Libertarian Hawk


Ruth Bader Ginsburg: The Supreme Court’s Drama Queen

July 02, 2014 By: Scott Spiegel Category: Health Care

???????????????If Justice Clarence Thomas is the Supreme Court’s intellectual leader, surely Justice Ruth Bader Ginsburg is its resident drama queen.

On Monday the Supreme Court decided 5-4 in favor of craft supply store Hobby Lobby and cabinet maker Conestoga Wood Specialties, which filed suits against the federal government in 2012 opposing Obamacare’s mandate that they offer 20 birth control methods to employees or pay fines of up to $1.3 million daily.

The Court ruled that these “closely held” family-owned businesses aren’t obligated to offer 4 out of 20 birth control options they object to, at least one of which is considered an abortifacent or “morning-after pill.” Such a requirement, the Court ruled, violates the 1993 Religious Freedom Restoration Act.

Mitigating the left’s inevitable claim that the ruling constitutes another salvo in the war on women, here are all the things female Hobby Lobby and Conestoga employees can do if they don’t like the decision:

  • Use one of the other 16 methods of birth control Hobby Lobby and Conestoga offer;
  • Pay out-of-pocket for one of the 4 methods not offered;
  • Apply for government-funded coverage directly from insurers, just as employees of non-profits who object to paying for birth control can do, to obtain one of these 4 methods;
  • If it’s that big a deal to them to work for an employer that makes Sandra Fluke happy, choose one of the 8 million other companies in the country who offer all 20 methods.

Instead, the White House is jabbering about setting up a federal fund to pay for birth control, and Senate Democrats are chewing over legislation to ensure that every woman in America has free morning-after pills perpetually at her fingertips.

Meanwhile, back on the bench, three of the four liberal Justices had the sense to cast their votes and then keep their contorted reasoning to themselves.

But leave it to the histrionic Ginsburg, who gets inspiration for deciding Supreme Court cases from the opera, to hyperventilate for 35 pages about the disastrous consequences of the majority decision in a separate dissent.

Here are a few nuggets from Ginsburg’s jeremiad:

Ginsburg claims that the decision will wreak “havoc” on society. She argues that birth control facilitated women’s entry into the labor force, and that not requiring every employer to give out free morning after pills will drive women back to a barefoot and pregnant state of existence.

Ginsburg warns that the decision will require “the government, i.e., the general public, [to] pick up the tab” for birth control pills if employers don’t cover them. But only in the fevered imagination of a liberal does a commercial transaction require the federal government to either (1) force some private party to pay for it or (2) force taxpayers to subsidize it. How about individuals who want it buy it themselves?

In the most sweeping section of her dissent, Ginsburg slams the Citizens United (2010) decision and analogizes the two cases, claiming there is “no support for the notion that free exercise rights pertain to for-profit corporations. Until this [Hobby Lobby] litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law.”

She adds, “The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.” To which I would respond: Tell that to Marriott Hotel, which phased out pay-per-view adult TV and stocks its rooms with The Book of Mormon; In-N-Out Burger and Forever 21, which print Bible verses on their packaging; Whole Foods, whose CEO incorporates Buddhist philosophy into his management practices; and dozens of other corporations whose religions motivate their values.

Justices Stephen Breyer and Elena Kagan, who agreed with Ginsburg’s ruling, politely distanced themselves from large chunks of her nutty rantings, averring, “We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993.”

Is it any wonder that a justice who thinks government has the right to trample on people’s checkbooks when they refuse to buy a product on the private market also thinks it’s OK to force citizens to follow a law even if it tramples on their religious freedom?

Ginsburg gives the game away when she writes, “The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”

So Ginsburg thinks it’s peachy to crush religious liberties if that’s the least painful way to ensure some crucial government goal—in this case, the left’s century-long dream of socialized medicine.

Come to think of it, if I were a liberal who had been drooling over the fantasy of national health care for 81 years and faced the prospect of having it snatched away, I might react dramatically, too.

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Democrats: Stuck Between Little Rock and a Hard Place

January 15, 2014 By: Scott Spiegel Category: Racism

byrdIn an egregiously dishonest news segment, National Public Radio reporter Debbie Elliott recently commemorated the 60th anniversary of the Supreme Court’s Brown v. Board of Education desegregation ruling by implying that nothing has changed since then.

Elliott began by recalling the tumultuous integration of Central High School in Little Rock, then reviewed a longstanding, expensive, state-funded program that Arkansas instituted in the 1980s to prevent “white flight” and keep Little Rock’s school district relatively desegregated.  Federal courts oversaw the costly program for decades, but recently Arkansas and the district agreed to a settlement that would phase out the state’s efforts to keep the district racially mixed.

Columnist Ernie Dumas lamented to Elliott, “The Supreme Court said at the time that you’ve got to desegregate, and end these disparities, and take us forward to a glorious day when education will be equal for all Americans.  As we know… it hasn’t really happened quite that way.”  Dumas’s implication is that Brown endorsed, not mere equality of educational opportunity, but equality of results, and that voluntary white flight to better schools has the same legal and moral status as state-ordered segregation.

Elliott concluded with this quote from a local superintendent: “‘I have had a lot of people comment about their kids going to schools where black students are, and not wanting to.  And I believe that’s still, unfortunately, a truth about human nature.’  A truth, he says, that courts don’t have the ability to change.”

What Elliott was doing was perpetrating a crafty little sleight-of-hand on NPR’s listeners.  Her story subtly implied that present-day conservatives—whom outlets like NPR constantly accuse of racism—are the contemporary version of people who refused to send their children to school with black children in the 1950s, and that, since it’s conservatives who are racists today, then it’s their type who were the racists back then.

