans liked the Beatles was Walter Lippmann himself," the excerpt asserted, referring to a political philosopher and by-then-staid newspaper columnist who died in 1974.

"In the United States and Europe, great open-air rock concerts were used to halt the growing discontent of the population," the excerpt said.

Castro — who had an inside seat to the Cold War — has long expressed suspicions of back-room plots. He has raised questions about whether the Sept. 11 attacks were orchestrated by the U.S. government to stoke military budgets and, more recently suggested that Washington was behind the March sinking of a South Korean ship blamed on North Korea.

Estulin's own website suggests that the 9/11 attacks were likely caused by small nuclear devices, and that the CIA and drug traffickers were behind the 1988 downing of a jetliner over Lockerbie, Scotland, that was blamed on Libya.

The Bilderberg conspiracy theory has been popular on both extremes of the ideological spectrum, even if they disagree on just what the group wants to do. Leftists accuse the group of promoting capitalist domination, while some right-wing websites argue that the Bilderberg club has imposed Barack Obama on the United States to advance socialism.

Some of Estulin's work builds on reports by Big Jim Tucker, a researcher on the Bilderberg Group who publishes on right-wing websites.

"It's great Hollywood material ... 15 people sitting in a room sitting in a room determining the fate of mankind," said Herbert London, president of the Hudson Institute, a nonpartisan policy think tank in New York.

"As someone who doesn't come out of the Oliver Stone school of conspiracy, I have a hard time believing it," London added.

A call to a Virginia number for the American Friends of Bilderberg rang unanswered Wednesday and the group's website lists no contact numbers.

Castro, who underwent emergency intestinal surgery in July 2006 and stepped down as president in February 2008, has suddenly begun popping up everywhere recently, addressing Cuba's parliament on the threat of a nuclear war, meeting with island ambassadors at the Foreign Ministry, writing a book and even attending the dolphin show at the Havana aquarium.

Tuesday, March 30, 2010

Are We Facing A Constitutional Crisis, Socialism, or A Police State?

Many people believe that the Supreme Court will declare President Omama's Health Care Law unconstitutional. Former New Jersey Superior Court Judge, Andrew P. Napolitano, is one of the most vocal. According to Judge Napolitano "President Barack Obama is one of the worst presidents ever in terms of respecting constitutional limitations on government, and the states suing the federal government over healthcare reform "have a pretty strong case" and are likely to prevail."

Napolitano says the president's healthcare reforms amount to "commandeering" the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

"The Constitution does not authorize the Congress to regulate the state governments," Napolitano says. "Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done. That's called commandeering the legislature," he says. "That's the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That's prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

The longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.

"The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can't simply move in there," Napolitano says. "And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they're doctors, nurses, or pharmacists. The feds have had nothing to do with it.

"The Congress can't simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law…"

The judge also says he would rate President Obama as one of the worst presidents in terms of obedience to constitutional limitations.

"I believe we have a one party system in this country, called the big-government party," Napolitano says. "There is a Republican branch that likes war and deficits and assaulting civil liberties. There is a Democratic branch that likes welfare and taxes and assaulting commercial liberties.

"President Obama obviously is squarely within the Democratic branch. The president who had the least fidelity to the Constitution was Abraham Lincoln, who waged war on half the country, even though there's obviously no authority for that, a war that killed nearly 700,000 people. President Obama is close to that end of lacking fidelity to the Constitution. He wants to outdo his hero FDR."

That is the good news. The bad news is that many of the legal challenges to healthcare reform will have to wait until 2014, when the changes become fully operational.

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that's expected to come before the Supreme Court.

"You're talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this," he says.

