Showing papers in "William and Mary Bill of Rights Journal in 2015"

Orange is the New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders

Abstract: INTRODUCTIONPicture, for a moment, two criminal offenders. Suppose that the respective offenders committed the same, exact victimless crime in the same, exact manner. Accept that they both are guilty, have no valid defenses, and are subsequently convicted. Perhaps they were arrested for drug possession-possibly marijuana. It could well be that fraud proved the downfall of these two offenders. Maybe they engaged in some grand larceny. For present purposes, though, the particular offense is not nearly as important as the identity of the individuals who committed it.Imagine, further, that both offenders are the same age-in their mid to late twenties. Both are currently unmarried, and neither has a history of domestic violence as either a victim or perpetrator. Both have a high school diploma and have been employed in low-skilled labor positions for the past several years with dependable regularity. Both offenders have similar extrinsic support systems. Like most individuals, they both have a network of loved ones-parents, siblings, cousins, and friends-who are willing to offer guidance and provide assistance. So far, so good. Right?Assume, however, like all individuals who find themselves cloaked in the telltale orange of the criminal justice system, that the offenders are imperfect. Each has a prior juvenile, nonviolent felony conviction, again for an identical crime. Both have close companions and associates who are also known criminals. Both display certain antisocial attitudes such as a lack of respect for authority and the law. Both possess problems with self-control and occasionally exhibit behaviors that are defiant, even reckless. Both have had problems with drugs and alcohol. Recall that both committed the same, exact crime in the same, exact manner.Surely, the two offenders receive the same, exact sentence. Certainly, if the adage that "justice is blind" holds true, any result to the contrary would be inconceivable. Given this nation's guiding principle and promise that everyone shall receive equal treatment under the law, such a dissimilar outcome would undoubtedly be unconstitutional. ' This, however, is precisely the unimaginable outcome that faces the two criminal offenders: they do not receive the same punishment even though they committed the same, exact crime. In many states, it is entirely possible that one offender may serve prison time while the other is diverted from incarceration to undergo an alternative penological treatment. One offender has his liberty interests stripped to their very core, confined behind bars in the six-by-eight-foot prison cell. The other offender is free to carry on her life in the shared presence of family, friends, and community, albeit under the watchful eye of a case manager or probation officer.How is this outcome possible? Simple. The offenders are identical in every respect save one. The criminal offender who is faced with a prison sentence is a man, and the criminal offender who is diverted from the penitentiary system is a woman. This hypothetical scenario has almost certainly played out in states that employ actuarial sentencing practices that use gender as a factor in determining risk assessment scores2 incorporated into pre-sentencing reports.Professor Sonja B. Starr lists the notion that judges "should not follow a policy of increasing the sentences of male defendants, or reducing those of female defendants, on the explicit basis of gender" among generally accepted sentencing "don'ts."3 Many jurisdictions, however, are encouraging judges to do just that through regimes that utilize evidence-based sentencing (EBS).4 Evidcnce-bascd sentencing can be defined as judicial decision-making premised upon empirical research or actuarial assessment of factors such as age, gender, marital status, criminal history, education, and employment in order to determine a particular defendant's recidivism risk.5 According to Judge Roger K. Warren, President Emeritus of the National Center for State Courts (NCSC), the general objectives driving the use of evidence-based sentencing include "improv[ing] the effectiveness of sentencing outcomes," "reducing] reliance on long-term incarceration as a criminal sanction," and "promot[ing] the development, funding, and utilization of community-based alternatives to incarceration for appropriate offenders. …

Adjusting the Benefits and Burdens of Economic Life for the Public Good: The ACA's Medical Loss Ratio as a Constitutional Regulation of Health Insurance Companies