However, as Elliott surely knows, not wanting your kids to go to school with black children in the 1950s and being leery about having your children attend predominantly black inner-city schools today are entirely different phenomena.

In the 1950s, racist Southern Democrats didn’t want to send their white children to school with black children because of their belief in Negros’ inferiority.  During the late 1950s and early 1960s, when Republican politicians were championing, passing, and enforcing civil rights legislation over the opposition of Democrats, the South was a genuinely racist environment, in which black families couldn’t get a fair shot at equal educational and employment opportunities.

During the 1960s, the Democratic Party realized that the country was slowly embracing civil rights protections, so Lyndon Johnson coopted Republican progress on achieving racial equality and adopted the mantle of the heroic Civil Rights President by loudly announcing his support for civil rights bills (while privately revealing his racist motives for signing them).

Then a funny thing happened.  Instead of simply correcting their racist ways, the left started going overboard in the other direction, no longer supporting equal treatment of races but rather favoring the conferral of material advantages on blacks and insisting on equality of outcomes.

If you draw a graph with time on the x-axis and pro-black bias on top and pro-white bias on the bottom, Democrats cruised along for a century in the pro-white section; then, around mid-20th century, started curving upward; and finally, around 1965, crossed the axis and started trending above the line—thus producing a mirror image of their former racist selves, but against a different group.  (The Republican path, meanwhile, would be a straight, solid line from left to right, from the party’s inception in 1854 to the present day.)

Whether to compensate for perceived guilt or cover their bloody tracks, Democrats started pushing for affirmative action benefits, cradle-to-grave welfare, and a generalized stance of coddling and encouragement of black dysfunction.  By excusing and subsidizing failure, and insisting that educational and employment offerings be untethered from merit, the left set black accomplishment, family stability, and moral accountability back by decades.

To cap off their grand scheme, Democrats fabricated the narrative that they were the ones who had always deeply cared about black people, and that Republicans—many of whom lived in the South—were the historical racists.  Democrats foisted this myth on the public by smearing present-day Republican efforts to deny special benefits to minorities, then inappropriately connecting these efforts with false historical records.  For example, if you don’t favor spending billions on a worthless program like Head Start that serves largely minority children, then you’re racist, aren’t you?  And if you Republicans are racist now, then you would have belonged to the racist Southern Democratic Party in the 1950s, right?

(Wrong.  Virtually all of the Dixiecrat segregationists returned to the Democratic Party after 1964.)

But what about those contemporary parents who don’t want to send their kids to school with blacks, and who move to the suburbs to avoid doing so?

White, Asian, Indian, Hispanic, black immigrant, and even African-American parents in 2014 expressing ambivalence about sending their children to predominantly black urban schools has nothing to do with race.  These parents simply don’t want to send their kids to schools with compromised standards, underachievement, misbehavior, and violence, all of which unfortunately disproportionately exist in majority-black secondary schools.

In other words, parents don’t wish to send their children to school environments that Democrats created via decades of patronizing treatment of the black people they formerly abused.

Democrats obfuscate matters by pretending that government-sanctioned segregation is the same as concerned parents wanting to send their children to schools Democrats haven’t screwed up.

The left today not only lies and claims that we’ve made no progress on racism, they rewrite history to make it seem that Republicans were always the racists, and that Democrats stepped in as black people’s saviors.  The truth is the exact opposite.

How sad that Democrats choose to commemorate the anniversary of Brown, the desegregation of Little Rock, and every other civil rights milestone by pretending that Republicans are still the racists they never were.

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Clarence Thomas, The Supreme Court’s Intellectual Leader

June 26, 2013 By: Scott Spiegel Category: Racism

clarence_thomas_photoOn Monday the Supreme Court decided the affirmative action case Fisher v. University of Texas with a ruling that some had predicted might augur broader implications for the use of race in university admissions but will likely have a limited impact.  The Court ruled 7-1 that an explicitly race-based UT admissions policy is allowable, as long as it is targeted to the school’s educational goals and is not used for racial balancing.  The Justices ordered the lower court that decided against plaintiff Abigail Fisher to give the state’s policy another look.

More interesting than the majority opinion was Justice Clarence Thomas’s lengthy concurring opinion, which harshly condemned the decision—Grutter v. Bollinger, 2003—that buttressed UT’s admission policy.

Rather than spending pages trying to conform to the tortured logic of previous court decisions that obliquely justified race consideration in university admissions, as the majority opinion did, Thomas directly laid out the case against racial discrimination as such, digging up quotes used by defenders of slavery and segregation that sound remarkably similar to excuses affirmative action defenders repeat today.

For example, Thomas quoted slavery defenders arguing that the institution benefitted blacks: “Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually.”  Similarly, segregationists used to claim that school segregation helped blacks: “We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted.”

Nowadays, Thomas notes, we hear affirmative action defenders such as the UT admissions board argue that race discrimination will allow blacks to feel more “secure,” be among their own kind, and take advantage of more “leadership opportunities.”  Thomas rebuts those claims: “The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”

Modern-day Democrats were no doubt horrified to hear themselves compared to slaveholders and segregationists—i.e. fellow Democrats of yore.  (MSNBC’s Chris Hayes led his Fisher segment Monday night with the line, “Guess who Justice Thomas compared to slaveholders and segregationists today?  Me!  And probably you, too…”)

Though Justice Thomas concurred with the majority opinion—the Court ruled on only a narrow aspect of Fisher—his stinging rebuttal of Grutter v. Bollinger constituted a de facto rejection of the majority’s decision.  (The lone dissenting Fisher vote was from Justice Ruth Bader Ginsburg, who was happy to trust the University when it said its racial discrimination policy was copacetic and needed no further scrutiny.)