Other issues that Judge Napolitano waxes eloquently concerning are:

He believes American is in danger of becoming "a fascist country," which he defines as "private ownership, but government control." He adds, "The government doesn't have the money to own anything. But it has the force and the threat of violence to control just about anything it wants. That will rapidly expand under President Obama, unless and until the midterm elections give us a midterm correction – which everyone seems to think, and I'm in that group, is about to come our way.
Napolitano believes the federal government lacks the legal authority to order citizens to purchase healthcare insurance. The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want -- that's never happened in our history before," Napolitano says. "My gut tells me that too is unconstitutional, because the Congress doesn't have that kind of power under the Constitution."
The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others – create "a very unique and tricky constitutional problem" for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution's equal protection clause according to Napolitano. "So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don't have to pay what the rest of us do," Napolitano says.
Exempting union members from the so-called "Cadillac tax" on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. "The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can't say, 'Here's a tax, but we're only going to apply it to nonunion people. Here's a tax, and we're only going to apply it to graduates of Ivy League institutions.' The Constitution does not permit that type of discrimination."
Politicians from both parties routinely disregard the Constitutional limits imposed on them by the nation's founding document, Napolitano says. "The problem with the Constitution is not any structural problem," says Napolitano. "The problem with the constitution is that those who take an oath to uphold it don't take their oath seriously. For example, just a month ago in interviewing Congressman Jim Clyburn, who's the No. 3 ranking Democrat in the House, I said to him, Congressman Clyburn, can you tell me where in the Constitution the Congress is authorized to regulate healthcare? He said, 'Judge, most of what we do down here,' referring to Washington, 'is not authorized by the Constitution. Can you tell me where in the Constitution we're prohibited from regulating healthcare.' Napolitano says that reflects a misunderstanding of what the Constitution actually is. "He's turning the Constitution on its head, because Congress is not a general legislature," he says. "It was not created in order to right every wrong. It exists only to legislate in the 17 specific, discrete, unique areas where the Constitution has given it power. All other areas of human area are reserved for the states."
Napolitano says that members of Congress infringe on Constitutional rights because they fail to recognize its basis. "They reject Jefferson's argument, in the Declaration of Independence, that our rights come from our Creator, therefore they're natural rights, therefore they can't be legislated away," Napolitano says. "They think they can legislate on any activity, regulate any behavior, tax any person or thing, as long as the politics will let them survive. They're wrong, and with this healthcare legislation, they may be proven wrong, in a very direct and in-your-face way."

10 Ways the New Healthcare Bill May Affect You

The Patient Protection and Affordable Healthcare Act, more commonly referred to as the "healthcare bill", has taken over a year to craft and has been a lightning rod for political debate because it effectively reshapes major facets of the country's healthcare industry.
Here are 10 things you need to know about how the new law may affect you:

1. Your Kids are Covered
Starting this year, if you have an adult child who cannot get health insurance from his or her employer and is to some degree dependent on you financially, your child can stay on your insurance policy until he or she is 26 years old. Currently, many insurance companies do not allow adult children to remain on their parents' plan once they reach 19 or leave school.
2. You Can't be Dropped
Starting this fall, your health insurance company will no longer be allowed to "drop" you (cancel your policy) if you get sick. In 2009, "rescission" was revealed to be a relatively common cost-cutting practice by several insurance companies. The practice proved to be common enough to spur several lawsuits; for example, in 2008 and 2009, California's largest insurers were made to pay out more than $19 million in fines for dropping policyholders who fell ill.

