Scott Spiegel

I 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.

• Rush claimed that those who call same-sex marriage a civil right dismiss all opponents as bigots.

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.

 Print This Post

Related articles

• Prop 8 Lawyer Makes Surprise Remark (huffingtonpost.com)
• Prop 8′s Fate Now In SCOTUS’ Hands, Seems Certain To Go Down (lezgetreal.com)
• Supreme Court Begins Decisions On Same-Sex Marriage (nyulocal.com)
• Supreme Court heard arguments on Prop 8 today (gravityswings.wordpress.com)
• 5 possible outcomes of the Supreme Court Prop. 8 case (kens5.com)

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.  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



 Print This Post

Related articles

• John Roberts’s art of war (economist.com)
• The Commerce Clause Discussion and the Doctrine of Stare Decisis (lsolum.typepad.com)
• Most of the Justices Reject the Commerce Clause Defense of the Mandate (reason.com)
• More Evidence That Scalia’s Dissent Was Originally Written to Be the Opinion of the Court… (delong.typepad.com)
• The Supreme Court’s New Limits On The Commerce Power (outsidethebeltway.com)

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 flag@whitehouse.gov.”  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.

 Print This Post

Related articles

• Dear Dems: Get Angry if Obamacare Goes Down (newser.com)
• Liberal Second-Guessing Won’t Make ObamaCare Constitutional (commentarymagazine.com)
• No pass for Nancy Pelosi (bostonherald.com)
• Three Reasons to End Obamacare Before It Begins! (txwclp.org)
• ObamaCare’s Secret History (libertycrier.com)

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



 Print This Post

Related articles

• The Broccoli Argument Isn’t About Broccoli (volokh.com)
• Obamacare fight ‘soon to be over’? LOL! (wnd.com)
• The individual mandate of Obamacare: Constitutional or Unconstitutional? (anniesanalysis.wordpress.com)
• The Times Serves Broccoli But No Dessert (justoneminute.typepad.com)
• A Back Door to the Public Option (wallstreetpit.com)

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



 Print This Post

Related articles

• Obamacare II Coming to the USA (independentsentinel.com)
• Top 5 Things the Administration Forgot to Tell Women About Obamacare (heritage.org)
• The Lousiest ObamaCare Defense You’ll Read Today (reason.com)
• Democrats Join Republicans to Smother Obama’s Medical Device Tax (jdjournal.com)
• Harvard Economist: Obamacare Is Insane. Medicare Should be Phased Out (subzinfo.wordpress.com)

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.



 Print This Post

Related articles

• On health care law, who’s the judicial activist? (politico.com)
• Arrogance, Ignorance or Worse As Obama Talks About Supreme Court (dewgeneral.wordpress.com)
• Federal Court Slams Justice Department Over Obama Comments (jonathanturley.org)
• Obama’s Bogus Complaint About Health Care and Judicial Activism (reason.com)
• Obama Questions the Supreme Court (davidscommonplacebook.wordpress.com)

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?



 Print This Post

Related articles

• Dead Voters in South Carolina? Maybe. Maybe Not. (loyalopposition.blogs.nytimes.com)
• Could South Carolina voter ID law cause black voter disenfranchisement? (thegrio.com)
• Voter ID law issues highlighted in S.C. (cbsnews.com)
• Hundreds mark MLK holiday outside SC capitol (newsok.com)
• South Carolina’s voter ID laws could disenfranchise blacks (thegrio.com)

Over the past few weeks, a controversy has been brewing between conservative commentators Ann Coulter and Mark Levin over the relative fitness of frontrunners Mitt Romney and Newt Gingrich for the 2012 GOP presidential nomination.

In her columns and TV appearances, Coulter has been stumping for Romney and stomping all over Gingrich.  On his syndicated radio talk show, Levin has been denouncing Romney as a non-conservative and bolstering Gingrich as a flawed but superior alternative.

The tiff echoes Coulter’s endorsement earlier this year of Chris Christie, before he insisted he wasn’t running, and Levin’s dismissal of Christie as a RINO.  In both cases, Levin has expressed contempt for the “Republican establishment” trying to decide the GOP nominee, though it would be hard to characterize Coulter as part of any establishment.

Coulter’s endorsement of Romney is a bit puzzling, when one recalls her animosity toward John McCain and her tongue-in-cheek threat to campaign for Hillary Clinton if McCain got the 2008 Republican presidential nomination.  Coulter argued then that Republicans do not win elections when they run moderate candidates, because such candidates appear ideologically weak against genuine leftists such as Obama.  On the contrary, because this is a center-right country, Republicans win when they run unapologetic conservatives such as Ronald Reagan, who offer a contrasting alternative to the Democratic candidate.

