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May 11, 2009

Blawg Review #211

President Barack Obama has completed his first 100 days in office, and while we passed that marker a week or so ago, now it's time for a Blawg Review roundup and analysis of all that has happened in, or grown out of, that time (as blogged about in the past week, of course).  If we were to ask FOX News about Obama's first 100 days, all we'd hear about is Socialism.  (Those FOX anchors and analysts seem to be playing a 21st Century neocon version of "Hi, Bob.")  When the President spoke about the first 100 days himself, he reflected on issues faced to date -- swine flu (I mean H1N1), the federal budget, foreign policy (involving Iraq, Pakistan and Afghanistan), Gitmo -- and issues coming up in the near future: health care reform, new rules of the road for Wall Street, credit card consumer protection, federal budget savings, and federal contracting reform.  All that, and questions on the auto industry, torture, Arlen Specter and abortion, followed by a poetic reflection (prompted by a reporter's question) on what made him feel surprised, troubled, enchanted and humbled in his first 100 days in office. 

At the White House correspondents' dinner this past weekend, Obama noted that he's ready for his term to continue: "I believe my next hundred days will be so successful that I will be able to complete them in 72 days," he said. "And on my 73rd day, I will rest."  

Now, while POTUS is just getting his sea legs, the HealthBlawger is a seasoned pro (well, at hosting Blawg Review, anyway: see Blawg Review #88, Blawg Review #129 and Blawg Review #154).  As the ship of state steams on, we will now delve into some of the issues touched on by Obama in his recent address, and other legal and policy issues of note that are at the forefront of concern in the blawgiverse this past week.

But first, since this is Blawg Review #211:  One quick PSA for the "other" 211 (no, not that kind of PSA): Dial 2-1-1 for human services referrals and resources.

And now we're off to the races, looking at the news roughly by Cabinet secretariat, and Cabinet-rank agencies, in order of succession to the Presidency.

Vice President of the United States

The what-he-meant-to-say crew snapped into action after Joe Biden overreacted on the swine flu front.  And then from the frying pan into the fire: this linguistic "teachable moment" was replaced by a moment with Barack and Joe at a burger joint in Arlington, VA that had been cited for health code violations, though we can't tell how recently from the linked post on Bill Marler's Marler Blog.  Now, the Veep is putting together a short list of potential nominees for the Supreme Court seat vacated by Justice Souter.  (More on that below.) 

Department of State

State's getting a lawyer, Harold Koh (Dean of Yale Law School), though opponents of his nomination have been doing the equivalent of yelling "socialism" on FOX.  Anupam Chander works to set the record straight.  (By the way, Harold's brother Howard, former commissioner of the Massachusetts Department of Public Health -- my old stomping grounds -- is also headed to Washington, nominated to be assistant HHS secretary for health.)

Department of the Treasury

From The Conglomerate comes a call to hold off on restructuring the SEC until after the markets have recovered a bit more.  Meanwhile, Professor Bainbridge highlights some of the finer points underpinning insider trading regulation.  James Maul, at Mauled Again, supports proposed tax law changes that would eliminate some corporate/international tax boondoggles.  And Larry Ribstein unburdens himself on the banks' recent stress test at Ideoblog, in one of a series of "Dismantling Capitalism" posts.
Department of Defense

The "don't ask, don't tell" era may be coming to an end, according to Mother Jones; the question is whether Obama will insist on waiting for legislative change or if he will go the quicker route and just go ahead and sign an executive order suspending enforcement of the rule.

Department of Justice

While the Supremes aren't within the DOJ, there's certainly a close relationship, and the vacancy in the highest court in the land has prompted all sorts of speculation, grousing and counter-grousing.  This includes Scott Greenfield's review of Sonia Sotomayor's former law clerks' comments, made anonymously (cowardly, in his book) and otherwise at Simple Justice.  While playing the appointment guessing game, consider Jack Balkin's proposal for revamping the appointment system at Balkinization: a new Justice appointed every two years, with the nine most junior doing the heavy lifting, and senior justices hearing individual justice matters and stepping in among The Nine when a junior justice cannot hear a case.

Also tangentially related to DOJ is the same-sex marriage question, being taken up in state courtrooms and legislatures across the nation.  My Constitutional Law professor, Ira Lupu (Hi, Chip!) wrote this week at Concurring Opinions that political compromise through legislation is the way to go when it comes to recognition of same-sex marriage.  He notes with disapproval the Massachusetts rule that all adoption agencies treat heterosexual and gay couples equally in their placement processes, which led Catholic Charities to turn in its adoption agency license.

Department of the Interior

Interior has been getting mixed reviews on its handling of endangered species matters recently. Learn more at the joint UCBerkeley/UCLA Legal Planet blog.

