In separate appeals, the coalition of states and the National Federation of Independent Business said the entire health reform law should be set aside because Congress exceeded its authority. Under the law, Americans are given the option of purchasing health care insurance or paying a penalty.

The next SCOTUS term begins next week and continues through June 2012. The appeals made the case that a decision should be rendered quickly by the court — an argument that is also expected from the U.S. Department of Justice, which is charged with defending the law. Even if the case is fast-tracked and decided prior to the 2012 general election, however, there is little chance of it disappearing as a campaign trail issue.

The NFIB contends that it represents 350,000 small businesses in the U.S. It joined the states, which are led by Florida, in challenging the reforms.

“Until this court decides the extent to which the [reform] survives, the entire nation will remain mired in doubt, which imposes an enormous drag on the economy,” reads the NFIB petition. Similarly, the states’ petition cited a need for resolution to allow state government and budget planning.

Earlier this week, the DOJ chose not to ask the 11th Circuit to reconsider its earlier ruling, which has expedited the challengers’ petitions before SCOTUS.

At key issue is an August ruling by the 11th U.S. Circuit Court of Appeals in Atlanta, which struck down the portion of the law requiring health insurance or a penalty, but allow the remainder of the legislation to stand. In doing so, the appellate court rejected the GOP attack of the law as an expansion of Medicaid, which provides federal and state government-subsidized care to low-income Americans.

Although the government lost in the 11th Circuit, it has prevailed in two other appellate courts, and is expected to file its own petition to SCOTUS.

Iowa Gov. Terry Branstad added Iowa to the Florida-led lawsuit in January — nearly a year after it was originally filed. The states of Ohio, Kansas, Wyoming, Wisconsin and Maine also joined the suit at roughly the same time.

Additional plaintiffs are South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, South Dakota, Indiana, Mississippi, Nevada, Arizona, Georgia, Alaska and North Dakota.

Franken cited the high-profile lawsuit against Anoka-Hennepin School District in Minnesota, where six students and their families allege pervasive anti-LGBT harassment.

“My understanding is that LGBT persons are covered under the hate crimes act, and to the same extent that other groups like minorities and women [are],” Franken said. ”This Congress has said we need to protect LGBT Americans in the same way we protect other vulnerable groups, doesn’t it follow that we should protect LGBT students from bullying to the same extent that we protect other groups?”

U.S. Department of Justice Civil Rights Division head Thomas Perez responded that bullying against LGBT students has grown in recent years.

“The bullying of kids who are LGBT is probably our largest growth area in our docket,” Perez said, citing investigations in multiple states. ”And we have an investigation in your neck of the woods in a matter,” referring to allegations of discrimination in the Anoka-Hennepin School District.

Perez said the issue was one of “safety, whether it’s kids who are gay or kids who are Muslim or kids who speak English with an accent.”

“This is an emerging growth area, I regret to say. That’s why the President had a day-long summit on bullying and I very much appreciate your leadership in this area,” Perez told Franken, offering his support for the Student Non-Discrimination Act.

”Kids are dying, kids are being brutally assaulted, kids are scared.”

Franken mentioned the suit brought by the National Center for Lesbian Rights on behalf of a gay student at Anoka-Hennepin who was a “victim of harassment.”

“A student who I will call ‘E.R.’ faced physical assaults and pervasive bullying based solely on her sexual orientation and appearance,” Franken said. ”Sadly, harassment for students based on sexual orientation and gender identity is frequent and disturbing, and while the Matthew Shepard Hate Crimes Act provides some protection based against sexual orientation based violence, it’s clearly not doing enough for LGBT students.

Franken said that “we need an explicit ban” on discrimination against LGBT students in schools.

U.S. Sen. Chuck Grassley, who serves as ranking member of the Senate Judiciary Committee, said he welcomed an opportunity to provide oversight of the Civil Rights Division.

“The Civil Rights Division is well-deserving of oversight,” Grassley said during opening remarks. “I think the Division has pushing the envelope very far, and many of its decisions are questionable.

“The Division has taken extreme positions in religious employment cases, seeking to make school districts accommodate teachers very disruptive and unreasonable demands for time off. It has brought actions against school districts based on reading the term ‘sex’ to mean ‘sexual orientation.’”