Abstract: INTRODUCTION 214I. EXPLANATION OF THE ACA 216A. Individual Regulation 217B. Health Insurance Company Regulation 2181. IdentifyingFutureLosses 2182. ChoosingWhichLossestoInsure 2193. DecidingHowtoAllocateResources 220II. EXISTING SCHOLARSHIP 222A. Why the Constitutionality of the MLR Is an Important Question 222B. Current State of the Discussion 224III. CONSTITUTIONAL ISSUES 227A. Public Utility Rate-Making Analysis 228B. Regulatory Takings Analysis 2311. Penn Central Analysis 232a. The Economic Impact of the Regulation 234b. The Interference with Reasonable Investment-Backed Expectations 235c. The Character of the Governmental Action 237IV. TAKINGS ANALYSIS APPLIED TO THE MLR 238A. The Public Utilities Takings Analysis Should Not Be Applied to the MLR 2381. ExclusiveRetailFranchise 2382. ObligationtoServe 2403. ConsenttoRegulation 2414. Quality of Service 242B. Under the Penn Central Analysis, the MLR Does Not Constitute a Taking 2431. ProfitsasProperty 2442. FacialChallenge 2453. Penn Central Analysis 245a. Economic Impact 246b. Interference with Reasonable Investment-Backed Expectations 247c. Character of the Governmental Action 247CONCLUSION 249INTRODUCTIONThis Note examines one of the more recent potential challenges that academia has raised to the Patient Protection and Affordable Care Act (ACA): the minimum Medical Loss Ratio (MLR) as an unconstitutional taking of property under the Fifth Amendment. This Note argues that, under the appropriate constitutional analysis, the MLR does not rise to the level of a taking.1The ACA was enacted to address two primary problems in the American healthcare industry: access and affordability.2 Before the ACA was enacted, over 47 million Americans-18% of the population-did not have health insurance.3 The main barrier to coverage was cost: most people who did not have health care usually did not have access to employer health insurance, and could not afford to purchase it on their own.4 Additionally, lack of coverage was a long-term problem for most uninsured, with 47% reporting that they had been uninsured for five years or more, and 18% reporting that they had never had any coverage at all.5 Uninsured Americans had few ways to get affordable health care. Most Americans obtain health insurance through their employer, but 80% of uninsured Americans had no access to employer insurance, and most of the remaining 20% reported that the employer insurance was too expensive.6Despite the number of uninsured individuals, over the last thirty years, healthcare spending in the United States has snowballed.7 Americans spend more per year on healthcare costs than people in any other country with comparable per capita income levels.8 Additionally, the rate at which that number is growing is increasing quickly- faster than overall economic growth and the rate of inflation. …

Section 1983 Litigation: The Maze, the Mud, and the Madness

Abstract: IntroductionSome of us were there at the "founding," and I don't mean in 1871 when 42 U.S.C. § 19831 was originally enacted as the Ku Klux Klan Act,2 but in 1961, when die Court decided Monroe v. Pape3 a case that resurrected die statute as a viable remedy for those whose constitutional rights were violated by officials acting under color of state law. In Monroe, die Court held that conduct of an official who abused his authority or even violated state law fell under the umbrella of the statute's "under color of law" language.4 Even more of us were there in 1978, when, in Monell v. Department of Social Services,5 die Court overruled that part of Monroe that prohibited suits against local government entities, holding that plaintiffs could indeed sue such entities, provided die constitutional wrongs were inflicted pursuant to official policy or custom.6 Monroe and Monell breathed new life into the long dormant statutory remedy and fostered an optimistic outlook for enforcement of civil rights. So, fifty-plus years after Monroe, many of us are asking, "what went wrong?" There is a growing consensus among practitioners, scholars, and judges that Section 1983 is no longer serving its original and intended function as a vehicle for remedying violations of constitutional rights, that it is broken in many ways, and that it is sorely in need of repairs.Professor John C. Jeffries, Jr., someone who has been in the game from the beginning, has recently lamented the unintelligible, incoherent, inconsistent and nonsensical state of constitutional tort law.7 Professor Alan Chen, another long time player in this area, notes that "[i]n the nearly fifty years that have passed since Monroe, the Supreme Court has issued a series of decisions that have gradually diminished [Section] 1983 in ways that make damages recovery both costly and difficult."8 In fact, Professor Chen concludes that "[i]f the Court, Congress, and the academic community fail to recognize the valuable role that [Section] 1983 damages claims play in [the broad scheme of constitutional enforcement], then for many litigants, like their video game counterparts, it is 'game over.'"9Plaintiffs who bring claims under Section 1983 can name as defendants the individual actors who are alleged to have engaged in unconstitutional conduct, whether as "line" officers or as supervisors, as well as local government entities whose customs or policies are alleged to have caused the injury.10 In each instance, barriers erected by the Supreme Court will hinder a plaintiff's ability to seek redress for harms caused by even acknowledged violations of constitutional rights.* 11The primary focus of this Article is on the befuddled jurisprudence surrounding the defense of qualified immunity. I begin, however, with some brief observations about both municipal and supervisory liability, just to underscore the difficulty of making out those kinds of claims, and thus, assuming the Court's continued dogged adherence to the doctrine of no respondeat superior liability, the importance of providing plaintiffs with a viable damages remedy against non-supervisory officials.I. THE MAZE: CLAIMS AGAINST GOVERNMENT ENTITIESWhile individual officers sued in their individual capacities for damages are afforded the qualified immunity defense to protect from harassment and liability for engaging in conduct that was not clearly unconstitutional, local governments may be held liable for constitutional harm that can be shown to result from official policy or custom, even if the right was not clearly established at the time of the challenged conduct.12 But, the Court has remained steadfast in its rejection of respondeat superior liability under Section 1983,13 so plaintiffs have to show that the entity itself has caused the constitutional violation, not simply that the entity employs a constitutional tortfeasor. The Court has recognized basically four different ways a plaintiff might establish local government liability:1. …

