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Health care reform bill appeal skirmish



The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.

The government’s response in the Third Judicial Circuit over the health care reform bill reached a new level of absurdity yesterday. In so doing, it gave clues to why many of the active judges in the Court of Appeals are ducking the case, and should stay off the case.

Background on the health care reform bill appeal

Nicholas E. Purpura and Donald R. Laster, Jr, who filed a pro se lawsuit (Purpura v. Sebelius) against the health care reform bill (HR 3590), appealed last month to the Third Circuit Court of Appeals. The Federal District Court in New Jersey dismissed their lawsuit after months of delay, saying that they lacked standing. The theory: Purpura and Laster have not shown that they would bear any extra cost, let alone a burdensome cost, for complying with the Minimal Coverage Mandate. Under that mandate, every person must either have health insurance coverage, buy health insurance, or pay a fine (or is it a tax?) for not having it.

Purpura and Laster say that this theory of standing is totally specious. To them, any citizen has standing to challenge a law that violates the Constitution and poses even the most remote threat to their liberties. Recently the Supreme Court seemed to give them extra support. In Bond v. United States, a unanimous court held that any citizen of any State has standing, independent of that State’s attorney general, to challenge as unconstitutional a law that infringes upon that State’s “reserved powers” under the Tenth Amendment.

Shortly after Purpura and Laster filed their appeal, the Department of Justice asked for an extension of time to respond. The only reason they gave was that they were too busy fielding four similar cases in four different Circuits, including the Third. The problem: no rule of appellate procedure allows a party to claim an extension of time merely because that party is too busy. Furthermore, the Third Circuit’s own rules set a limit of 14 days on any extension of time. Nevertheless, Chief Clerk Marcia M. Waldron extended the time for 30 days—to August 11.

The two plaintiffs moved almost at once to vacate the extension. They also moved for a Temporary Restraining Order (TRO) against the health care reform bill.


The government’s response

James A. Byrne Federal Courthouse, Philadelphia, PA, where the DOJ has two health care reform bill cases on appeal.

The James A. Byrne Federal Courthouse, Philadelphia, PA, home of the Third Circuit Court of Appeals. More than one health care reform bill case is on appeal here. Photo: US Department of Justice

The government responded over the weekend, with one brief opposing both motions. In opposing the motion to vacate the extension of time, the Department of Justice (DOJ) said only that they had given their grounds for extension in their request, the court (actually the clerk) had granted it, and they (the DOJ) saw no need for further discussion.

In opposing the TRO, the DOJ repeated its earlier argument before the District Court that Purpura and Laster had no standing. They said that the plaintiffs made “at best, generalized grievances for which Plaintiffs have no standing.” (They don’t seem to notice the circular reasoning in that sentence.) They then said that the plaintiffs never showed that the Minimal Coverage Mandate would affect them. The DOJ referred to “voluminous briefs” to make their point. (In fact, the plaintiffs never filed anything except in response to a government brief, or after a deadline had passed.)

But then the DOJ made a reference that is at best bewildering (and even bizarre), and at worst needlessly offensive. They referred to an earlier case that Purpura once litigated in New York State and in the Third Circuit. They cited that to say that Purpura has a history of “abusive and vexatious litigation in this Circuit.”

What was that all about?

The case of Purpura v. Bushkin, Gaimes, Gains, Jonas and Stream, 317 Fed Appx. 263, 266 (3rd Cir. 2009) involved:

  1. A crooked land deal,
  2. A loss to New York State of at least half a billion dollars to corrupt speculators,
  3. A nasty divorce action by the former Mrs. Purpura,
  4. Three currently active judges on the Third Circuit (Judges Rendell, Hardiman and Greenberg), and
  5. The same Judge Freda L. Wolfson, now on the US District Court for the New Jersey District, that lately heard Purpura’s health care reform bill case.

Purpura and Laster asked Judge Wolfson to recuse herself from their latest case on precisely this ground. Out of courtesy to her, they forbore to mention this old matter. (Full disclosure: your editor knew about this matter, also, but respected Purpura and Laster’s decision not to mention that in public unless anyone else did.)

The plaintiffs respond

Today, in a response to the combined opposition brief, Purpura and Laster sharply rebuked the DOJ and the Third Circuit. They accused Wolfson of “protecting…hoodlums in black robes” in New York State in the old action, and “blatantly ignoring existing law, precedent, and rules of procedure” in the health care reform bill case. They also said, in case Judges Rendell, Hardiman and Greenberg have not recused themselves from the case, they had better recuse themselves. Their role in the earlier case makes them unable to decide this new case. The plaintiffs went further: those judges should resign from the bench for what they did in the old case, or else face removal from the bench on impeachment for, and conviction of, breach of “fiduciary duty” and “disrespect for the laws of the United States.”

They also wrote back to Chief Clerk Waldron. They said flatly that no precedent allowed her to withhold the names of recused judges. Then they raised the stakes further: they invoked the Freedom of Information Act to get those names.


Featured image: the Constitution of the United States. Photo: National Archives



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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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