Legal Action’s Volunteer Lawyers Project is always looking for more than a few good lawyers to assist and represent many of this state’s poorest citizens protect their families safety, maintain housing and perhaps secure important benefits to support families and provide medical care for children. The VLP operates in all 39 counties served by Legal Action.

This Friday, 5/18, the VLP will recognize the pro bono efforts of all the lawyers who have assisted Legal Action clients in Milwaukee and Waukesha Counties in 2011.

If you’d like more information about the Volunteer Lawyers Project, please contact me at vlp@legalaction.org or 414-274-3063.

I’d not expect Wickard to land squarely on the points ACA makes since health care and agricultural sales are not exactly the same.

Wickard does stand for the principle that activities that seem “noncommercial” such as growing one’s own wheat actually impact commerce and can be regulated by Congress to further a legitimate commercial purpose. Wickard had to either keep for his own use wheat he had grown within his quota (selling less) or he had to buy additional wheat off the market. Controlled production is and was essential to stable prices.

With the exception of those rare individuals who are healthy up to the day they suddenly die, everyone will buy health care. Since the timing and magnitude of these costs are unpredictable and the “commercial” need compelling, rational consumers purchase health insurance to provide for this inevitable and sometimes extraordinary expense. To ensure that the largest number of persons can afford health care when they inevitably need it, it is within Congress’s power to require the purchase of health insurance.

First, aren’t you saying that a farmer might regard himself as compelled by circumstances that result from his quota and his earlier choice to exhaust it growing wheat for the market? If so, then I’m not seeing how that is a mandate in the sense of that in ObamaCare.

Second, whatever “critics of ObamaCare typically argue”, Mr. Clement didn’t argue that Wickard v. Filburn should be overruled, did he?

Mr. Filburn had already grown his alloted quota of wheat under the Agricultural Adjustment Act. He grew additional wheat beyond his quota and used it to feed his cattle. He was fined. He argued that Congress could not regulate wheat that he grew for his own use.

The Supreme Court ruled that Congress could place limits on the amount of wheat grown by farmers and that Congress could also require farmers to purchase any wheat in excess of their quota on the national market — even if, like Mr. Filburn, that farmer preferred to grow the excess in their own field.

Note that the Court did not rule that the AAA required farmers to buy wheat in the first instance. Filburn could have let his cows eat grass. However, if a farmer wanted to feed his cows wheat and had already met his quota then he had to either buy the excess wheat on the market or else pay the penalty.

None of this background is disputed, and even conservative critics of the Wickard decision agree that this is the holding of the case.

Critics of ObamaCare typically argue that Wickard v. Filburn is misguided and that this precedent should be overruled. That’s the whole point of my blog post. Opponents of ObamaCare don’t just argue against this one law, they advocate an interpretation of the Constitution that requires the rejection of a large body of Commerce Clause jurisprudence.

The relevant Commerce Clause precedent supports the constitutionality of ObamaCare. A ruling striking down the Affordable Care Act on the grounds that it exceeds Congress’ authority under the Commerce Clause would be a break with precedent that turns back the clock to at least 1942. Depending upon how the Supreme Court defines the scope of Congress’ “plenary” authority, it is also possible that a decision striking down the ACA could turn the clock back to 1824.

On the other hand, the Court could simply follow its own precedent and uphold the Affordable Care Act.

That that part of a farmer’s wheat produced for consumption on the farm was subject to the overall quotas under that Act was clear in the court’s opinion. What I’m asking, though, is how that “forced farmers to enter the market and purchase wheat that they might otherwise prefer to grow themselves.” It seems unlikely that a farmer would voluntarily sell wheat on the open market in order to use the proceeds to buy wheat on the open market for consumption on the farm, and I’m not seeing what in the opinion says the Act mandates he do so.

Although there is no evidence that Prof. Warren listed herself as a Native American on her law school applications, for 10 years (between 1986 and 1995), she listed herself as a “minority” law professor in the Association of American Law Schools Directory of Law Teachers.

Her minority status supposedly stemmed from her partial Native American ancestry.

When challenged as to the legitimacy of this claim Warren could only cite “family lore” that she was connected to the Cherokee and Delaware Indian tribes. However, further genealogical research has apparently established that her great-great-great grandmother on her mother’s side was Cherokee, thus making Warren 1/32 Native American.

However, neither she nor any of her ancestors ever registered for tribal membership.

The Warren episode illustrates how complicated the “Native American” label question really is. Although there has rarely been any benefit in American culture to being an actual Native American, it has long been a badge of pride to be able to claim to be “Part-Native American” or to have “some Native American blood.”