Grassley questioned Perez regarding partisan motivations that might be present in the Civil Rights Division as well as in relation to a U.S. House investigation of alleged voter intimidation. In the case, Grassley said whistleblowers testified that the DOJ has refused to prosecute the case because it allegedly involved African Americans intimidating Caucasians. Grassley pushed Perez toward a pledge to release any and all documents related to the incident to the U.S. House Committee in question. Perez said the DOJ, and specifically the Civil Rights Division, has been “incredibly responsive” to the House requests.

(Lynda Waddington contributed to this report.)

According to Department of Justice attorneys in Washington State, it is not outside the realm of possibility.

As the Washington Legislature debated legislation to broaden that state’s medical marijuana operations, Governor Christine Gregoire wrote a letter to U.S. Attorney General Eric Holder asking for guidance.

Holder, of course, did not write back. Instead Gregoire got a letter from U.S. Attorneys Jenny A. Durkan and Michael C. Ormsby of the U.S. Department of Justice Eastern District of Washington.

In this letter, dated April 14, the attorneys write that after consultation with Holder, the feds are prepared to enforce the Controlled Substances Act “vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law. The Department’s investigative and prosecutorial resources will continue to be directed toward these objectives.”

The letter makes it clear it is not just people involved directly in the medical marijuana trade who might be prosecuted. The letter specifically states that landlords and financiers could be prosecuted.

Then, the zinger: “In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.”

See the letter here (PDF).

That legislation passed this week, and the governor has vowed to veto at least part of it, out of fear, she says, that state employees could be prosecuted.

She issued this statement Thursday:

“I realize the value that medical marijuana has for patients and support the voter-approved initiative. I also agree with the intent of the Legislature to clarify ambiguity surrounding search and arrest as well as concerns around dispensaries and access. We need to create a system that works.

“I asked the Legislature to work with me on a bill that does not subject state workers to risk of criminal liability. I am disappointed that the bill as passed does not address those concerns while also meeting the needs of medical marijuana patients.

“I will review the bill to determine any parts that can assist patients in need without putting state employees at risk. No state employee should have to break federal law in order to do their job.”

Not wanting to be left out of the debate, the New Jersey attorney general has written a letter to Holder asking whether people participating in that state’s medical marijuana program are in danger of prosecution.

Mike Saccone, communications director for the Colorado Attorney General’s office said the AG’s office was aware of the Washington letter. He said it is clear that the Department of Justice is not giving states with legalized medical marijuana a free pass based on the Ogden memo (below). He said the letter does raise questions about Colorado’s own medical marijuana industry that may need to be addressed at some point. At this time, he said Colorado had not received any similar letters.

“What we’re seeing is a complete reversal of the 2009 Ogden memo,” said attorney Richard Gee, who does a lot of medical marijuana work.

Some medical marijuana advocates think the Ogden memo essentially says federal law enforcement will look the other way if states legalize and regulate medical marijuana. Others say it did not go that far. You can read the memo here.

Quoting from the 2009 memo itself, it is clear the feds were not giving up the right to prosecute even those in compliance with state medical marijuana laws. To wit: “Of course, no State can authorize violations of federal law.”

And this:

Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law. Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.

If there was ever any question about whether states, and medical marijuana businesses authorized by states, could hide behind the Ogden memo, those days are over as more recent memos ably illustrate.

Gee said that under the CSA (Controlled Substances Act), the feds can go after anyone involved in buying or selling marijuana.

While he said he found the Washington letter troubling, he did not think Colorado is going to get a similar letter any time soon. He said Colorado has one of the best defined and best regulated medical marijuana frameworks in the country, and that fact may keep the feds at bay here.

“There has not been any prosecution of legitimate medical marijuana businesses in Colorado, nor have there been any threats,” he said.

He noted that federal law absolutely trumps state law, and that the federal government could crack down on medical marijuana in Colorado if it wanted to.

Criminal attorney Kristi Martinez, who has been a medical marijuana patient, said the idea of DOJ saying state employees are not immune raises the question of complicity.