3.Children cannot be denied coverage.
Starting this year your child (or children) cannot be denied coverage simply because they have a pre-existing health condition. Health insurance companies will also be barred from denying adults applying for coverage if they have a pre-existing condition, but not until 2014.
4. You Can Spend What You Need to
Prior to the new law, health insurance companies set a maximum limit on the monetary amount of benefits that a policyholder could receive. This meant that those who developed expensive or long-lasting medical conditions could run out of coverage. Starting this year, companies will be barred from instituting caps on coverage.
5. You Don't Have to Wait
If you currently have pre-existing conditions that have prevented you from being able to qualify for health insurance for at least six months you will have coverage options before 2014. Starting this fall, you will be able to purchase insurance through a state-run "high-risk pool", which will cap your personal out-of-pocket expenses for healthcare. You will not be required to pay more than $5,950 of your own money for medical expenses; families will not have to pay any more than $11,900.
6. You Must be Insured
Under the new law starting in 2014, you will have to purchase health insurance or risk being fined. If your employer does not offer health insurance as a benefit or if you do not earn enough money to purchase a plan, you may get assistance from the government. The fines for not purchasing insurance will be levied according to a sliding scale based on income. Starting in 2014, the lowest fine would be $95 or 1% of a person's income (whichever is greater) and then increase to a high of $695 or 2.5% of an individual's taxable income by 2016. There will be a maximum cap on fines.
7. You'll Have More Options
Starting in 2014 (when you will be required by law to have health insurance), states will operate new insurance marketplaces - called "exchanges" - that will provide you with more options for buying an individual policy if you can't get, or afford, insurance from your workplace and you earn too much income to qualify for Medicaid. In addition, millions of low- and middle-income families (earning up to $88,200 annually) will be able to qualify for financial assistance from the federal government to purchase insurance through their state exchange.
8. Flexible Spending Accounts Will Become Less Flexible
Three years from now, flexible spending accounts (FSAs) will have lower contribution limits - meaning you won't be able to have as much money deducted from your paycheck pre-tax and deposited into an FSA for medical expenses as is currently allowed. The new maximum amount allowed will be $2,500. In addition, fewer expenses will qualify for FSA spending. For example, you will no longer be able to use your FSA to help defray the cost of over-the-counter drugs.
9. If You Earn More, You'll Pay More
Starting in 2018, if your combined family income exceeds $250,000 you are going to be taking less money home each pay period. That's because you will have more money deducted from your paycheck to go toward increased Medicare payroll taxes. In addition to higher payroll taxes you will also have to pay 3.8% tax on any unearned income, which is currently tax-exempt.
10. Medicare May Cover More or Less of Your Expenses
Starting this year, if Medicare is your primary form of health insurance you will no longer have to pay for preventive care such as an annual physical, screenings for treatable conditions or routine laboratory work. In addition, you will get a $250 check from the federal government to help pay for prescription drugs currently not covered as a result of the Medicare Part D "doughnut hole".
However, if you are a high-income individual or couple (making more than $85,000 individually or $170,000 jointly), your prescription drug subsidy will be reduced. In addition, if you are one of the more than 10 million people currently enrolled in a Medicare Advantage plan you may be facing higher premiums because your insurance company's subsidy from the federal government is going to be dramatically reduced.
Over the next few months you will most likely receive information in the mail from your health insurance company about how the newly signed law will affect your coverage. Read the correspondence carefully and don't hesitate to ask questions about your policy; there may be new, more affordable options for you down the road.
(March 29, 2010 K. Rowland said:)
The same Supreme Court justices whom President Obama blasted during his State of the Union address this year may ultimately decide the fate of his crowning achievement as more than a dozen states have called on the courts to strike down the health insurance mandate of Democrats' health care overhaul - a move that would threaten the entire law.

Two major constitutional challenges have been levied against the new law, one by the state of Virginia, which enacted a law exempting its citizens from the federal health insurance mandate, and another by Florida and 12 other states. Legal scholars are divided on the merits of the cases, and even Congress - through its research service and its budget scorekeeper - has said it's an open question whether the provision could pass constitutional muster.

At issue is the scope of the federal government's power over states and individuals. Critics of the law say the requirement that all Americans buy insurance or pay a fine, if allowed, would mean that Congress has virtually boundless authority to compel actions. Proponents argue that legal precedents support an expansive reading of the legislative branch's license to regulate such activity.

"This is one of the most consequential lawsuits in our generation," said Baker Hostetler lawyer David B. Rivkin Jr., who is serving as outside counsel to the 13 states that have filed suit. "The fact you have so many different state attorneys general, Republicans and Democrats, from a variety of states coming together to do this just underscores how strongly they feel that the act infringes core constitutional interests of their respective states."

The mandate, which doesn't take effect until 2014, is central to Democrats' goal of insuring about 32 million more Americans. The law would offer tax credits to low-income individuals and allow young adults to remain on their parents' policies longer.