Department of Commerce

We rely on commercial shipping for transport of goods around the world, but U.S. law seems to restrict merchant marine vessels to high pressure water hoses in the fight against pirates, according to Export Law Blog.
Department of Labor

Here we veer off-topic for a bit.  With Chrysler headed for ownership in part by the company that used to be run by the fashionable Italian guy who never buttoned down his button-down shirt, let's focus the labor segment of this review on the legal labor pool -- see Adrian Dayton's post on Generation Y at Marketing Strategy and the Law.  In the interests of lessening the labor required of attorneys, ABA TECHSHOW runs a program offering online resources for easing the trials of practice, called 60 Sites in 60 Minutes, featured this week on Jim Calloway's Law Practice Tips Blog.  I had the pleasure of meeting Jim at another iteration of this program in Boston, when the ABA cosponsored a TECHSHOW Roadshow with the Massachsuetts Bar Association Law Practice Management Section (I serve on the Section Council with a dedicated crew of colleagues).  Another set of law practice tips is presented by Matthew Homann of The [Non]billable Hour as a collection of tweets in e-book form.  Speaking of twitter, a number of the blawgers featured in this week's edition of Blawg Review also tweet.  Check out directories at Legal Birds and LexTweet, and follow @healthblawg on twitter For a glimpse of a tweetstream in and about a conference, accompanied by a first step towards an analysis of said tweetstream, consider the Health 2.0 example.
Department of Health and Human Services

So Secretary Kathleen Sebelius has finally been confirmed, after a week or so of questions regarding whether the country's response to the flu pandemic could have been better organized had her post and a couple dozen others been filled already.  Over at the Becker-Posner Blog, there are point-counterpoint posts on the economics of the flu pandemic, and Posner considers, among other things, the prospect of weaponization of flu virus. 

Moving quickly past swine flu -- and the obligatory joke: "They said we'd have a black president when pigs fly.  Well, swine flu!" (groan) -- There is a whole heck of a lot going on these days in the health care arena.  I hope readers will indulge me in a closer examination of some of these issues, as this is my "home turf." 

One of the "hot" debates in the past week or so has been over two key phrases in ARRA (the recovery act) pertaining to electronic health records ("EHRs"): "meaningful use" and "certified EHR."  These terms are used in the HITECH Act part of ARRA in laying out the requirements for a $19 billion bonanza: physicians and hospitals are eligible to participate in a net pool of $19 billion to cover the cost of implementing EHRs, so long as they are engaged in "meaningful use" of "certified EHRs."  The National Committee on Vital and Health Statistics held two days of hearings on "meaningful use" and "certified EHRs"; transcripts and audio recordings are available on line.  John Moore at Chilmark Research pulls it all together in his post, Making "Meaningful Use" Well ... Meaningful.

If all of our health records end up on line, then more and more of us will be concerned about hackers breaking in, misusing personal information, and potentially holding our records for ransom.  This is exactly what happened recently in Virginia.  Bob Coffield lays it all out at his Health Care Law Blog, and I posted my thoughts on lessons learned from the Virginia data security breach here at HealthBlawg.

Obama has a lot riding on health reform.  At the end of the White House health care summit a couple months ago, in a political masterstroke, he rose above the fray and told Congressional leaders that they knew what he was looking for in a health reform bill, and he would be looking to them to send him something he could sign.  In the time since that heady moment, when everyone was all gung ho for health reform -- from Ted Kennedy to Karen Ignani (her managed care industry association sponsored the Harry and Louise ads that helped tank HillaryCare, but now seems to want to be at the table rather than throwing stones from outside) -- prospects for progress have dimmed, principally due to the question of how we will pay for all this health care goodness.  If Congress can't put aside political expediency and be intellectually honest about this question, it just won't happen.  See two of Bob Laszewski's recent posts on the subject at his excellent Health Care Policy and Marketplace Review here and here.    

Office of Management & Budget

OMB Director Peter Orszag blogs at the OMB Blog (in his spare time); when the White House released its budget proposal last week, Orszag focused on the $17 billion in cuts -- programs that pay for things like cleaning up abandoned mines that have already been cleaned up, an early childhood program called Even Start that apparently doesn't do as good a job as Head Start, etc.

United States Trade Representative

Obama has had to walk a fine line on trade through the primaries and general elections, but as he's hitting his stride (when not preoccupied with the crisis du jour) he's been coming down in favor of free trade.  See the International Economic Law and Policy Blog for more on this topic.  The USTR is named Ronald Kirk -- a name I nearly mistook for Rahsaan Roland Kirk, a tremendous multi-instrumentalist famous for multi-tasking, and from whom his near-doppelganger may learn a few things.

United States Ambassador to the United Nations

While the United Nations is often a disappointing organization, the United Federation of Planets seems to have its heart in the right place.  Coming full circle to the start of this post, The Volokh Conspiracy considers whether Star Trek's Federation is socialist.  (That blog's title always seemed to have a Klingon ring to it, anyway.)

There are a handful of other cabinet-level agencies without blawg posts from the past week at hand to illustrate their relationship to today's theme (and please excuse the free-associative nature of the Labor section, above), so I will simply list them here and invite readers to add additional first hundred days issues relating to their jurisdictions in the comments section: 

Between Interior and Commerce in the line of succession comes the Department of Agriculture; between HHS and OMB come:

Department of Housing and Urban Development
Department of Transportation

Department of Energy
  (I can' t resist a quick reference to Donklephant which, true to its name, seems to find more common ground than most between Dems and the GOP on energy policy.
Department of Education
Department of Veterans Affairs
Department of Homeland Security
Council of Economic Advisers
Environmental Protection Agency

White House Chief of Staff

Finally, we come to the chief of staff.  I like Rahm Emanuel's comment that the President has an open hand but a firm handshake.  Sort of fits the gentleman-who-takes-no-prisoners image.  But he does have quite a mouth on him.  At the correspondents' dinner Saturday night, Obama observed that Rahm Emanuel always has a hard time on Mother's Day: "He's not used to saying the word 'day' after 'mother.'"

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting


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December 2008

Thanks, Bill.

The anonymous Editor of Blawg Review posted a rousing intro and link to this edition ... Check it out at

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