Monday, June 25, 2012

U.S. Supreme Court Strikes Down Major Provisions of Arizona Immigration Law

            Today in a landmark decision, the United States Supreme Court struck down three of the four major portions of Arizona’s immigration law. Arizona passed legislation that, among other things, allowed police to stop people that they had a suspicion could be illegal immigrants, check immigration papers on stops, and demand that all immigrants carry their papers with them at all times.

            In a 5-3 decision, the Supreme Court struck down three major pieces of the troubled legislation. First, the Court struck down the authorization the legislation gave local authorities to arrest alleged immigrants where “probable cause” exists that they are in the country illegally. This was a major piece of the legislation that garnered opposition at it seemed to give local authorities the power to stop and arrest any individuals that might be in the country illegally based on sight alone. Thus, opponents argued, they could stop any person that was of Latino heritage and claim justification by the law. Opponents argued this was
profiling in documents filed with the Court.

            The Court also struck down a provision that made it a state crime for immigrants’ failure to carry registration papers with them at all time.  The Court did not stop there, striking down the provision that forbid all illegal immigrants from soliciting or performing work in this country. The Court focused these decisions on how Arizona was preempted by federal law when it comes to immigration. Essentially, preemption requires that the federal government has made a law on a specific issue, like immigration, and that the State, in this case Arizona, makes a law on that same specific issue that directly conflicts with the federal law. Congress’s expansive registration process for immigrants was specifically cited, as was the larger scheme of immigration handled by our federal government.

            All was not completely lost for Arizona, as the provision that was upheld allows law enforcement officers to check the status of a suspect’s immigration if they have already been arrested or detained for another crime and ‘reasonable suspicion’ exists as to that person’s immigration status. Arizona Governor Jan Brewer called the upholding of this provision a "victory for Arizona" in comments made shortly after the decision was publicized. 

            The decision will have far reaching consequences at both the State and Federal level as other states, like Georgia, Alabama, Utah and Indiana, have all enacted similar provisions in their laws.

            In related news, in the next major case heard this term by the Supreme Court, the health care law decision is expected this Thursday. Legal insiders seem split on where the decision will go, but a small majority expects the individual mandate to be stricken from the law. Check the Parnell & McKay blog later this week for an update. 

Tuesday, June 19, 2012

The Health Care Appeal: What You Need to Know to Understand the Health Care Debate

            A decision is expected this month on whether the Affordable Care Act will be struck down by the United States Supreme Court. Legal scholars suspect that the individual mandate provision faces the most risk of being struck from the law, while experts expect the remainder of the law to stand. It is not clear what the Supreme Court will decide, but a lot of people have been confused on what the Court will look at when deciding whether to uphold the law.

            In order to understand the Government’s legal justification for the law, one needs to understand the Commerce Clause in our Constitution. This clause has been used to expand what Congress can and can’t regulate through its laws. Essentially, the Commerce Clause permits Congress to regulate commerce between states. Thus, if the commercial activity involves “interstate commerce” then Congress can regulate it by statute.

            The seminal case in this matter was Wickard v. Filburn. In Wickard, Congress had passed a law that regulated how much wheat a farmer could grow on his property. The law was passed in order to drive up wheat prices in a down economy. Mr. Filburn was a farmer who grew wheat for his own personal consumption. The government ordered him to destroy his crops and pay a fine. His appeal followed. In upholding the law, the Supreme Court expanded the commerce clause power to include anything that has an effect on interstate commerce. This expansive language has been relied on since that time in order to uphold a large amount of congressional statutes. The Wickard decision has garnered the ire of many strict constitutional scholars that felt the expansion on the commerce clause power was not what the Framers of the Constitution intended.

            How does this affect the Health Care debate? Well, the justification the government has relied on in supporting the law is the commerce clause and its expansive power. While experts do not expect the law to be struck down, many expect the individual mandate portion to be eliminated. The individual mandate forces citizens to purchase health insurance, and has a system of penalties in place if they do not. The government argues that health care is interstate commerce and falls squarely within their power. The opponents argue that forcing a citizen to purchase health insurance infringes on their freedoms, and is an unjustified expansion of the commerce clause power.

            Leaving the politics of the health care debate aside for a minute, the decision in this case will be a seminal moment in the commerce clause debate, and could have far reaching consequences on future cases brought under the clause. If you would like to learn more about the health care decision, and other decisions in front of the Supreme Court this session, the SCOTUSblog  has a “plain English” post explaining in layman’s terms the issues of each case.

            If you need help navigating the confusing legal world in New Hampshire or Massachusetts, please also feel free to contact us today. 

Tuesday, June 12, 2012

Divorce Hotels: The Netherlands Unique Approach to Dissolving a Marriage

            It’s a very difficult situation when two people are divorcing. The process can take a lot of time and money, and only lead to more frustration. It is not an easy process, but is one that the Netherlands is taking a new approach to resolving. They have introduced “Divorce Hotels”. The divorcing couple checks in on Friday, and leaves on Sunday with a divorce agreement.

            How do they do it? Well, they have a team of mediators, psychologists, and lawyers that get involved to help facilitate the final divorce agreement. The cost can range from $2,500 to $10,000 depending on the complexity of the assets and whether there is a fight over custody of the children. The parties then sit down and try to resolve the divorce as amicably as possible, all while spending the entire weekend in a hotel.

            The process isn’t for everybody, as noted in this article by ABCnews. “Not all divorces are so amicable. Halfens said the hotel only works if both parties are keen to make a clean break. “We can’t split up everybody,” he said, adding that couples who are “aggressive” or “childish” usually need a traditional and somewhat lengthy divorce. “First, we invite them to our head office for a conversation; we ask them about the situation. If it’s possible, we book them into the hotel. If not, we help them with a traditional divorce.”

This method is really interesting, as it is very similar to the Collaborative Divorce process our firm currently provides. Collaborative Divorce, just like in the Divorce Hotel, requires parties that are ready to split amicably and want to avoid a prolonged and expensive litigation.

As is noted in the article, the program is looking to branch out to the United States. In fact, Demi Moore and Ashton Kutcher were the first ones invited to partake in the program. While Ashton and Demi denied the request, it does look like it will be coming to the States so keep an eye out for a strange new way of getting divorced.

Monday, June 4, 2012

Federal Appeals Court Rules Defense of Marriage Act (DOMA) is Unconstitutional

            The Defense of Marriage Act, also known as “DOMA”, is a federal statute that was passed in 1996. The act states that when it comes to federal laws and regulations, marriage is defined as between a man and a woman only. The effect of this law was to limit the ability of same sex couples from receiving social security survivor benefits, and prevent them from being able to file joint taxes together. The law also stated that other states do not have to recognize same sex marriages in other states if their state did not recognize them.

            The ruling focused on these denials of benefits to same sex partners, and involved a type of legal analysis in constitutional cases called the “rational basis” test. This is the lowest bar for a federal statute to hurdle, but even with the low bar the Defense of Marriage Act was still struck down by a unanimous three panel appeals Court. The rational basis test, as discussed previously in this blog, involves the burden falling on the government to prove that the governmental action is rationally related to a legitimate government interest. This is same bar Proposition 8 in California failed on hurdle earlier in the year.

            The recent decision finding DOMA unconstitutional sets the stage for the United States Supreme Court to likely hear a same sex marriage case around this time next year. The decision will have far reaching implications, and will affect the field of family law for years to come.

            If you have questions about family law, or how the recent decision may affect you, please contact us today.