But the rest of the Court was too deferential to Grutter.  Six Justices besides Thomas upheld the view that, if colleges are going to consider race in university admission policies, they must be prepared to justify why doing so is necessary.  The Justices ruled that courts shouldn’t blindly trust universities on whether their race-based policies are being implemented narrowly enough, but conceded Grutter’s finding that courts must show universities “deference” in trusting that these policies support their educational goals.

Yet government should not be allowed to use race at all in hiring or acceptance decisions in the public sector.  Title VI of the Civil Rights Act of 1964 expressly banned race discrimination in programs that receive federal money, even though the Court has steadily weakened this prohibition over the years (e.g., University of California v. Bakke, 1978; Grutter).

The Supreme Court has previously ruled that it is acceptable to use race as a “plus factor” in admissions because of the educational benefit that supposedly results from “enhanced classroom dialogue.”  Yet this benefit obviously doesn’t extend to a white student like Fisher, who was denied admission to the 2008 UT Austin class, but whose parents nonetheless must subsidize less-qualified students with their tax dollars.

To the extent that the Court addressed admission policy at all, it should have cited academic achievement, accomplishment in extracurricular activities, teacher recommendations, personal character—anything and everything but skin color—as acceptable factors to consider.  But the Supreme Court’s 5-4 ruling in Grutter allowed race to be explicitly weighed.  And almost no one in Monday’s majority opinion even questioned that ruling.

Only Justice Thomas saw fit to dissect the Grutter decision.  His eloquent opinion and willingness to go against the crowd revealed him once again to be the unheralded intellectual leader of the conservative wing of the Supreme Court.

Previously published in modified form at Red Alert Politics

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Grasping at Straws To Oppose Same-Sex Marriage

March 27, 2013 By: Scott Spiegel Category: Gay Rights

scared-rush-limbaughI hate taking Rush Limbaugh down a peg as much as any conservative—and am usually found defending his quotes against the left—but listening to him on Tuesday afternoon deconstruct the same-sex marriage debate and oral arguments presented to the Supreme Court on California’s Proposition 8 was downright painful.  Principled opposition to same-sex marriage is abundant, though dwindling, but lately Rush and other conservatives seem to be grasping at straws:

  • According to one caller to Rush’s show who was an appellate litigator in Los Angeles, Prop 8 defenders didn’t have standing to ask the Ninth Circuit Court of Appeals to overrule California’s enactment of the law after Governor Arnold Schwarzenegger decided not to defend it anymore.  Therefore, the Supreme Court must invalidate the Ninth Circuit’s ruling overturning Prop 8.

Yes, you read that correctly—the defendant (the state of California) decided to no longer defend its original opposition to gay marriage; therefore, the plaintiff can’t challenge the defendant’s original position, and Prop 8 must stay on the books.  Only if the defendant still supported Prop 8 could the plaintiff challenge it—but not if the defendant had dropped all support for it.  Even the conservative Supreme Court Justices should make mincemeat of that argument.

  • According to Rush, same-sex marriage proponents have made such inroads in pushing their case in the media that those discussing the issue are now required to recite “opposite-sex marriage” instead of just “marriage.”

This is patently ridiculous, in that (1) commentators who oppose same-sex marriage have never, to my knowledge, been bullied into saying “opposite-sex marriage”; (2) such pundits already have to add a less precise modifier—“traditional”—if they want to indicate that they’re talking about opposite-sex marriage; and (3) if same-sex marriage proponents are correct, then marriage for same-sex couples is simply “marriage,” not “gay marriage,” and it’s opponents who are forcing the distinction.  (No man has ever asked a woman, “Will you opposite-sex marry me?”  Has any man ever asked another man, “Will you gay marry me?”)  During the legal debate over same-sex marriage, both sides have to clarify their terms, but that doesn’t mean same-sex marriage proponents are trying to trick people with language.

  • Speaking of forcing, according to Rush, same-sex marriage has never won at the ballot box, only when courts or legislatures have forced it on them; every time same-sex marriage has been put to a popular vote, it’s been rejected.

Conservatives have been using this canard for so long that perhaps Rush was reciting it out of habit, but even I was surprised at his erroneous repetition of this claim (which Mark Levin restated on his Tuesday evening show).  On a single night in November 2012, voters in state referenda legalized same-sex marriage in Maryland, Washington, and Maine, and voted down a proposed ban on same-sex marriage in Minnesota.  I know a lot of us conservatives have tried to block out the fog of Election Night 2012, but did Rush have the whole evening lobotomized from his brain?

  • According to Rush, conservatives don’t try to force their will on the people like liberals do.

Except with, um, referenda like Prop 8, as well as dozens of referenda states have enacted or tried to enact to ban same-sex marriage.  Also state referenda like the one in North Dakota that would effectively ban abortion, or Mississippi’s infamous “personhood amendment.”  Or referenda to remove state court justices, force public funding of religious institutions, or secede from the nation.  Other than that, conservatives never, ever use state referenda.

  • Rush claimed that our Founding Founders could never have envisioned same-sex marriage several hundred years down the road; therefore, the Supreme Court cannot infer original Constitutional intent for the institution.

Original intent refers to broad principles that are applied to concrete instances, and invoking original intent doesn’t imply that our Founders supported or could have foreseen every specific example those principles would ever cover.  Our Founders never thought we’d have interracial marriage, women voting, or a half-black President, either.