#Tweeting for Terrorism: First Amendment Implications in Using Proterrorist Tweets to Convict Under the Material Support Statute

Abstract: INTRODUCTION"Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. These acts shatter steel, but they cannot dent the steel of American resolve."1 Although inspirational, these words carry little truth today. September 11, 2001, stole two landmark buildings, the security of the American people, and many innocent lives. Most importantly, however, September 11, 2001, threatened the very foundation America was built on: freedom. As the War on Terror began, the First Amendment came under attack, and Americans began to lose the very freedoms that the Founders fought so hard to preserve.2 The War on Terror paralleled another unimaginable phenomenon: the rise of the internet. The rise of the internet introduced social media, including Twitter,3 allowing people around the world to connect and share information at the click of a button. As the War on Terror and the rise of the internet continued to evolve and turn the world on its head, both began to add new challenges to constitutional interpretations of the First Amendment. This Note will discuss these challenges, arguing that proterrorist tweets can be used to convict an individual under the Material Support Statute without violating the First Amendment, so long as the government has evidence that the defendant acted in coordination with a foreign terrorist organization.4This Note is split into three parts. Part I will introduce Professor Steven Salaita, a University of Illinois professor who lost his job because of his anti-Israel tweets.5 Professor Salaita's situation is merely illustrative as it is one of increasing importance as many are finding themselves in similar circumstances.6 Part II will give a history of the First Amendment, addressing the general background,7 the limitations that have been placed on the First Amendment for national security concerns,8 and its relation to social media, which will include a discussion of United States v. Mehanna.9 After discussing the First Amendment in depth, Part III will heavily analyze and critique First Amendment implications in using proterrorist speech online, particularly social media, to convict under the Material Support Statute. Part III will also come back to Professor Salaita and look at the criminal liability that he could face for his tweets.10 This Note will then evaluate the potential ramifications of this outcome11 and offer three unsatisfying solutions to these ramifications.12 Part III will end with a discussion of policy considerations: the importance of preserving the First Amendment, the necessity of protecting national security, and how to resolve this tension.13I. THE STORY OF STEVEN SALAITA AND OTHERS CAUGHT TWEETING FOR TERRORISMA. Professor Steven Salaita"Let's cut to the chase: If you're defending #Israel right now you're an awful human being."14 This is just one of hundreds of Steven Salaita's anti-Israel tweets from the summer of 2014.15 Salaita, a Palestinian American,16 began his academic career in 2006 at Virginia Tech where he was a faculty member in the English Department.17 Salaita earned lifetime tenure at Virginia Tech.18 In October 2013, Salaita accepted a professorship with lifetime tenure at the University of Illinois at Urbana- Champaign.19 After moving from Virginia to Illinois, Salaita was fired two weeks before his start date and without any warning.20The University of Illinois voted in August 2014 to block Salaita's appointment because his tweets supported Palestine and disparaged Israel.21 However, this vote came after a campaign by pro-Israel students, faculty members, and donors who argued that Salaita's tweets were anti-Semitic.22 Salaita's termination gained national attention.23 Despite the many individuals who fought for his termination, many more began fighting for Salaita's reinstatement.24 This fight was not centered around fairness or compassion, but around freedom.25 Those fighting for Salaita's reinstatement used the First Amendment to argue that Salaita's termination violates his right to free speech. …

