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Article Explaining the Meaning of a Constitutional Crisis

Several clients and friends have asked about an op-ed piece I authored for The Tennessean, “This Is Not a Constitutional Crisis”. 


Here’s the article in full:

I have heard a lot said, and seen a lot written, in the past few months about the possibility of a “constitutional crisis.” What is one and are we in, or close to being in, a constitutional crisis?

The drama should be brought down a notch. The courts in our country are deliberative bodies. They are designed to determine the truth of factual disputes, interpret the law, and reach a resolution of conflict. Their work is hard and sometimes can seem slow to the public, but the task assigned to courts requires procedural steps and, most of all, thought.

A constitutional crisis can be defined as a dispute about the constitution that requires immediate resolution.

Most cases, even constitutional cases, aren’t a crisis. There are thousands of constitutional disputes pending in the courts of the United States. Some are in federal court, but many of them are pending in state courts.

Some are in criminal cases and some in civil. Disputes come up in criminal courts, often interpreting the meaning of an “unreasonable” search or seizure or double jeopardy. Disputes in civil courts can concern any number of constitutional provisions such as freedom of the press, the establishment of religion, or the power Congress to regulate commerce.

It is rare that the resolution of these cases is a “crisis” that would require an expedited resolution.

Some of us remember the impeachment proceedings concerning President Nixon. Even that dispute was not necessarily a crisis. Congress was following the procedure that is set out in the constitution. Although the process was arduous for our country, it did not need to be expedited.

The closest thing to a constitutional crisis in my adult lifetime was Gore v. Bush. However one may feel about the outcome of the case, it was important for our country to have a president and important that the process for figuring that out (after the election) be short.

There are exceptions to the rule that courts act deliberately instead of quickly. Those cases involve a request for a temporary restraining order “TRO” or a temporary injunction.

A party does not win or lose the case itself in a ruling regarding a TRO. The question is whether the status quo should persist while the case is getting ready for trial.

A plaintiff can only win a TRO with proof 1) that they are likely to succeed on the merits at trial, 2) that they likely to suffer irreparable harm, 3) that the fairness tips in their favor, and 4) that an injunction is in the public interest.

The ruling from a court that the plaintiff is likely to succeed on the merits can take the wind out of the plaintiff’s sails, but it is not a final decision in the case.

Although I hate to cite the rulings on the “travel ban” as examples of TRO’s because they are so politically charged, those are surely the examples that will spring to mind. Lower courts preserved the status quo. But now the Supreme Court has modified those orders and will hear the entire case during its October term.

And that brings me to my final point. The cases about which we hear the words “constitutional crisis” may, in fact, represent a political problem and not a legal one.

Our judicial process works, but the cases before our judges are rarely a crisis in the interpretation of the constitution.

Let’s all take a deep breath and bring down the drama.

Elder Law Attorneys Have Joined Together to Resist Mandatory Pre-Dispute Arbitration Agreements Between Nursing Homes and Residents

The National Association of Elder Law Attorneys (NAELA) has joined with other stakeholders to resist a new regulation proposed by the Center for Medicare and Medicaid Services to allow nursing homes to require residents to enter into an agreement to forego their day in court even before a dispute has arisen.  The letter to CMS states:

“The difference between the existing final regulation and the proposed rule is vast. The existing regulation is designed to ensure that a resident enters into an arbitration agreement only if he or she knows what is at stake and has made a conscious decision to choose arbitration. The proposed regulation, on the other hand, would lead to the routine use and enforcement of pre-dispute binding arbitration agreements that were signed when the resident knew nothing of the dispute that ultimately is arbitrated, and signed only because the resident had to agree to arbitration in order to be admitted. “

My experience as a trial lawyer leads me to believe that pre-dispute mandatory arbitration clauses are very unfair in this context.  Most importantly, most people have no idea what they are giving up when signing such an agreement.  Moreover, residents are under tremendous emotional and sometimes time pressure at the time of admission.

So see the full letter drafted by NAELA, visit:  NAELA letter. 


A Bill Has Been Introduced in Congress To Allow Medicare Buy-In at 55

Eight Democratic senators announced last week that they were co-sponsoring legislation that would allow people 55 and older to buy in to Medicare. Sen. Debbie Stabenow (D-MI) introduced the Medicare at 55 Act with the immediate support of Democratic Sens. Tammy Baldwin (WI), Sheldon Whitehouse (RI), Sherrod Brown (OH), Jeff Merkley (OR), Patrick Leahy (VT), Jack Reed (RI), and Al Franken (MN). The bill, which would allow Americans aged 55 to 64 to purchase Medicare coverage, reflects the growing influence of progressive activists who are pushing for a single-payer health care system they dub “Medicare for all.” Although the bill stops short of making Medicare universal, its embrace of expanded public health insurance, rather than the private model at the heart of the Affordable Care Act, or Obamacare, marks a distinct leftward shift for the party. “People between the ages of 55 and 64 often have more health problems and face higher health care costs but aren’t yet eligible for Medicare,” Stabenow said in a statement. “If you live in Michigan, are 58 years old, and are having a hard time finding coverage that works for you, this bill will let you buy into Medicare before you turn 65.”

New Tennessee Case Shows the Problems with Failing to Update Your Will

A new case from the Tennessee Court of Appeals illustrates the problems when we fail to update estate planning documents.  Wanda Joyce Watkins made a will that left everything to her husband.  When he predeceased her, Wanda didn’t take steps to change her will.  Wanda had a daughter and named her the executor of the will.  When Wanda died, her husband’s children claimed all of her property.

Tennessee has what is called an “anti-lapse” statute which says that if you leave your money to someone in your will and that person dies, the bequest does not lapse if that person has children.  Despite testimony at the hearing that Wanda had a “tense” relationship with her stepchildren, they inherited all of her assets to the exclusion of Wanda’s own daughter.

If your estate plan is not up to date, consider making an appointment with us to review it.  Our tag line is “Planning for Peace of Mind.”

The Middle Class and Even Upper Middle Class Will be Affected by the Proposed Cuts to Medicaid

Many people may think that the steep cuts to Medicaid currently being proposed in Congress will only affect poor people, especially women and children.  The truth could not be further from that.  Even though elders comprise only 6% of Medicaid enrollees, long term services, such as nursing homes account for 42% of total spending.

A semi-private room in a nursing home in Tennessee costs approximately $70,000.  As we all know, we are living longer and health care costs are spiraling.  The result is that seniors are outliving their families and their resources and will need Medicaid, called TennCare here in Tennessee.

If Medicaid is cut, state governments will either restrict eligibility or lower the amounts they pay to nursing homes.

Read more. . .