Both of the state lawsuits challenge the federal government's authority under the Commerce Clause, which grants Congress the power to regulate commerce among the states. The Florida case also cites a violation of the 10th Amendment, which reserves those powers not spelled out under the federal government in the Constitution to the state governments, and argues that the health care law's expansion of state Medicaid programs threatens state sovereignty.

Among the arguments against the law is that because it does not allow for purchasing insurance across state lines - the insurance exchanges are state-based - the buying of health insurance does not constitute interstate commerce. In addition, the plaintiffs say, not purchasing health insurance does not constitute an economic activity.

"Thus far in our history, it has never been held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services," Virginia Attorney General Kenneth T. Cuccinelli II argues in his state's lawsuit. "To depart from that history to permit the national government to require the purchase of goods or services would ... create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers."

While a requirement to buy health insurance might be new, some legal analysts say, Congress can in fact define an economic activity as something that results from not taking an action.

"The 1964 Civil Rights Act prohibits hotels and restaurants from discriminating based on race and thus prohibits inactivity," said Erwin Chemerinsky, dean of the University of California Irvine School of Law, noting that law relied upon the Commerce Clause. "The Supreme Court has said that Congress can regulate economic activity that has a substantial effect on interstate commerce. Buying or refusing to buy insurance is economic activity. The effect on the economy is enormous."

As an example, Mr. Chemerinsky cited cases in which the high court upheld Congress' authority to regulate the amount of wheat that farmers grow for their own home consumption or prohibit the cultivation of marijuana for medicinal purposes.

"If that fits within the commerce power, surely the health industry does," he said.

Mr. Rivkin, who served in various legal capacities for the Reagan administration and the George H.W. Bush administration, strongly disagreed. If that were the case, he argued, there would be no limits to the government's power as the Founding Fathers intended. He said the cases cited by Mr. Chemerinsky involve the cultivating of commodities and therefore clearly economic activities, unlike the refusal to purchase health insurance.

"The remarkable thing about an individual insurance purchase mandate is you are not being subject to a requirement by virtue of any economic activity you engage in - you're not doing a damn thing; you just exist," he said. "If this is upheld, then the federal government can do everything it wants subject only to the restrictions contained in the Bill of Rights."

Democratic leaders and the White House have scoffed at the legal challenges. Last week, press secretary Robert Gibbs said administration attorneys advised him "we'll win these lawsuits."

Jack M. Balkin, a professor at Yale Law School, noted that the new law structures the mandate as an amendment to the tax code and includes a discussion of the impact on state commerce, suggesting that the administration will defend it by citing the Commerce Clause as well as Congress' power to tax under the "general welfare" provision. That provision says the federal government may impose taxes - in this case, the penalty for those who don't buy insurance would be the tax - in order to provide for the "general welfare" of the country.

Not everyone agrees with that reasoning.

"It is a taxation and spending power, not an open-ended general welfare clause," said Michael W. McConnell, a Stanford law professor and former circuit court judge appointed by President George W. Bush. "And by the way, 'general' had a very specific meaning in the late 18th century - it meant nationwide in scope, which is why some of the state-specific provisions are constitutionally dubious."

Both lawsuits are in federal district courts, but analysts expect the issue to end up before the Supreme Court. If the high court were to rule in favor of the plaintiffs, the ramifications for Congress could be sweeping.

"It would be difficult for the court to hold that the law is outside of the power to tax and spend for the general welfare without calling into question various regulatory devices that both parties use in crafting legislation," Mr. Balkin said. "Since the New Deal, both parties have used the taxing and spending power for a wide range of regulatory purposes and this is what the challenge to the health care bill calls into question."

However, the justices have not been averse to striking down congressional laws favored by Mr. Obama. The president used his State of the Union address to attack, with the justices present, a decision that struck down limits on corporate and union spending for political campaigns on First Amendment grounds.

In his speech, Mr. Obama warned of foreign influence over U.S. elections while Justice Samuel A. Alito Jr. silently mouthed that Mr. Obama was not telling the truth. Chief Justice John G. Roberts Jr., in response to a questioner at a speech some weeks later, called the president's words "very troubling."