It’s Not Called Conduct Therapy; TalkTherapy as a Protected Form of Speech Under the First Amendment

Abstract: IntroductionMany states regulate the practice of psychotherapy through a licensing board operated by the state. Like with doctors or lawyers, those not licensed to practice psychotherapy are normally prohibited from doing so. While there have been numerous cases arguing that such a regulation necessarily infringes on the free speech rights of those wishing to practice these professions, courts often hold that there is no constitutional infringement as these laws serve to further legitimate state interests.* 1Unlike medical doctors and attorneys, however, there is a dearth of case law prohibiting specific psychological treatments. As will be discussed, there are a number of regulations and laws limiting not only who may practice psychotherapy, but also the duties and obligations accompanying licensure in that field. However, until very recently, there were no laws saying what kind of therapy a psychologist is not allowed to engage in. This recent California law, SB 1172,2 prohibits the practice of gay conversion therapy on minors, even those forms of therapy relying wholly or mostly on speech.3The Ninth Circuit recently upheld this law in Pickup v. Brown (Pickup II), stating unequivocally that this law does not violate the First Amendment because it only regulates conduct, not speech.4 Because the law still allows therapists to discuss and recommend the therapy, the court found that their First Amendment rights were not affected.5 The only thing the therapist cannot do, reasoned the court, is engage in the actual therapy itself.6 The court pointed to a number of similar regulations in the medical field preventing or compelling a doctor's speech.7While the Supreme Court refused to grant certiorari on this particular case,8 more and more states are considering enacting similar legislation. New Jersey already passed such a law, which was instantly challenged and recently ruled constitutional by the Third Circuit.9 It seems likely, however, that the Supreme Court may grant certiorari if this issue appears before it again, especially if one of the other circuits decides the case differently. This could have far-reaching consequences for the practice of psychotherapy, as the Supreme Court's affirmation of the Ninth Circuit's reasoning would make it very easy to ban any sort of therapy without much concrete evidence. While most people may view this revolving around the issue of sexual orientation, this case will have an effect on an entirely different issue.As this Note will discuss, there are basic and inherent differences between psychotherapy, and talk therapy in particular, and other regulated professions such as law and medicine.10 Unlike those professions, speech is often the primary vehicle through which psychological treatment is delivered. Furthermore, a psychologist takes much of him or herself into the therapy room when meeting a client, which is often used to elicit change. Restricting the speech which may occur in session may weaken the efficacy of the treatment; the client's sense that the therapist is withholding information or treatment options could harm the connection that forms between the client and therapist.This is not to say, however, that all types of therapy should be acceptable, nor does it support the idea of gay conversion therapy in any way whatsoever. Instead, this Note suggests that the communication which occurs during a session between a therapist and client is pure speech, especially when it is being used as the sole tool for change.* 11 Psychotherapy is unique in that speech often lies at the heart of the practice, and the practice cannot be regulated in the same vein as the medical and legal fields. Thus, this Note will argue that, unlike other professions, laws prohibiting a certain type of therapy should be held to strict scrutiny and require a state to show a compelling interest in banning it.12This Note will first discuss the importance of Pickup II" on the psychological profession. …

The Eighth Amendment and Tax Evasion: Whether FATCA Non-Compliance Fines and FBAR Penalties Are Excessive