“If the state is issuing licenses for something illegal under federal law, is the state complicit? If a state official grants a license for something illegal under federal law, is that state employee complicit? Are they conspiring to break federal law?”

She said when voters passed the constitutional amendment making medical marijuana legal in Colorado, the state then took the next logical step of crafting a framework to regulate the business. “If the state creates a regulatory framework for medical marijuana, is the state complicit? If law enforcement officials are present in rooms where regulations are being crafted, are they complicit, are they committing conspiracy?” she asked.

“That is an argument that can be made,” Gee said. “Marijuana is illegal under federal law. Could the feds prosecute state employees? Yes, they could. Will they do it? I doubt it.”

Laura Kriho, spokesperson for the Cannabis Therapy Institute agreed that the feds will probably not prosecute state employees. If they do, she said, they might well start with former governor Bill Ritter, who signed legislation regulating medical marijuana in Colorado.

She disagreed with Gee about Colorado being better regulated and thus less likely to face federal scrutiny. She said Washington’s regulations were tighter than Colorado’s. “I don’t think the feds care how well regulated it is. It is all illegal to them.”

She said that even before the Washington memo and a similar one sent to officials in California, the Ogden memo itself offered little protection. “That was an allocation of resources memo.” Indeed much of the memo dealt with the fact that the Department of Justice has limited resources and can’t chase down every dope smoker with a pot card.

“I bet we get a letter like that (Washington) soon,” she said.

Real estate agent John Wickens does a lot of work with the medical marijuana industry, brokering sales of retail locations as well as leases of warehouses used for growing marijuana.

Thus far, he said his clients do not seem to be nervous about attention from federal law enforcement.

“I have not heard anything,” he said.

Like Gee, he said Colorado seems to be the strongest state for medical marijuana. He says there is still lots of money coming into the state.

Among his clients are people who own hundreds of thousands of square feet of commercial real estate and who are still comfortable doing business with medical marijuana clients. “These are smart, careful, successful people and they would not be renting space for grow operations if they were concerned about losing their property,” he said.

The Department of Justice did not return a phone call.

In related news, this week Americans for Safe Access, issued a “report card” to President Obama, giving him an F for his handling of medical marijuana issues.

The ADA provides federal civil rights protections to persons with disabilities in public accommodations, employment and state and local government services. The DOJ learned that public and private trade schools for barbering, cosmetology, massage therapy, home health care work and other occupations, as well as state licensing agencies, may be illegally denying individuals with HIV/AIDS admission to trade schools or occupational licenses because of their HIV status. Because HIV cannot be transmitted by casual contact or by circumstances present in these occupations, according to the DOJ, the status of such individuals is irrelevant.

In the letter, Assistant Attorney General for the Civil Rights Division Thomas E. Perez asked state officials to review their respective jurisdictions’ admission and licensing criteria for trade schools and licensing agencies to identify the existence of any criteria that unlawfully exclude or discriminate against persons with HIV/AIDS, and to make necessary adjustments to bring those programs into compliance with ADA.

“It is critical that we continue to work o eradicate discriminatory and stigmatizing treatment towards individuals with HIV based on unfounded fears and stereotypes,” Perez said. “The ADA clearly protects individuals with HIV and other disabilities from this kind of exclusion or marginalization.”

The letter follows a December 2010 settlement agreement with Modern Hairstyling Institute Inc., a private cosmetology school in Puerto Rico, for delaying the admission of an HIV-positive person. The agreement requires the school to remove questions about applicants’ HIV/AIDS status and to promptly enroll the aggrieved individual in its program.

DOJ officials have also developed a white paper regarding HIV/AIDS and the Americans with Disabilities Act.

The National HIV/AIDS Strategy has called for a significant reduction of the stigma and discrimination experienced by people living with HIV. It is believed such practices undermines ongoing efforts to encourage all people to learn their HIV status, and to disclose their status to others who can provide understanding and support.

It also means the DOJ’s Executive Office for Immigration Review is finally following through on its promise to fill vacancies in the courts, where one in six positions stood vacant as of March. The agency promised to fill the 48 vacancies on immigration courts by the end of the year. They’re not there yet, but Chief Immigration Judge Brian M. O’Leary said the recent addition put the courts on their way to being fully staffed.

