Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

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Kalb v. Wise

Court: Idaho Supreme Court - Civil

Docket: 47057

Opinion Date: October 9, 2020

Judge: Bevan

Areas of Law: Civil Procedure, Legal Ethics, Trusts & Estates

Attorney Craig Wise appealed a district court’s determination that he breached a duty of care owed to Billy Kyser, Jr., as a beneficiary of Carolyn Kyser’s will. Wise represented Billy’s mother, Carolyn, in divorce proceedings from Bill Kyser, Sr., and in preparing a will that bequeathed her entire estate in equal shares to Billy and his brother Brent Kyser. As part of the divorce proceedings, and before Carolyn’s will was completed, Carolyn and Bill Sr. executed a property settlement agreement in which Bill Sr. and Carolyn agreed to retain sequential life estates in the family home, with the remainder going to Brent and Billy as tenants in common upon the death of the last surviving parent. Wise prepared a deed memorializing the terms of the property settlement agreement. After Bill Sr. and Carolyn both passed away, Brent retained Wise to represent him as the personal representative of Carolyn’s estate. Brent also hired Wise independently to prepare a quitclaim deed transferring Billy’s interest in the home to Brent. Wise sent the deed to Billy, who then executed it. David Kalb, Billy’s court-appointed conservator, then filed a malpractice suit against Wise. After a court trial, the district court held Wise breached the duty he owed to Billy as a beneficiary of Carolyn’s will by preparing the deed because it frustrated Carolyn’s testamentary intent that her estate be divided equally between her two sons. After review, the Idaho Supreme Court reversed the district court’s legal determination that Wise owed Billy a duty of care when Wise was acting as counsel for the personal representative of Carolyn’s estate, Brent. "Although Wise owed Billy a duty of care in drafting and executing Carolyn’s will, the district court impermissibly extended that duty by requiring that Wise ensure an asset outside the probate estate complied with Carolyn’s intent in her will."

In re Miller

Court: New York Court of Appeals

Citation: 2020 NY Slip Op 05804

Opinion Date: October 15, 2020

Judge: Per Curiam

Areas of Law: Legal Ethics

The Court of Appeals affirmed the determination of the State Commission on Judicial Conduct that Petitioner, a Judge of the Family Court, Broome County, committed certain acts of misconduct and should be removed from office, holding that Petitioner's pattern of misconduct warranted removal. The Commission unanimously determined that Petitioner's actions violated sections 100.1, 100.2(A), 100.2(C), 100.3(B)(3), 100.3(C)(1) and 100.4(H)(2) and 100.4(I) of the Rules Governing Judicial Conduct. A majority of the Commission members concluded that removal from office was the appropriate sanction under the facts. On appeal, Petitioner challenged the sanction of removal. The Court of Appeals affirmed, holding (1) considering Petitioner's misconduct in the aggregate along with his prior disciplinary history, Petitioner exhibited a pattern of injudicious behavior that cannot be viewed as acceptable conduct by one holding judicial office; and (2) therefore, the determined sanction should be accepted.