Abstract: INTRODUCTIONGlobalization and technological development have contributed to one of the most pressing issues in the United States-offshore tax evasion.1 Although it is difficult to estimate the exact amount of revenue losses from offshore tax abuses, the United States loses approximately $100 billion per year from offshore tax evasion.2 The problem was highlighted in 2008 when the United States Department of Justice's Tax Division investigated Switzerland's largest bank, UBS AG.3 In 2009, UBS AG admitted to defrauding the United States by impeding the Internal Revenue Service's (1RS) collection of tax revenues from U.S. taxpayers and paid $780 million in fines, penalties, interest, and restitution to the United States.4 More recent than the UBS AG scandal, the Tax Division has assisted the investigation of many other prominent banks throughout the world that have conspired to defraud the United States.5 As of the end of August 2015, more than twenty major Swiss banks reached non-prosecution agreements with the Department of Justice.6Despite successful attempts at reigning in foreign banks, however, the United States unilaterally responded to the global problem. Congress enacted the Foreign Account Tax Compliance Act (FATCA) in 2010,7 veiled as the funding mechanism for the Hiring Incentives to Restore Employment Act (HIRE Act).8 FATCA enlists foreign financial institutions to provide specific information directly to the 1RS re- garding financial accounts that are held by either U.S. taxpayers or foreign entities in which U.S. taxpayers hold a substantial ownership interest.9 Moreover, foreign financial institutions that fail to comply with the reporting obligations incur a withholding tax on a variety of withholdable payments from the United States.10 1RS Commissioner John Koskinen recently stated that the 1RS "owe[s] it to the vast majority of honest U.S. taxpayers to tirelessly search for and prosecute those who dodge paying their fair share and the unprincipled professionals who assist them.""FATCA serves as an important weapon that is necessary to combat offshore tax evasion;12 however, it teeters on the edge of constitutionality like many other powerful policy mechanisms.13 FATCA's admirable purpose is undermined by its questionably blatant disregard for the U.S. Constitution.14 An essential part of FATCA is to encourage voluntary compliance with U.S. tax laws,15 yet it aims to deter offshore tax evasion via substantial penalties relative to the assets that U.S. taxpayers must disclose on Form 8938,16 regardless of willfulness.17 Andrew Quinlan stated that "FATCA remains both politically and legally vulnerable, and ultimately represents a doomed effort to treat the symptoms of the tax code's many inadequacies rather than root causes."18 Quinlan cited three constitutional objections to FATCA that U.S. attorney Jim Bopp has now argued,19 one of which is that both FATCA and FBAR violate the Eighth Amendment's Excessive Fines Clause.20 On July 14,2015, attorneys Jim Bopp and Justin Me Adam filed a complaint in the United States District Court for the Southern District of Ohio seeking declaratory and injunctive relief.21 The complaint, however, did not address the argument that FATCA may be unconstitu- tional under the Eighth Amendment with regard to individuals; rather, it focused on the penalties imposed on foreign financial institutions and passthrough entities.22 Although FATCA is the most recent policy tool for combating tax evasion, the Report of Foreign Bank and Financial Accounts (FBAR)23 also serves as a powerful tool.Pursuant to the Currency and Foreign Transactions Reporting Act of 1970, which is commonly referred to as the Bank Secrecy Act (BSA), all United States financial institutions must assist the U.S. government in detecting and preventing money laundering and tax evasion.24 Under the BSA, U.S. financial institutions must retain records of cash purchases of negotiable instruments, file reports of cash transactions that exceed $10,000 (daily aggregate amount), and report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. …

Habeas Corpus Petitions in Federal and Tribal Courts: A Search for Individualized Justice