Warren is just one of many caucasion Americans who happily apply the old “one drop” rule of racial ancestry in order to label themselves “Indian.” And when it comes time to apply to law school, they indentify themselves as being of Native American ancestry, which is not only cool, but also likely to give them an affirmative action boost in the application process.

Of course, such an approach is diametrically opposed to the views of those like the members of the National Native American Bar Association who view “Native American” as a specific legal status and not a cultural label.

Because I am poor and the state was seeking to incarcerate me the trial court was required,in accordance with my state precedent, to sua sponte appoint counsel to me when I was dragged into court for contempt of their default order that accrued without service or enforcement for a decade.
Unfortunately, I was suffering from psychological injury, I was oblivious to my rights,had no knowledge of the law, I was also under the undue influence of an officer of the court and the trial Court did not appoint me counsel, therefore, I suffered deprivation of rights.

I learned of the law and filed motion for relief from judgment. The Trial Court of course denied it. Another court appointed me counsel to perfect the appeal from the denial of relief.

I did not get that appointed counsel because the court reporter has refused to type the order. The court hearing is meaningless without the order so counsel will not assist me.

Regardless, to preserve my appeal 28 days into the 30 day time limit I tried to proceed as a pauper on appeal, however, I had to pay the $250.00 filing fee to cure a defect in notice of appeal because I did not know I had to petition the trial court to proceed as a pauper.

I then found in the local rule that I could receive county or state indigent transcripts. No, I can’t, time is up and now I need to pay a $1000.00 deposit before the transcripts will be started. My case involves family related issues therefore there is no extension in time.

I can’t fully present my case without the transcripts. This is absurd! $1250.00 is too much money for me for me to pay… I don’t have it. This case cost me everything, I’ve been wrongfully arrested, maliciously prosecuted, held in involuntary servitude, my driving privileges have been stripped, I lost my job all because of this court’s unlawful default judgment and me being too incapacitated to know my rights and too poor to hire an attorney. Then the trial Court who is supposed to be honorable plays games with me to deny me access the appellant court.

I must be able to access the appeals court. What can I do other than sell anything of value I might have left. That is insane. I am preparing to pawn my 3 small children’s Christmas presents – their video games, my bicycle, my lawn mower and the last piece of my business… my floor scrubber/ buffer to pay for court transcripts so I can present my case to the appellant court.

This is disgusting and should be an embarrassment to our justice system, especially given the pathetic history of my case. This is not equal access or equal protection. Then because it was a court’s actions there is no recourse for the intentional cause of emotional distress or the loss of property and liberty. It’s just too much and not fair.

The real question here is whether, given the problem that exists, we should use the power of government to take money unwillingly away from people who earned it and give it to people who didn’t. To my mind, government’s proper role here is to provide a forum for private litigants to resolve their private disputes – not to skew the results of those disputes by providing resources to one side it does not provide to the other.

I see the same problems you do. But to improve access, I prefer efforts to simplify the court system, create a market for less expensive representation, and encourage more voluntary charity, rather than simply creating another government entitlement.

This problem is particularly acute in family court. Even someone who opposes public funding of private civil litigation must realize the current system causes great delays for everyone else. All are harmed by these delays. Providing lawyers for poor people speeds up the system for all.

I do, however, take issue with Mike Gonring’s claim the State Bar of Wisconsin has shown “tepid” support for the funding of legal services for the poor. To the contrary, the State Bar has been a leader in trying to reach a resolution to the problem. First, the bar conducted the exhaustive “Bridging the Gap” study, which provided the hard evidence Gov. Doyle used to provide $2 million/year in funding – for the first time in Wisconsin history. Second, the bar set aside $300,000 to fund the Access to Justice Commission created by the Wisconsin Supreme Court. No other legal association in this state has crafted such an exhaustive study or put such a large amount of money into a program to find a resolution to the problem. Perhaps the bar could do more, but it has a board of governors with divergent views on specific proposals.

This is a complex issue for which there are no easy solutions. Blogs like this are an important part of getting this discussion going.

The Tenth Amendment tells us nothing about this question until the limits of Congress’s powers are settled, which it is not.

The concept of regulating people doing nothing as being involved in commerce is a perversion of the Commerce Clause. Obamacare seeks to expand and further cement in our law the concept the federal government has unlimited general police powers over all aspects of human life. The Commerce Clause is simply a fig leaf.

It sounds like a difficult question to study, either way; how to get at the truth instead of what the study’s subjects want us to believe?

Since Obamacare is justified by something far, far less that any “concept of a government with unlimited power” your concerns are unfounded. Obamacare fits well within the concept of a government of limited powers.

You are correct in characterizing McCarthy as an outsider who deeply resented elitists and who was motivated by populist blue-collar, working-class anger. But his ability to channel this rage is precisely what made him so nefarious. By creating a target for this anger— communism—he shrewdly distracted working-class people from a far greater actual threat, the power of corporate America to exploit labor.