If I were the type to casually label entire groups of people based on what I thought they believed, rather than asking them what they believe, I would ascribe bigotry to gay marriage opponents who assume supporters all cynically label them as bigots.  But I’m not, so I’ll assume that they’ve just had a few bad experiences with shrill same-sex marriage proponents and should try discussing the issue with a wider array of supporters, including those who respect their prerogative to thoughtfully evolve on the subject.

There are a thousand other stupid arguments made against gay marriage that have been shot down as ridiculous again and again, and I applaud Rush for not trotting out the more shopworn and vulgar ones.  But c’mon, Rush—you can do better.

Or maybe today’s show proves that, on this issue, you can’t.

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Congress’s Taxation Power: The New “Interstate Commerce” Clause

July 04, 2012 By: Scott Spiegel Category: Health Care

On Thursday the Supreme Court rejected the Obama administration’s justification for the Affordable Care Act’s individual mandate as being covered by the Interstate Commerce Clause, since the law as written would not regulate commerce but compel it.

The court nonetheless upheld the individual mandate, which requires people to buy health insurance from private companies and health insurance marketplaces.  The administration had characterized the penalty for not buying insurance as such, yet also asked the court to consider it a tax for the purpose of preventing the plaintiffs from suing, since under the Tax Anti-Injunction Act taxes may be challenged in court only after they have been paid.  Roberts and the majority agreed that the penalty could not be considered a tax for the question of whether the plaintiffs could bring suit now.  Yet in their view, it was perfectly acceptable for the penalty to be considered a tax for the purpose of forcing people to buy health insurance.

Roberts admitted, “Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes.’”

Yet in the majority opinion he wrote, “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”

And therein lies the rub: Not purchasing health insurance is not an “activity.”  It is a non-activity.  (The hint is the word “not.”)

According to Roberts’ (correct) reasoning, “not buying healthcare” is not commercial activity the government can regulate through the Interstate Commerce Clause.  Yet somehow “not buying healthcare” is commercial activity the government can tax.  How can “not buying health insurance” be non-activity and activity at the same time?

Some conservatives hunting for a silver lining have argued that at least the ruling limited the provenance of the Commerce Clause.  Yet the ruling simultaneously expanded the purview of Congress’s taxing power in such a way as to potentially make up for almost anything the Commerce Clause doesn’t cover.  What have we gained?  What good is restriction of the Commerce Clause if, due to the expansion of other powers, it can’t protect us from abominations like Obamacare?

The ruling expanded Congress’s taxation power in at least three ways.  First, we now know that non-activity can be taxed.  When has the federal government ever taxed non-activity?  Penalized, yes—but taxed our not doing something?

Second, we know that even something that was explicitly disavowed as a tax by its creators and defenders can be considered a tax, if five Supreme Court justices feel like rewriting the law and considering it one.

Third, as spelled out by Roger Pilon, “[T]he power to tax… was designed to enable Congress to obtain the funds needed to carry out its other enumerated powers or ends.  It was not, as Madison made clear in Federalist 41, and often on the floor of Congress, an independent power to tax for any purpose at all.  Search as you will through those 18 enumerated powers and you will find no power to enact ObamaCare or anything like it.”  But thanks to Chief Justice Roberts, we now know that the federal government can levy taxes for any reason it wants, whether it needs the money for any enumerated power or not—and remember that the individual mandate, if it operated properly, would result in $0 revenue.

Also disturbing is the fact that the justices may not have even reaffirmed the limits of the Commerce Clause.  As Mark Levin wrote, “If five justices had intended for their view of the commerce clause (and necessary and proper clause) to be controlling as the majority view, they would have said so by joining or concurring in each others’ [written arguments].  They didn’t.  So, while we can cobble them together, as a formal legal matter, it is a troubling issue.  While the status quo stands re the commerce clause (and necessary and proper clause), there was no formal majority on those issues.”

Of course all this chitchat about RobertsCare will go over the heads of most liberals, for whom I want to ask, not “How is the healthcare law constitutional?” but “Do you even care whether it’s constitutional?”  This is the same group of people, after all, who consistently defended the law, not by talking about its legal soundness, but by claiming that the Heritage Foundation and Mitt Romney had instigated it.  These are the same folks who for two years eschewed discussion of Obamacare’s constitutionality for posting pictures of sad-eyed looking children on Facebook with captions like “Yolanda Rodriguez can finally get treatment for her spina bifida!”

So now we can rest assured that Congress will never mandate that we buy broccoli, drink skim milk, or do calisthenics.  It’s just going to tax us to death if we don’t, and with the imprimatur of a “conservative,” Republican-appointed Supreme Court Chief Justice.

Previously published in modified form at Red Alert Politics

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Obamacare, We Hardly Knew Ye

June 27, 2012 By: Scott Spiegel Category: Health Care

Ahead of the Supreme Court’s likely overrule of Obamacare’s individual mandate, and possibly the entire act, here’s a retrospective of the most hilarious and horrifying quotes from bill supporters over the first three-and-a-half years of Obama’s wasted first term.  Hey libs—Thanks for the memories:

1. “If you like your health care plan, you can keep your health care plan.”  Barack Obama.  Demonstrably false, given that employer-based plans—which over 60% of the population holds—are required to meet Obamacare specifications within five years, so if your current plan doesn’t meet these regulations, your employer will soon have to change it or drop it, if it hasn’t already done so.

2. “Are you serious?  Are you serious?”  Nancy Pelosi, when asked where the Constitution authorized Obamacare’s individual mandate.  Almost as good: “I don’t worry about the Constitution,” uttered by Illinois Representative Phil Hare at a townhall meeting.