Abstract: INTRODUCTIONTribal courts are the most effective forum for addressing alleged civil rights violations under the Indian Civil Rights Act (ICRA); thus, the provision in ICRA that grants U.S. federal courts habeas corpus jurisdiction must be amended to allow tribal governments to opt out. This is even more imperative because the 2013 Violence Against Women Act (VAWA) amendments to ICRA provide non-Indians the option to petition for a stay of detention while their habeas petition is pending. This new provision creates an ICRA that values the rights of non-Indians more than those of Indians because Indians are not granted this option.Although this new provision was created to avert fears that tribal courts are unable to properly address civil rights violations,1 an unprecedented survey of habeas corpus petitions filed in federal courts under ICRA found that fifty percent of cases are dismissed for failure to exhaust tribal court remedies. This acknowledges the sovereignty of Indian Nations and the view that tribal courts are the most effective forum for addressing any alleged violations. Notably, none of these cases were refiled after exhausting their tribal remedies and, of the remaining cases that proceeded after exhausting their tribal remedies, only four habeas petitions were granted. An additional four writs were granted on jurisdictional grounds due to the defendants' status as non-Indians; however, the low number of writs granted since 1968 demonstrates that tribal governments commit few civil rights violations that result in detention. Although federal courts have exercised their supervisory duty as required by ICRA, it is no longer necessary. Tribal courts effectively remedy any civil rights violations themselves.The question remains, however, what happens when civil rights violations are alleged in tribal courts? Although every tribal court is different, the case study of Navajo Nation Supreme Court habeas corpus cases demonstrates that tribal courts, when using tribal law based upon their culture, not only remedy civil rights violations but provide individualized justice by remedying such violations. Tribal courts, therefore, act as a check on the power of both the executive branch and the lower courts, reforming the justice system to avoid future civil rights violations. As illustrated by Dean Haungooah's case,2 tribal courts also work to restore a defendant to his or her community.In 2012, a Navajo Nation District Court sentenced Mr. Haungooah to 365 days in jail and a $500 fine.3 The jail sentence was later suspended, and he was placed on probation for a year.4 After three months of probation, a petition was filed that alleged Haungooah violated probation by failing to be a law-abiding citizen, leaving the jurisdiction of the Navajo Nation without approval, and possessing or using intoxicating liquors or controlled substances without medical treatment.5 The petition also stated that Haungooah failed to check in on July 9, 2012, but acknowledged that he called on July 10, 2012, to inform his probation officer that he had left his residence in Kayenta.6 "A copy of the revocation petition was provided to Probation and Parole Services (PPS) to be mailed to [Haungooah] 'when he disclose[d] his current address,'" but the court never issued a summons to appear before it issued a bench warrant.7 Haungooah was then arrested on November 27, 2012, pursuant to the bench warrant.8 While he was detained, he was "served with a notice of hearing and criminal summons ordering him to appear the very next day."9 The court also issued an order of temporary commitment without stating why Haungooah's detention was necessary.10At the hearing, the court informed Haungooah that his public defender had withdrawn legal representation and that "any legal representation in th[e] proceeding would be at his own cost."11 Initially, the judge "asked [him] how he wished to proceed, to which [he] did not respond."12 The judge then asked Haungooah if he wanted to proceed without an attorney, and Haungooah answered, "Yes. …

Diagnosed with Time Is Money: Arbitrary Medicare Provisions Differentiating Observation Services from Inpatient Admissions Violate Beneficiaries’ Due Process Rights