“These new immigration judges bring the judge corps of our 59 immigration courts to 262, and we expect to further enhance the corps by additional immigration judges before the end of the calendar year,” he said in a press release.

Vacancies mean longer wait times for hearings and more time in detention centers — plus shorter hearings in a system that already is considered assembly-line justice. Immigration judges had about 70 minutes per case, the shortest time on record from 1998 to the present, according to a March study from Syracuse University’s Transactional Records Access Clearinghouse. In some cases, this means considering multiple cases at the same time, including mass hearings of up to 80 people.

Immigrant rights advocates argue the backlogs make real justice next to impossible, adding to a number of other complaints about the way immigrants are treated in the civil deportation process.

Some rights groups might have one problem with the new judges hired by the DOJ. A look at their biographies shows that a majority have experience in immigration law specifically, but at least 15 of the 23 worked for the Immigration and Customs Enforcement at the Department of Homeland Security, its predecessor Immigration and Naturalization Services or the Executive Office for Immigration Review at the Justice Department.

Immigration attorneys argue that taking judges from DHS adds to the tension of the process. “They’re your archenemies for fifteen years and now they’re the judge,” Glenn Fogle, an Atlanta immigration attorney, told The Nation.

Today’s meeting in San Francisco proceeded much like a meeting in Arlington, Va., last week: An ICE official acknowledged misinformation surrounding the opt-out process for Secure Communities, but ultimately said counties cannot prevent fingerprints collected for criminal background checks from being shared with ICE for immigration enforcement.

The program runs up against San Francisco’s sanctuary ordinance, which forbids cooperation with ICE unless mandated by the courts or federal or state law. Sharing fingerprints, then, will still be mandatory, but San Francisco may be able to enact other changes, such as no longer holding illegal immigrants who are run through the Secure Communities system but not charged with a crime, Eileen Hirst, a spokeswoman from the San Francisco Sheriff’s office, said after the meeting.

Secure Communities director David Venturella reportedly said in the meeting that local law enforcement is not required to respond to requests by the agency to hold suspected illegal immigrants. These holds, called detainers, have been criticized for imposing costs on local police and netting too many non-criminal illegal immigrants who would otherwise be released.

Although Sheriff Michael Hennessy — a vocal critic of Secure Communities — has not yet reached a decision, Hirst said he could decide his department will no longer honor all of the detainers issued by ICE, meaning San Francisco would again let some known undocumented immigrants go free.

Still, the word from San Francisco officials that Secure Communities is mandatory is a blow to rights groups that say ICE deceived communities into thinking sharing fingerprints was optional. Advocacy groups seem unlikely to drop the issue. After Arlington’s county manager released a memo reporting the county could not opt out of Secure Communities after her Nov. 5 meeting with ICE, immigrant rights activists said they would continue to push for more information on the opt-out process.

Lucero Beebe-Giudice, a spokeswoman for Tenants and Workers United, told TWI yesterday that opponents of the program are awaiting the results of a Freedom of Information Act request to ICE on policy agreements, program communications and technology records. Immigrant rights groups hope to get information on whether it would be technologically possible to give fingerprints to the FBI for background checks without forwarding them to ICE — which would then allow communities like Arlington and San Francisco to make a new push to be removed from the program.

Santa Clara, Calif., the third community that requested an opt-out meeting, is holding a meeting on Secure Communities with ICE this afternoon.

The judges will hear arguments from the Department of Justice, which filed a suit against the law in July, and the state, with 30 minutes for each side. If you want to watch, the hearing will be broadcast on CSPAN at 9 a.m. Pacific time, noon Eastern.

At stake is whether the law will continue to operate in its limited form, where it has yet to make much impact on policing immigration in Arizona. Law enforcement officials and human rights groups said they haven’t heard of additional arrests or stops under the law, although the provisions feared to provoke racial profiling have been blocked.

A number of groups, politicians and governments have come to the support of both Arizona and the Department of Justice, with amicus briefs filed on both sides to argue the law should or shouldn’t be allowed to go into effect. On Arizona’s side are a number of state attorneys general — particularly Republicans running for governor — and Maricopa County Sheriff Joe Arpaio. The Mexican government and a number of human rights organizations support the Justice Department’s attempt to block the law.