Coulter has reconciled this apparent contradiction by arguing that McCain was consistently moderate or center-left.  In contrast, Romney has flip-flopped and been inconsistent, but has switched from liberal to conservative positions.

Levin claims that Gingrich has a stronger track record as a conservative than Romney, including the former’s efforts to get the first Republican majority reelected in the House in 68 years and his implementation of welfare reform.  Levin warns that we can’t trust Romney to go to bat for conservative principles, given his spotty past.

I sympathize greatly with Levin’s frustration that we can’t seem to find a strong, consistent, articulate conservative this election cycle who’s willing to run, doesn’t have heavy personal or political baggage, and can maintain a double-digit showing in the polls.  I worry whether anyone we nominate—Romney, Gingrich, or someone else—will consistently stand up for conservative principles once president.

I’m no Romney fan, and I empathize with those who claim his major virtue is his electability.  However, the more I think about Coulter’s argument—or rather, my take on it—the more I think she’s right, but with one major caveat.

As Coulter explained to Sean Hannity recently, the most important thing we need our next president to do—among the many Democratic messes that have to be cleaned up—is to repeal ObamaCare.  The GOP can’t get rid of ObamaCare without a Republican president, unless they have a supermajority in the Senate, a majority in the House, and no Republican defectors.  None of this is guaranteed.  A Senate supermajority will be especially difficult to achieve, perhaps even more so than putting a Republican in the White House.

As Coulter noted, ObamaCare must be repealed as soon as the 113^th Congress and the 45^th president are sworn in.  One of the many compromises/blunders Congressional Democrats made in order to ram ObamaCare through was pacifying voters with a phony claim that the bill would save money over the next 10 years; they did so by having ObamaCare taxes kick in starting in 2010 but most benefits not begin until 2014.  This gave the GOP a leg up in getting the bill repealed—but it gave them only so much time.  Coulter predicts that once people start collecting their “treats” and federal insurance starts crowding out the private market, the bill will never be repealed.

The Supreme Court is scheduled to hear arguments for and against the ObamaCare individual mandate in March; however, it is not certain that the court will find the provision unconstitutional, or that Congressional Democrats won’t find some way around the ruling.

Thus, if the most important thing for the next president to do is to repeal ObamaCare, then I would paraphrase William F. Buckley, Jr. and recommend that we vote for the most electable Republican who will repeal ObamaCare.  Assuming that all seven contenders would repeal it—and all have credibly pledged to do so—and that Romney is the most electable candidate, this suggests we go with Romney.  Other issues are important—but not as important as repealing ObamaCare.

The situation recalls moderate Republican Scott Brown’s battle against Democrat Martha Coakley for the late Senator Ted Kennedy’s seat in November 2009.  Brown’s win in liberal Massachusetts, and his swearing in as the 41^st GOP Senator—the one needed to block Democrats’ supermajority—was seen as a referendum on ObamaCare, because Brown had sworn to vote against the House’s version of the bill.  (Democrats cheated by using budget reconciliation to meld the Senate and House bills, but that’s another story.)

Brown ran on a platform of promising to vote against ObamaCare.  As I wrote at the time, Senator Brown could propose “a bill using Medicare funds to subsidize partial-birth abortions for illegal Islamist immigrant tax cheats with Al-Qaeda ties, and he would still be Republicans’ hero for having voted down the health care bill.”

Similarly, Romney could be squishy on all kinds of issues, and conservatives would still be grateful—as long as he repeals ObamaCare.

But here’s the caveat: Is Romney in fact the most electable Republican?  Will RomneyCare, and the fact that Obama cited it as a model for ObamaCare, do him in?  Will Romney be more electable than Gingrich, who formerly supported the individual mandate on a national level?

For those who find some issue other than ObamaCare more important, or are willing to risk not having it repealed for the satisfaction of running a preferable but less electable candidate, my arguments won’t be persuasive.

But for those who think that the #1 priority of the next president should be undoing ObamaCare, Romney’s electability is the pressing unknown that must be discovered.