Abstract: IntroductionIn recent years, an upward trend in the denials ofMedicare reimbursement has triggered heightened scrutiny of provisions governing coverage.* 1 A hospital service known as "observation care" is one reason behind these increases. Observation care is when a patient goes to the hospital, the doctor must determine the patient's admission status by evaluating the patient's medical need.2 The doctor decides whether a patient shall be admitted as an inpatient or discharged as an outpatient.3 For billing purposes, the hospital may categorize a patient's use of sendee as only observation care; a short-term treatment and assessment sendee used to evaluate incoming patients.4 This type of outpatient sendee that is "commonly ordered for patients who present to the emergency department and who then require a significant period of treatment or monitoring in order to make a decision concerning their admission or discharge."5While this triaging method serves as a legitimate tool to avoid unnecessary hospital admissions, Medicare coverage for outpatient sendees comes at a cost for beneficiaries;6 outpatient coverage does not extend to any follow-up care, including skilled nursing care and prescription costs.7 Medicare beneficiaries complain that the distinction between inpatient status and observation status is not clear enough to result in the fair categorization of patients in all cases.8 At times, this results in beneficiaries unfairly being deemed ineligible for coverage despite their medical need. Unfortunately, most beneficiaries, if not all, are left in complete darkness without any initial disclosure about their admission status before being billed for a hospital visit.The classification confusion stems from the arbitrary provisions that differentiate outpatient and inpatient care. Doctors refuse to bear the blame because they believe that current regulations and provisions lack the clarity needed to avoid misclassifying patients.9 Hospitals blame their mistakes on the government's auditing pressures, which include heavy fines for failure to correctly classify patients on claim submissions.10 In May 2013, the Centers for Medicare and Medicaid Sendees (CMS) responded to accumulating frustrations by proposing changes to the federal regulations of Medicare Part A.* 11 The proposed changes will aim to solve ambiguous eligibility criteria to make it easier to correctly classify inpatient admissions.12 In August 2013, the CMS finalized changes, but the implementation of the new rules has been delayed until March 31, 2015.13This Note will argue that the proposed new changes to Medicare ' s provisions of inpatient admission lack the sufficiency necessary to protect beneficiaries from a Fifth Amendment procedural Due Process rights violation. The background section will first discuss Medicare and the outpatient service-observation care, then the Medicare appeals process and current problems with the provisions governing inpatient and outpatient admissions. The next part examines the Due Process Clause and established case law.The discussion section will first show that all Medicare beneficiaries have an existing property interest because of governing provisions' intent to reimburse beneficiaries' use of medical services, enrollees' expectations, and the inability to easily distinguish outpatients and inpatients. Next, federal oversight of the distribution of Medicare benefits is strong enough to create federal action. Last, the appeals claim system is an inadequate procedural safeguard due to its inability to review claims in a timely manner. The last section will present several recommendations to make the new provisions more effective, inducting improving clarity of language and notice to beneficiaries.I. BACKGROUNDA. Medicare: A Principal Government Program for HealthcareIn 1965, Congress added amendments to the Social Security Act (SSA)14 to establish Medicare, a form of federal health insurance that aids with medical costs for the elderly and disabled. …

The Architecture of Constitutional Time

Abstract: INTRODUCTION: THE ARCHITECTURE OF CONSTITUTIONAL TIME .........1090I. PRESIDENTIAL LEGACY AND THE CONSTITUTION 1093II. THE PURSUIT AND CONSTRUCTION OF A CONSTITUTIONAL REGIME .... 1097III. CONSTITUTIONAL TIME AND RECONSTRUCTIVE PRESIDENTS .........1101A. Constitutional Time and the New Order 1103B. Executing the Constitution 11081. Departmentalism 11092. Constitutional Constructions 11123. Creations 1115IV. CASES IN CONSTITUTIONAL TIME 1116A. President Washington, First in Constitutional Time 11161. Filling the Constitutional Space with Substantive Meaning .... 11212. Executing a National Constitutional Vision 11243. The New Federalist Baseline 11294. President Jefferson as a Suggestive Counterfactual 1131B. Theodore Roosevelt and the Frustrations of Constitutional Time . . . 11331. A President with Progressive Constitutional Ambitions 11332. The Constraints of Constitutional Time 1136CONCLUSION 1139INTRODUCTION: THE ARCHITECTURE OF CONSTITUTIONAL TIMEAs a descriptive matter, the idea that the Constitution has been transformed from its eighteenth century foundations seems plausible and perhaps even persuasive. When Bruce Ackerman introduced the idea that the United States had three distinct republics within the same formal, written Constitution of 1787,1 he used a great deal of constitutional theory and history to describe the workings of a dualist regime operating within higher law and normal politics. Ackerman noted in his "myth of rediscovery" discussion that lawyers needed to strain history in order to conclude that Franklin Roosevelt's Constitution remained faithful and consistent with Madison's.2 As a result, his project-greeted with renewed interest after a much-anticipated third volume in 20143-sought to reconcile die New Deal within American constitutionalism by emphasizing its ratification by popular mandate. The New Deal in the 1930s, like Reconstruction in the 1860s, represented a legitimate interpretation of the Constitution because it was a "new" Constitution approved by the people.4 Thus, Roosevelt may not follow Madison or even Lincoln and the 39th Congress, but his innovations deserved equal recognition as those of his predecessors. Moreover, if the New Deal created a new constitutional regime defined by positive government, then it might seem easier to justify the Warren Court's civil liberties "revolution" of the 1950s and 1960s as a particular extension of the new regime.5 Recognizing the New Deal as a constitutional moment-and not just as a restoration of Chief Justice Marshall's Constitution- clears the way for a more accurate reading of its far-reaching changes.6While Ackerman's account is provocative and sophisticated, gathering its fair share of interest and skepticism, it only begins to shift the emphasis on understanding constitutional law in a more holistic direction. One of its limitations is that he (like other scholars writing in this subgenre) may not fully appreciate the way in which the original institutional design of die Constitution has facilitated-and perhaps even anticipated-the construction of constitutional regimes during extraordinary political times. There is an institutional logic to the cycle of constitutional maintenance and renewal that has been in operation since 1789-and it differs in important ways from his account. Ackerman's signaling stages are numerous and imprecise, having certain branches play leading roles in one period, and others providing the crucial "switch in time" at others.7 The President only comes into play as a major constitutional actor during the Civil War with Lincoln, as if Presidents Washington, Jefferson, and Jackson were minor players with limited impact on constitutional baselines. …

