Law & Jurisprudence

In late 2010, on the eve of the Arab Spring uprisings, a Tunisian blogger asked Egyptian activist Alaa Abdel Fattah what democratic nations should do to help cyber­activists in the Middle East. Abdel Fattah, who had spent time in jail under Hosni Mubarak’s regime, argued that if Western democracies wanted to support the region’s Internet activists, they should put their own houses in order. He called on the world’s democracies to “fight the troubling trends emerging in your own backyards” that “give our own regimes great excuses for their own actions.”

Various groups, including the Attorneys General of twenty-six states, the National Federation of Independent Businesses, and several individuals, have sued the federal government over parts of the Affordable Care Act. Specifically, they've alleged that the mandate requiring individuals to purchase health insurance is unconstitutional -- it overreaches the enumerated powers of the federal government. The case was recently accepted by the Supreme Court, with oral argument scheduled for March and a decision likely by the end of June. If the Court accepts the plaintiffs' arguments, they could strike down the individual mandate (which could create huge moral hazard problems and be catastrophic for the insurance industry) or strike down the law in its entirety.

As the excitement builds for the coming arguments, Meghan McCarthy of the National Journal issued a call for opinions and predictions on the final fate of the individual mandate. Here's our take:

The final ruling on the individual mandate is tough to forecast, but we're fairly confident that the Court will not strike it down. The challenge is based on whether Congress's power to regulate interstate commerce extends far enough to allow the federal government to require all citizens to purchase health insurance or pay a penalty.

The ruling will depend in part upon how the Court sees uninsurance: is it an active choice for an individual to go bare, in effect to self-insure, or is it due to inaction? The precise definition of action and inaction is a bit murky, but here’s how the argument goes. If going without health insurance is inaction, the Court has to deal with the messy question of whether Congress can regulate inaction when it affects interstate commerce. (Throughout the case, opponents of the Commerce Clause justification for the individual mandate have asked the government just how far Congress's power stretches. Their favorite example has been the purchase of broccoli: can Congress require everyone in the country to buy broccoli? So far, the government has not said "no" -- after all, choosing to buy, or not buy broccoli affects a whole series of interstate markets for leafy green commodities. We won't weigh in on the validity of that argument, but we agree with the Cato Institute's Ilya Shapiro that the government's inability to establish a limiting principle for the Commerce Clause may prove problematic when this argument reaches the Supreme Court.

We actually don't think the case needs to address the issue of action versus inaction at all. In the case of health care and health insurance, there simply is no inactive choice. Going without health insurance is inherently different from going without broccoli, because everyone has some interaction with the health care system at some point. Even if you choose not to buy health insurance, there is a good chance that you will need health care at some point. You are in a car accident, you get brain cancer, you fall down your stairs and break your leg. Since virtually everyone will, at some point, need  health care (and must therefore have a way to pay for it), choosing to go without private or public insurance is, in fact, choosing to self-insure. Since choosing self-insurance is an action that affects interstate commerce, it's clearly within Congress's power to regulate.

Alternatively, the Court might just accept the notion that the mandate is a tax (since its only enforcement mechanism is a penalty), in which case it is unambiguously within Congressional power. That might be more palatable to Justices uncomfortable with striking down the law, but who also don't believe in the expansive Commerce Clause power that the government's position implies.

A decade ago, as a bookish schoolgirl in the southern Egyptian city of Sohag, Samira Ibrahim Mohamed was fascinated by Egyptology and yearned to see the antiquities at the Egyptian Museum in Cairo one day.

But when she finally set foot on the grounds of the landmark pink stone building, on March 9, the museum had been turned into a makeshift torture center. Ms. Mohamed, who had just been arrested by the army during a protest on nearby Tahrir Square, was given electric shocks that she said made her body twitch spasmodically for days afterward.

On any given morning, Dr. Hawa Abdi wakes at 5 o’clock, ties a cloth over the scar where a brain tumor was removed several years ago, and walks a few hundred feet to the 400-bed hospital she started more than 25 years ago near Mogadishu. Since opening as a one-room clinic, the hospital has grown into a camp for 90,000 displaced Somalis, most of them women and children. They’ve fled to Mama Hawa, as Abdi is called, seeking haven from decades of war and, now, the worst famine in 60 years.

"I'm trembling," my mother says, when I tell her I'm working on an article about how younger and older American Jews are reacting differently to the Palestinians' bid for statehood at the United Nations. I understand the frustrations of the Palestinians dealing with ongoing settlements construction and sympathize with their decision to approach the U.N., but my mom supports President Obama's promise to wield the U.S. veto, sharing his view that a two-state solution can be achieved only through negotiations with Israel.

Agents of the East German Stasi could only have dreamed of the sophisticated electronic equipment that powered Col. Muammar el-Qaddafi’s extensive spying apparatus, which the Libyan transitional government uncovered earlier this week. The monitoring of text messages, e-mails and online chats — no communications seemed beyond the reach of the eccentric colonel.

The imminent fall of Muammar al-Qaddafi's regime in Libya opens a world of possibilities for Libyans that would have seemed almost impossible a year ago. But scenes of rebels and their civilian supporters celebrating in Tripoli's Green Square and in Qaddafi's Bab al-Aziziya compound should not obscure the still volatile situation in Libya. Even before Saif al-Islam al-Qaddafi's cameo appearance at the Rixos hotel on Aug.

“The Corner of Rothschild and Tahrir,” reads one of the posters at the site where Israel’s summer of social protests began—on Rothschild Boulevard in Tel Aviv, which has become the movement’s tent-city HQ. Few of the protest leaders would flinch at acknowledging the inspiration they drew from the Arab Awakening, but it is a new, challenging and often uncomfortable feeling for many Jewish Israelis to consider the surrounding Arab world as providing a spark worth emulating.

Sitting before the Senate Foreign Relations Committee on September 9, 2004, Secretary of State, Colin Powell, was taking his time getting to the question that everyone in attendance was waiting for him to answer. "And finally" he said, "there is the matter of whether or not what is happening in Darfur is genocide."

Deprived of food long enough, the bodies of starving people break down muscle tissue to keep vital organs functioning. Diarrhea and skin rashes are common, as are fungal and other infections. As the stomach wastes away, the perception of hunger is reduced and lethargy sets in. Movement becomes immensely painful. Often it is dehydration that finally causes death, because the perception of thirst and a starving person's ability to get water are both radically diminished.