3. “These are nothing more than destructive efforts to interrupt a debate…  They are doing this because they don’t have any better ideas.”  Senate Majority Leader Harry Reid on protesters and Congressional opponents trying to “sabotage” the Obamacare debate.  In fact, House Republicans had 32 better ideas than Obamacare in 2009 alone, including malpractice tort reform, Medicare reform, health savings accounts, healthcare tax credits, vouchers for private insurance, pay for performance, private market competition, and efforts to preserve individual autonomy regarding level and type of coverage and risk tolerance.

4. “These disruptions are occurring because opponents are afraid… of differing views…  Drowning out opposing views is simply un-American.”  Pelosi and former House Majority Leader Steny Hoyer trying to delegitimize the concerns of health care townhall protestors.  Compare this claim with liberal commentators’ mentally drowning out the constitutional arguments against Obamacare for two years, and suddenly being shocked that the Supreme Court appears poised to overturn it.

5. “The conjunction of a black President and a female speaker of the House—topped off by a wise Latina on the Supreme Court and a powerful gay congressional committee chairman—would sow fears of disenfranchisement among a dwindling and threatened minority in the country no matter what policies were in play.”  Frank Rich, claiming that Obamacare opponents are simply racists, and maybe sexists and homophobes too.  Yes, it’s true—we just couldn’t stand having African-American lesbian bill architects like Harry Reid, Kent Conrad, and Max Baucus.

6. “If you get an email or see something on the web about health insurance reform that seems fishy, send it to”  The Obama administration e-mailing supporters and asking them to spy on their fellow citizens.

7. “I remember in the last month of her life, she wasn’t thinking about how to get well, she wasn’t thinking about coming to terms with her own mortality, she was thinking about whether or not insurance was going to cover the medical bills and whether our family would be bankrupt as a consequence…  [T]he insurance company said that maybe she had a pre-existing condition and maybe they wouldn’t have to reimburse her for her medical bills.” Obama implying that his mother had had to battle health insurance companies when she was sick with cancer, when it was later revealed that her claims had been paid in full and it was disability compensation he was alluding to.

8. “We have to pass the bill so you can find out what’s in it.”  Nancy Pelosi.  And here most people thought it worked the other way around.

9. “I am romantic about the N.H.S. [the UK’s National Health Service]; I love it…  Do not trust market forces to give you the system you need…  I cannot believe that the individual health care consumer can enforce through choice the proper configurations of a system as massive and complex as health care.  That is for leaders to do.”  Donald Berwick, Obama’s recess appointment for Administrator of the Centers for Medicare and Medicaid Services.  Thankfully the explosively controversial nominee resigned a year later when it became clear Republicans would never vote to continue his appointment.

10. “[W]ell within the traditional bounds of Congress’s Article I power.”  Department of Health and Human Services Secretary Kathleen Sebelius on the federal government’s power to force people to buy health insurance, in a lame attempt to hedge against constitutional challenges to the individual mandate.

11. “They have to understand that the health care bill is not going to be repealed…  [They] should get a new lease on life and talk about something else.”  Reid dismissing Congressional Republicans’ Obamacare repeal efforts.  If the Supreme Court does what everyone expects it to do tomorrow, Reid may just be right.

12. “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  President Obama’s ignorant and deceitful comments ahead of Solicitor General Donald Verrilli’s disastrous effort to defend the administration’s position before the court during oral arguments in April.

13. “129 million Americans with a pre-existing condition could be denied coverage without [the] new health reform law.”  The Department of Health and Human Services cautioning against Obamacare repeal, in a claim promptly torn apart by the Cato Institute.  Also: “Thirty million Americans… are going to be able to get healthcare next year because of that law,” Obama recently defending his bill.  Newsflash: Healthcare is not health insurance, and most needy people can get healthcare through Medicaid, parts of Medicare, medical charity groups, or emergency rooms.  Most people without health insurance are temporarily lacking it while in-between jobs or choose not to pay for it.  The Obama administration hyped a nonexistent crisis in order to implement an unnecessary solution.

And the prize for most inane pronouncement in support of Obamacare goes to:

14. “Denying someone their life and liberty without due process…  Can you tell me what’s more unconstitutional than taking away from the people of America their Fifth Amendment rights, their Fourteenth Amendment rights, and the right to equal protection under the law?”  Texas Representative Sheila Jackson Lee on the legal implications of Obamacare repeal.  Everything is bigger in Texas, including stupidity.

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The Purpose of the Constitution Isn’t Efficiency, It’s Liberty

June 20, 2012 By: Scott Spiegel Category: Health Care

The Supreme Court’s impending Obamacare overrule seems to have liberal legal types anxious lately.

In their recent lecture-disguised-as-an-op-ed “Health Care Economics 101 And The Supreme Court,” University of Michigan professors Jill Horwitz and Helen Levy argue that by intervening in the health insurance market, government has the power to make healthcare uniquely efficient and affordable.

Assuming that that’s correct—and it’s not—so what?

Horwitz and Levy contest that upholding Obamacare’s individual mandate could lead to forcing people to buy broccoli or cars, as several Supreme Court Justices suggested during oral arguments in April.  They write, “[T]here are significant economic differences between health care and the list of goods the amicus brief and some of the Justices cited…  [T]he market for health care is characterized by multiple and substantial departures from the assumptions of perfect competition…  [A]ppropriately structured government intervention—which in this case means guaranteed issue, community rating, and an individual mandate—can actually promote efficiency, solving the problem of market failure and making the pie bigger for everyone.”

Actually, who cares?  Where in the Constitution can Congress force people to do something they don’t want, just because liberals think it will make life easier?  Actually, where does the Constitution give the federal government the power of central planning for the quixotic purpose of “making the pie bigger for everyone”?