What Did They Mean?: How Principles of Group Communication Can Inform Original Meaning Jurisprudence and Address the Problem of Collective Intent

Abstract: [W]e do not throw up our hands when considering a group's communication; radier we attempt to make sense of it using ordinary, original meanings.1IntroductionThe judiciary's proper role under Article HI of the United States Constitution2 has been the subject of debate since die promulgation of the Constitution.3 The conversation continues notwithstanding die expanse of time. This Note focuses on a subset of interpretative methods : originalism and its analogues to statutory interpretation (cumulatively referred to herein as original meaning jurisprudence). Within the realm of original meaning jurisprudence, two divergent trails have been blazed:4 give the legal text its original public meaning,5 or look to the text's original intended meaning.6 While original meaning jurisprudence covers an array of interpretive methods, they can all be distilled down to either a form of textualism or intentionalism.7 Professor Walter Sinnott-Armstrong offers a description of the two: "At the most general level, textualists claim that the meanings of the words in the text should guide interpretation, whereas intentionalists claim that an author's intentions should guide interpretation."8The terms textualism and intentionalism can be somewhat misleading. Intentionalism could be easily misunderstood as an inquiry into the lawgiver's intended goals or purposes for a law-what the lawgiver hoped to accomplish with the legal text.9 Furthermore, intentionalism, when juxtaposed to textualism, creates an impression that the intentionalist is not concerned with text. Legal texts are in fact vital to both interpretative methods; the crucial difference between die two concerns whose meaning attaches to the text. Meaning under textualismis derived from the listener (the public),10 while meaning under intentionalism is derived from the speaker (the lawgiver).11Textualism has been referred to as the more sophisticated form of interpretation on more than one occasion,12 and perhaps for good reason. That trail has been trod by the heavyweights of original meaning jurisprudence.13 Deriving meaning from the listener, however, may be inconsistent with basic principles of communication14- and legal texts are undeniably communicative in nature.15 With so many of original meaning's intellectual giants treading the path of original public meaning, one might suspect that die footpath to original intended meaning will go the way of all unmaintained trails, yielding to the overgrowth until no man dare traverse it. However, original intended meaning may be seeing a resurgence, with originalist scholar Professor Sai Prakash lending credibility to the intentionalist cause.16 Prakash's position is likely attributable to his understanding that legal texts are communicative in nature.17 And intended meanings are critical (Professor Prakash might even say indispensible18) to interpreting communications.19If legal texts are communications, then they are group communications, and to be sure, group communications pose certain challenges.20 If it is a basic principle of communication that we attach the speaker's intended meaning to a communication,21 whose meaning do we attach when it is probable (perhaps even certain) that individual members within the group have subjectively attached different meanings to the same words? This presents a major problem when interpreting not only legal texts but all group communications. On one hand we cannot imagine how a group can attach a single meaning to the words it uses when individuals within that group almost certainly have attached varied meanings to those words,22 and on the other hand we are baffled by the thought that a group cannot attach meanings that are peculiar to some will of tiie group. The collective intent problem has no absolute solution, but nevertheless, we manage to make sense of group communications every day. Original meaning jurisprudence should embrace principles of group communication when interpreting legal texts. …