No matter which way the judges rule, it’s unlikely the battle over SB 1070 will stop there. Arizona officials, including bill author state Rep. Russell Pearce (R), have promised to take the fight to the Supreme Court, if necessary. Plus, there are a few other pending lawsuits over SB 1070: Federal Judge Susan Bolton has yet to rule on Saldago v. Brewer and has not heard or ruled on National Coalition of Latino Clergy and Christian Leaders v. State of Arizona or LULAC v. Arizona.

The most interesting detail: One of the judges, Carlos Bea, was nearly deported in the early 1950s after making a mistake in the visa process to re-entry the country after time abroad. Score one for the Department of Justice’s case against SB 1070, which is partially based on complaints that the law is anti-immigrant.

It gets more complicated from there. Bea is viewed as a conservative on the court and was appointed by George W. Bush in 2003. One of the other judges, John Noonan, was also appointed by a Republican, while Richard Paez was selected by Bill Clinton. Despite the judges’ party affiliations, observers have speculated the panel could be tough on Arizona for perceived racial profiling created by SB 1070 because two of the judges have Hispanic backgrounds. Paez’s parents were born in Mexico, while Bea was born in Spain but lived in Cuba before moving to the United States.

Noonan, the Republican non-Latino on the panel, has a ruled in favor of immigrants seeking asylum and tends to side with the federal government over states, Ira Ellman, a law professor at Arizona State University, told the Tribune.

In total, the two stories list roughly three factors that could help Arizona’s case (two Republicans on the court, one who usually votes conservative) and six factors that could help the Justice Department (two Latinos on the court, including one who was nearly deported, one Democrat, plus two judges who often side with the federal government).

It’s still hard to say how the panel will rule, but lawyers seem to think the Department of Justice has a good chance of prevailing with the panel as it did with the federal judge in the first challenge. Gerstein writes that lawyers familiar with the court told him the panel seemed more likely to favor the Obama administration and civil rights groups than Arizona.

Arpaio became famous for his purposefully harsh treatment of illegal immigrants and his push for round up the undocumented in Maricopa County, Ariz., through controversial sweeps of immigrant-heavy neighborhoods. He likes to call himself “America’s toughest sheriff,” but others have compared him to Hitler and accused him of “treating people like circus animals.” Arpaio has a few tactics for doing this, including the clothing he issues to the detainees in his “Tent City”: black-and-white striped uniforms and pink underwear.

This type of treatment has earned him numerous condemnations from human rights groups. He also faces a Department of Justice investigation into alleged civil rights violations by his office and a lawsuit to hand over related documents. Arpaio’s office was accused in late September of misusing up to $80 million in taxpayer funds.

Meanwhile, Arpaio has upped his national profile by endorsing Tea Party candidates and appearing in campaign events. Although he said he plans to stay sheriff, there has been some talk of seeking higher offices — even the presidency. After Arpaio visited New Hampshire in September, his spokesman acknowledged, “People just don’t go to New Hampshire if they are not interested in these things.”

It seems unlikely the bill will go anywhere, given that legal scholars say it blatantly violates the 14th Amendment. But Pearce, who has been discussing anti-birthright citizenship since June, has moved forward anyway and plans to introduce it in January during the next legislative session. Kobach shot down the Arizona Republic’s request for details on the bill: “We aren’t announcing anything yet, as the drafting is not complete,” he said in an email.

A move to end automatic citizenship may have some support on the national level, where numerous Republicans have come out against “birth tourism” and “anchor babies.” But a repeal of the 14th Amendment that grants native-born citizenship would need far more support to succeed: Constitutional amendments must be approved by two-thirds of both houses of Congress and at least 38 states.

Pearce’s bill would instead remove citizenship at the state level, which legal experts say is directly in conflict with the Constitution. (Kobach, interestingly, is a constitutional law professor.) Last time Justice Department officials felt Arizona was preempting their authority on immigration matters, they sued the state to stop it. If the state were to pass Pearce and Kobach’s bill, it seems likely another lawsuit would result.