 Print This Post

Related articles

• Meet Romney’s New Surrogate: Ann Coulter (themoderatevoice.com)
• Mitt Romney desperately embraces Ann Coulter (thanks, Newt Gingrich!) (dailykos.com)
• Sean Hannity Confronts Ann Coulter With Her Anti-Romney Comments From Last Year (mediaite.com)
• Ann Coulter: Tea Party Ignores Romney Because They’re Looking At Who Is ‘Calling [Obama] A Kenyan’ (mediaite.com)
• Team Romney mount an expensive but effective attack ad week against Newt (worldviewtonight.wordpress.com)

Image by Scott Spiegel via Flickr

President Obama announced last week that his Attorney General Eric Holder would no longer be defending the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which Congress passed in 1996.

His declaration may have had something to do with the fact that Ninth Circuit Court Justice Stephen Reinhardt and federal trial judge Joseph Tauro of Massachusetts ruled across three separate cases in 2009 and 2010 that DOMA was unconstitutional.

Obama’s Justice Department will be submitting its official response next week to two fresh lawsuits against DOMA filed last year in New York and Connecticut.  The Department is not expected to argue in favor of the law’s constitutionality.

Constitution-revering conservatives have responded to Obama’s announcement by howling that there is no precedent for his declaration in all of American history, that Obama is overturning DOMA just because he doesn’t like it, and that his actions may be grounds for impeachment.

Jonah Goldberg of National Review claimed Obama has “thrown in the towel on the Constitution.”  On her radio show, Monica Crowley stooped to the level of Wisconsin pro-union protestors by labeling the president “Oba-Mubarak.”

Newt Gingrich declared that Obama’s actions could lead to a constitutional crisis.  He offered the hypothetical counterexample of President Sarah Palin declaring that she doesn’t like Roe v. Wade, thinks it’s unconstitutional, and will no longer allow the executive to enforce the right to an abortion.

There’s just one little difference between the Obama and Gingrich scenarios: no court has ever ruled Roe v. Wade unconstitutional.

The Supreme Court, the highest court in the land, had the last word on that matter in 1973, and no lower court or the Supreme Court has declared the unconstitutionality of the fundamental right to an abortion since then.  State courts have chipped away at the edges of the ruling and allowed restrictions on abortion, some of which the Supreme Court has upheld, but no court has ever reversed the Supreme Court’s ruling on the basic right to an abortion.  In fact, because the Supreme Court has already ruled on the matter, only that court would be able to reverse its 1973 ruling.

In the Gingrich scenario, Palin would indeed be imposing her preference on the nation illegally.

In the Obama scenario, in contrast, his Justice Department would be upholding the interpretation of the law offered by two members of the judiciary in three different court cases.

Obama hasn’t even said his Justice Department isn’t going to enforce the law—only that it will not be arguing in court that the law is constitutional.  Which, you may remember, is what two of the highest courts in the land to rule on the constitutionality of DOMA have found in three separate cases.

Even after Obama’s announcement, courts will still be able to rule on DOMA, regardless of the arguments Eric Holder declines to proffer in support of it.  Outside parties, including Congressmen who support the law, will still be able to file friend-of-the-court briefs outlining the exact same by-now-familiar arguments the Justice Department will no longer be citing.

Other conservatives who are upset with Obama’s actions have argued that Florida District Court Justice Roger Vinson recently found ObamaCare unconstitutional, yet Obama is still implementing that law.

Well, yes—clearly Obama is ideologically disposed toward overturning DOMA and not Roe v. Wade or ObamaCare.  But that doesn’t mean he does not have the prerogative to disavow the identified-as-unconstitutional DOMA, or the obligation to uphold the never-identified-as-unconstitutional Roe v. Wade.

As for ObamaCare, two justices had already (ludicrously) upheld the constitutionality of ObamaCare before Virginia District Justice Henry Hudson ruled the individual mandate component of the bill unconstitutional last December, and before Justice Vinson ruled the entire bill unconstitutional in January.  So while one would hope for Obama to take Hudson and Vinson’s cues once their rulings came down, one wouldn’t hold one’s breath.  A third justice has since found ObamaCare constitutional, which sadly gives liberals more cover for continuing to defend ObamaCare until the Supreme Court rules on it.

In the same interview in which he claimed Obama couldn’t decline to enforce DOMA, Gingrich declared that Justice Vinson’s ruling represented “solid grounds for the House to cut off all funding for implementation.”  Apparently the link between Gingrich’s stances on DOMA and ObamaCare was that both criticized supposedly unconstitutional actions of Obama’s.  Yet evidently Justice Reinhardt and Tauro’s rulings on the unconstitutionality of DOMA didn’t figure into Gingrich’s equation.