Actually, where in the Constitution may I find the “Correcting Imperfect Markets for Competition via Abridgment of Individual Liberty” clause?

Horwitz and Levy toss out the following unconnected arguments in the hope that one of them will stick: the health insurance market operates poorly on its own; the health insurance market involves many interrelated parts, the failure of any one of which can compound failure in the others; an individual’s need for healthcare is unpredictable; the healthcare industry is high-stakes; the country is experiencing a health insurance crisis.

Not one of these reasons compensates for the egregious constitutional violation of forcing people to purchase a product on the private market against their will.

Obviously the health care market differs from the market for broccoli or cars—no one disagrees with that—though it’s not uniquely different from other markets we don’t allow the federal government to take over.

But all laws vary widely in their outcomes when applied to different referents.  The Fourth Amendment, which prohibits unreasonable search and seizure, could yield different consequences if applied to a pastor’s suburban home vs. a drug-infested housing project.

One could argue that government should be able to randomly invade run-down apartments in gang-infested inner cities, since the likelihood of finding illegal weapons, drug paraphernalia, or evidence of other crimes is much greater there.  You might say that such a law “can actually promote efficiency” in law enforcement.

But does the principle prohibiting government from wantonly entering private homes without a warrant and poking around apply universally, or doesn’t it?  If it applies universally, then it applies whether we’re talking about split-levels or slums.

Similarly, there may be compelling reasons from a pure efficiency standpoint for government to intervene in the healthcare market.  (There aren’t, but bear with me.)  That the government could make healthcare so much more superior doesn’t justify forcing people to buy insurance policies they don’t want, or forcing policies on them that mitigate more risk than they care to pay for.

Perhaps the claim that Obamacare won’t lead to mandating broccoli consumption would be more credible if liberals weren’t regularly trying to ban trans fats, salt, Happy Meals, soda, popcorn, and “milk drinks.”  For a perfect example of the left-wing tactic of abridging liberty while distracting the public with superfluous “good for you” justifications, see Mayor Michael Bloomberg’s 10-year crusade to turn Manhattan into a monastery.

When the Supreme Court overrules the Affordable Care Act’s individual mandate 5-4 next week, liberals are going to gripe about “judicial overreach” for decades, the way they’re still grumbling about Bush v. Gore.  They’ll roll their eyes at anyone who’s happy the Court overturned the law, and try to convince themselves that their legal argument is so much more sophisticated and forward-thinking than ours.

They need to be told why they’re wrong.

Previously published in modified form at Red Alert Politics

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Chaos from Unraveling Obamacare Is Entirely Dems’ Fault

June 13, 2012 By: Scott Spiegel Category: Health Care

Liberals conspired for two years to plant a web of technologically sophisticated, hard-to-defuse bombs across the country’s urban and suburban centers, explosives that sparked up here and there frightening people and were programmed to detonate four years later.

Conservative SWAT teams screamed and pleaded and begged the public not to let them do it, and tried to stop the impending carnage via arguments, campaigns, and ultimately elections.  Liberals just laughed at the chaos like the Joker.

Twenty-six states sought intervention from the Supreme Court, which may be on the verge of defusing the bombs, and if the Court doesn’t do it the next Republican Congress will.  The right inevitably will spread collateral damage as they storm into downtown areas cordoning off districts, deactivating trigger devices, resetting timers, and safely dismantling and clearing out every last bomb.

Naturally, the media are blaming conservatives for the mess they’re going to make clearing out the explosives liberals planted.

The bombs in question are, of course, the various provisions of Obamacare.  The disorder left by conservatives’ clearing them out constitutes “messy ripple effects” the mainstream media are warning about if conservatives get their way.

In one recent report expressing hope that some Obamacare terms will be retained, Associated Press reporter Ricardo Alonso-Zaldivar explained, “It sounds like a silver lining.  Even if the Supreme Court overturns President Barack Obama’s health care law, employers can keep offering popular coverage for the young adult children of their workers…  But here’s the catch: The parents’ taxes would go up.”

Translation: None of us in the MSM wants Obamacare repealed, but perhaps we’ll be able to keep parts of it intact, and through workaround solutions trick Americans into reinstating the rest in Obama’s second term.  What a shame, though, that parents with freeloading 26-year-olds will have to pay marginally higher rates for their children’s healthcare instead of soaking taxpayers for the difference—about $20 a month per child, according to an economist cited in the article.

Alonso-Zaldivar helpfully assures us that “The coverage for young adults up to age 26 on a parent’s health insurance is a popular provision that no one’s arguing about.”  No one in your administration-supporting, socialized medicine-loving AP reporters’ pool, that is.

He warns, “Better Medicare prescription benefits, currently saving hundreds of dollars for older people with high drug costs, would be suspended.”  Note how Alonso-Zaldivar writes as if seniors had been receiving such benefits for decades, and the extra cost would result in their being thrown in the street.  He acts as though government doesn’t constantly make changes to federal programs, adding or removing funding depending on changes in officeholders, and as though state agencies and private charities aren’t constantly stepping in to make up the difference so constituents barely notice changes in their benefits.  He seems to think Americans have never heard of budgets.

Alonso-Zaldivar adds, “Lacking legal authority, Medicare would have to take away the [“donut hole” coverage gap] discounts.  Drugmakers, now bearing the cost, could decide they want to keep offering discounts voluntarily.  But then they’d risk running afoul of other federal rules that bar medical providers from offering financial inducements to Medicare recipients.”

Lovely.  So we can’t repeal Obamacare, because the federal government prevents drugmakers from generously offering seniors discounts to help pay for their medications.  It’s got to be the government giving us treats or no one.