Communists were not, of course, his only scapegoats. McCarthy blatantly attacked labor unions as hotbeds of communism, and he supported the Taft-Hartly Act, which more than any other legislation has thwarted the labor movement in the U.S. So not only did he distract many working people from their true adversaries, he convinced them to actively oppose their own best interests. He mobilized populist, working-class rage against the very organizations that could best defend and protect the working class. Sadly, the same cynical, demagogic ability to mobilize working-class anger against its own natural allies is alive and well today in the Tea Party movement, and other groups that persuade working-class whites to vote against themselves and to support reactionary and blatantly anti-labor politicians.

It’s somewhat misleading to place too much emphasis on his Catholicism as a factor in his reactionary stance. After all, Catholics had a large constituency in the labor movement, which of course explains their long-time (now-fading) support of the Democratic Party. If McCarthy wanted to play the role of a Catholic politician, he could have just as easily gone the route of the Kennedys (an elite family that was embraced by the Catholic working class) and he could have stood before the Senate and waved papal encyclicals on the dignity of labor instead of folders full of names of fictitious communists.

Yes indeed, he expressed the rage of an economic and religious outsider, but it was an impotent rage that harmed the very class he pretended to represent. Being from a blue-collar Catholic family myself, I can personally testify to his toxic impact. My father greatly admired McCarthy. I remember him coming home one night and saying how ol’ Joe “rolled up his sleeves” and went after the communists. My father also bought McCarthy’s other line, since he was, and still is, a confirmed anti-union man, even though he has never been in a union and knows next to nothing about unions and what they actually do.

As for McCarthy being a “hipster,” he was a “kind of” hipster only in the most general sense of being a maverick who stood out from the mainstream. But as noted, he was a completely bogus maverick who was merely a tool of the establishment. About the only thing he truly had in common with the hipsters was his abuse of alcohol: He did indeed drink as prodigiously as, say, Jack Kerouac. But all similarity ends there. He would no doubt have loathed Cassady and Allen Ginsberg because they were homosexuals, and he would have despised Ginsberg’s liberal politics and uncompromising opposition to war. Well, okay, maybe Joe would’ve given Cassady and Ginsberg a pass on the gay issue, since two of his finest allies in the crusade against communism, Roy Cohn and J. Edgar Hoover, were homosexual.

Yes indeed, by getting beyond the labels and studying McCarthy we can learn a lot about his political heirs. With the Cold War over, they are not blessed with a monolithic enemy like communism, so they have had to be more creative in rousting up a diverse array of enemy scapegoats than McCarthy did. So they serve up illegal immigrants, Muslims, welfare cheats, gays, feminists, gun control advocates, rappers, left-wing academics, peaceniks, the United Nations, global warming scientists, tree-hugging pagan enviros, the liberal media, Socialist Obama, and, well, labor—although, having succeeded in slashing the number of unionized workers from a third of the workforce to about 13%, they may have to dredge up with some new enemies.

So by all means, let’s look at the extensive literature detailing McCarthy’s smarmy life and works. Richard Rovere’s “Senator Joe McCarthy” is a classic; then we have David M. Oshinsky’s “The World of Joe McCarthy,” and “Senator Joseph McCarthy and the American Labor Movement,” to name but a few sources.

You asked “Why not “everyone will need health care, so we have the authority to make everyone buy health care”?” If participation in this commerce is inevitable; “every one will need …” then compelling participation has no point. Everyone needs to buy food, what’s the point of telling them that they have to? Further, the point of the Individual Mandate is to make the purchase affordable to the greatest number, which advances a legitimate state interest.

Compelling unnecessary or unwanted purchases does not advance any state interest that I can see and invades individual liberty. Lacking such a compelling or even legitimate purpose, any such attempt is not likely to survive a challenge. That, I think, answers your question about whether “Congress has the power to force us to purchase health care we don’t want?”

More importantly, this reoccurring question seems to be making mountains out of mole-hills. The critical issue is not people being forced into unwanted health-care purchases, but people having a dire need for health-care and being unable to afford it until it’s too late, or only affording it by giving up other necessities. Opponents to the ACA seem to be trying to save us from an imaginary harm by exposing us to a real and present danger. I admit I don’t get that.

What the court should do is rule the Commerce Clause only applies to business transactions and not to individual conduct. The original intent of the clause was to keep individual states from enacting artificial roadblocks, such as taxes, levies or tariffs, that would hamper interstate trade. The clause was designed to allow for regulation of commercial conduct. If it applies to individual conduct outside of business, then there is no stopping point.