Last year I pointed out the absurdity of liberal legislators protesting conservative efforts to repeal Obamacare as unconstitutional, given that the legislation itself exists in a different universe from our Constitution.  Idiots like Texas Representative Sheila Jackson Lee characterized conservative repeal actions as the equivalent of trying to roll back a half-century of civil rights.  In fact, the bill had only been eked into law months before, and conservatives were hoping to stop it before any of its provisions kicked in.

Liberals are taking the same tack now, arguing that undoing Obamacare would be hopelessly messy and complicated (never mind what it would do to our health care system if allowed to stand), would take away popular and longstanding benefits, and should be accepted as a fait accompli.

That is, unfortunately, what happened with big-government welfare programs like Social Security, Medicare, and Medicaid.  Those programs became so entrenched in federal and state policy that today they’re nearly impossible to eliminate.  Not so Obamacare, which—unlike those programs—was not passed with bipartisan support, or even a healthy majority of one party, and is still raw enough in voters’ minds that they’re full of piss and vinegar about abolishing it.  The fate of Obamacare will be sealed by November 6, and possibly by the end of this month, and Democrats know the odds aren’t in their favor.

Alonso-Zaldivar gets one thing right: “A mixed verdict from the high court would be the most confusing outcome.  Some parts of the law would be struck down while others lurch ahead.”  Though Obamacare authors’ failure to include a severability clause suggests that if one part of the bill fails the entire thing would have to be struck down, I agree: It absolutely should be abolished in its entirety, down to its last period.

No matter how untidy reversal of Obamacare is, the effects can’t be more destructive to the country’s healthcare system than letting it stand.  And the deleterious effects of either course of action are entirely the fault of overzealous, power-grabbing, liberal Democrats.

Previously published in modified form at Red Alert Politics

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Time for Obama to Butt Out of Obamacare

April 04, 2012 By: Scott Spiegel Category: Health Care

Talk about chutzpah.  The same chief executive who refused to provide a speck of guidance to one branch of government in crafting his signature legislation is now threatening another branch of government not to overturn it.

Does President Obama believe in the separation of powers?  You wouldn’t know it from his intemperate comments Monday on the legal challenge to the Patient Protection and Affordable Care Act, which the Supreme Court is now deliberating.  Just days after skeptical justices had subjected administration lawyers and their opponents to a historic six hours of questioning, and just as the judges were retreating to contemplate the competing claims in private, Obama stood up in the Rose Garden and loudly warned the nine “unelected” rubes that they’d better get this one right.

Obama declared that overturning his health care law would be “unprecedented” and “extraordinary”—which is funny, because that’s what a lot of people have been saying about his health care law.

What with his haranguing of the justices over their Citizens United decision and his veiled threats over Obamacare, we haven’t had a president interfere this much with the Supreme Court since FDR.  (Apparently Obama’s intimidation tactics still aren’t strong enough for Representative James Clyburn, who wants the president to campaign against the Supreme Court this fall.)

Can anyone recall an instance of one faction of the Supreme Court instructing a sitting president which laws to veto?  How about a Congressional caucus telling the Chief Justice which cases to turn down?

One federal appeals court is so rattled by Obama’s posturing that it is requiring his Justice Department to submit a brief by Thursday noon outlining whether and when it believes the Supreme Court has the authority to overturn federal legislation.

In his address Monday, Obama blithely threw around the term “judicial activism,” suggesting that the Supreme Court justices would be guilty of practicing it if they overturned Obamacare.  But judicial activism doesn’t mean “making decisions the other side doesn’t like.”

The justices’ sworn oath is to uphold the Constitution.  Conservative complaints of judicial activism refer to cases in which justices override the Constitution while upholding or striking down laws that suit their political preferences.

Conservatives have focused obsessively on the constitutionality of the law since Day 1, in particular the propriety of requiring people to enter commercial contracts against their will by purchasing health insurance in the private market.

Judicial activists, including Obamacare supporters, ignore the constitutionality of laws, unless they are forced by their opponents to concoct phony, sophistic defenses invoking the Constitution, in which they typically claim that whatever it is they’re proposing—banning guns, preventing violence against women—is covered by the Interstate Commerce Clause.

When was the last time you heard a Republican legislator respond, when asked about the constitutionality of a law he had proposed, “Are you serious?” as former Speaker Nancy Pelosi did when queried about Obamacare?  How about a Republican announcing, as Illinois Democrat and former Congressman Phil Hare did at an Obamacare townhall meeting, “I don’t worry about the Constitution”?

(The left needs to get its story straight on whether the Supreme Court may ever consider the constitutionality of legislation.  Liberal Dahlia Lithwick, for example, claims that Congress can pass anything it wants, whether constitutional or not, because the Supreme Court will assess its constitutionality and strike it down if need be.  This was two years ago, back when blinkered Democrats didn’t think there was any chance the Supreme Court would hear the case against Obamacare, much less overrule it.  On the other hand, fellow Slate writer Jamal Greene recently argued that the Supreme Court should eschew its constitutional function and let Obamacare stand, because two branches of government have already weighed in.)

In case the “unprecedented” and “judicial activist” arguments weren’t convincing, Obama also crowed that the law had been passed by “a strong majority” of Congress—by which he meant a sputtering, cobbled-together Frankenstein’s monster of reluctant coalitions that had to be bribed, deceived, and coerced into compliance.  (The 2010 Republican midterm election landslide, though—that was nothing special!)

Meanwhile we’ve learned that the American public is solidly on the conservative justices’ side, with 72% endorsing the notion that the individual mandate is unconstitutional.  This includes over 50% of Republicans, Independents, Democrats, voters who oppose the law, and voters who support the law.  How’s that for “a strong majority”?

Obama’s chance to offer input on his namesake legislation has long since passed.  It’s time for him to accept the court’s—and the public’s—verdict on the disastrous legislation he recklessly set in motion.

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South Carolina Disenfranchises Camera-Shy Voters

January 18, 2012 By: Scott Spiegel Category: Elections: 2012

Ahead of its 2012 GOP presidential primary, South Carolina is under fire for having enacted a voter identification law that would require citizens to show poll workers a photo ID before voting.  (You know—sort of like having to pay a poll tax and prove your ancestors came over on the Mayflower.)

The law is intended to curb voter fraud, which is more prevalent in South Carolina and other southern states and states with relatively small populations.  Some states’ historically corrupt local governments and proximity to the Mexican border have yielded a disproportionate incidence of voter-impersonation fraud, including non-citizens voting, ex-felons voting, and dead people voting.  Small populations increase the influence that a handful of invalid votes can have on a precinct’s outcome.

Seven states besides South Carolina require a government-issued photo ID to vote: Texas, Georgia, Tennessee, Mississippi, Indiana, Wisconsin, and Kansas.  Seven additional states require a simple photo ID: Florida, Alabama, Louisiana, Michigan, South Dakota, Idaho, and Hawaii.  Three state legislatures passed photo ID laws in 2011 but were blocked by their governors’ vetoes.  Sixteen other states require non-photo identification.

So South Carolina isn’t exactly doing something new and different.

Naturally, the Obama camp has been riling up its base by accusing Republicans of trying to disenfranchise minorities.  Last month the Obama Justice Department blocked South Carolina’s attempts to implement its law, claiming that the statute violates the Voting Rights Act of 1965—the first time the Department has interfered with a state’s voter ID requirements since 1994.  The Department is also taking its sweet time approving Texas’s recently passed voter ID law.

On Monday, Attorney General and chief racial instigator Eric Holder ginned up the controversy again at a Martin Luther King rally in Columbia, South Carolina.

Democrats use this tired old tactic time and again: Take a perfectly neutral, fair-minded policy whose originators don’t consider or mention race in the slightest, then twist it to make it look as though people who support it are bigots.  College admissions committees should be color-blind?  Racist.  Black firefighters should pass the same test as white and Hispanic firefighters?  Racist.  Voters should produce photo IDs before they vote?  Racist.

Opponents of the law argue that, since getting a photo ID costs money, the voter ID requirement constitutes an illegal poll tax.  Never mind that it’s free to get a state-issued ID in South Carolina, and that Governor Nikki Haley has supplied taxpayer-funded, free carpools to take people to pick up their free IDs at the DMV.

The Supreme Court concluded, in its 2008 rejection of a challenge to Indiana’s voter ID law, that requiring voters to obtain an ID is not an unseemly burden.  Tellingly, the plaintiff was unable to produce a single witness who couldn’t meet the voter ID requirement.  Even liberal stalwart John Paul Stevens joined the 6-3 majority and penned its consensus decision.  (In his dissent, Justice Souter wrote that the state must provide evidence of voter fraud before it can pass a voter ID law, which is like saying that a jurisdiction must provide evidence of stolen credit cards before it can pass a law against identity theft.)

Another nonsensical argument is that South Carolina is using a states’ rights position to defend its law, which it used to defend slavery and racial segregation; therefore, voter ID laws are racist.  Yet South Carolina has been battling the federal government recently over other states’ rights issues, such as ObamaCare and the NLRB’s lawsuit against Boeing for moving jobs from Washington to South Carolina.  The Palmetto State is currently ground zero for states’ rights defenses against federal overreach, and none of it has a whit to do with race.

The media has also been linking South Carolina’s efforts with all sorts of other “racially tinged” proposals emanating from the campaign trail, such as Newt Gingrich’s suggestion that children help keep their schools clean and Rick Santorum’s comment about not wanting minorities to be dependent on government.  Tied together with all of this “coded language” and “racial politicking,” the media is invoking a “climate” of intolerance among GOP nominees and prepping for a revival of the “Republicans Hate Obama Because He’s Black” campaign theme for the fall.

What all of the opponents of the statute have failed to answer is: Why will the new voter ID law specifically disenfranchise blacks?  Are African Americans unable to get driver’s licenses?  Do they not have access to hundreds of local state facilities where an employee will take their picture, put it on a card, and give them an ID?  If African Americans can register and get out to vote every two or four years, why can’t they go pick up a one-time ID?  Do Democrats not consider blacks capable of taking that step?

In response to these ridiculous criticisms, state legislatures have bent over backwards to make it easy for voters to get IDs.  In addition to Nikki Haley’s Reliable Chauffer Service, the Indiana law allows voters without IDs at the voting booth to cast provisional ballots, so long as they bring their ID cards back or get new ones in the next 10 days, or else sign a statement saying they can’t afford one.  Are Democrats insinuating that blacks can’t fill out forms?

Voting is a right—but it doesn’t take place in a vacuum, and states may use constitutional means to enforce fair, non-fraudulent voting activity on their turf.

No one’s saying we need voter ID laws in every state, or that such laws can’t vary in strictness.  But on this states’ rights issue, South Carolina has determined it needs this particular law to ensure the integrity of its elections.

We need photo IDs to buy alcohol, drive a car, fly on a plane, get a library card, rent a movie, cash a check, enter federal buildings, and collect welfare.  Many of those reviews involve verifying age, residency, credit history, or citizenship; but presenting a voter ID confirms something more fundamental—identity.  Why are Democrats so scared of voters’ having to be who they say they are when they vote?

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