Other conservatives have questioned the timing of Obama’s announcement, suggesting that it was made to distract voters from the economy or set a trap for Republicans—as though this determined the propriety of Obama’s non-enforcement of a law.  Gingrich noted that Obama had campaigned for president in opposition to gay marriage and promised to uphold DOMA, and is therefore breaking a campaign pledge—again, as though this has anything to do with the legality of Obama’s decision not to defend the law.

Without trying to read Obama’s mind, I can say only that his motives for no longer defending DOMA have absolutely nothing to do with the constitutional appropriateness of his decision.

Here are some hypothetical actions that would be unconstitutional if Obama actually took them: Not enforcing DOMA after the Supreme Court ruled it constitutional.  Enforcing DOMA after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after Congress cut off funding for implementing it.

But deciding not to defend an argument behind one section of a law while still enforcing it, when two of the highest courts in the land have deemed the law unconstitutional in three cases—sorry, but that is not unconstitutional.



 Print This Post

Related articles

• Video: Gingrich Says “The Rule of Obama” on Doma and Ocare Is “Very Dangerous” (healthcarebs.com)
• “Newt Gingrich floats impeachment over Obama’s DOMA decision” and related posts (dailykos.com)
• “Obama; A One Man Supreme Court” and related posts (onebigdog.net)
• Newt Gingrich Suggests Obama’s Refusal To Enforce DOMA May Be Impeachable Offense (mediaite.com)
• President now deciding constitutionality of laws (bellalu0.wordpress.com)

President Obama called arguments against Supreme Court Justice nominee Elena Kagan’s confirmation “pretty thin gruel.”

That’s funny—I call no judicial experience and scant, conflicting legal theorizing in print “a short stack of hotcakes.”

We know little of Kagan’s judicial philosophy—and may know even less after her hearings this week if she has any say in the matter—but what little we know isn’t to like.  In fact, it’s enough to hold our noses at.

Kagan wrote in her master’s thesis at Oxford that “[J]udges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.  Such activity is not necessarily wrong or invalid.”  Years later, when challenged on these remarks, she brushed them aside, claiming she was just a “dumb” 23-year-old at the time.  (Question: Was Obama just a dumb 45-year-old when he was still attending Reverend Jeremiah Wright’s racist sermons at Trinity United Church of Christ?)

Kagan once paraphrased her boss Supreme Court Justice Thurgood Marshall’s view that interpretation of the Constitution “demanded that the courts show a special solicitude for the despised and disadvantaged.”  Great!  Does that mean she’s on the side of corporations (the despised) and inner-city residents who want to protect themselves with handguns from break-ins (the disadvantaged)?

That’s probably a no on corporations, since as Obama’s solicitor general Kagan argued the losing position in the Citizens United v. Federal Elections Commission (2010) case.  Kagan argued that corporate-sponsored pamphlets and posters could be banned before elections, because they violate campaign finance regulations.  She also claimed with a straight face that it was OK to ban books containing endorsements of candidates for public office before elections, because the FEC won’t actually enforce the ban.

Some have argued that the stances Kagan has taken as solicitor general reveal nothing about her personal views, because she is required by her job to argue the government’s position.  Yes, but was she required to accept jobs clerking for Marshall, strategizing for President Bill Clinton, and shilling for President Barack Obama?  Is it unfair to intuit that she’s a bit more comfortable implementing the visions of these liberal lions than she would be, say, clerking for Clarence Thomas?

When Obama nominated Kagan for the post of solicitor general, he boasted that she had chosen Citizens United as the first case she wanted to argue if confirmed.  So I think it’s safe to say that many of Obama’s predilections are near and dear to her heart.

And that’s probably a no on guns, since as Marshall’s assistant decades ago Kagan urged him not to hear a Washington, D.C. resident’s appeal of his conviction for owning an unlicensed handgun.  When the defendant argued that the D.C. gun ban violated his Second Amendment rights—a decision, by the way, upheld by the Supreme Court in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010)—Kagan snippily replied, “I’m not sympathetic.”

Weak-kneed conservatives keep telling us we should be quiet and support Kagan’s nomination (which is exactly what they said about Sonia Sotomayor’s nomination last summer), because she’s only replacing another departing liberal, Justice John Paul Stevens (which is exactly what they said about Justice David Souter last summer).  OK, but since when did conservatives’ Supreme Court standard stop aiming for 9 defenders of the Constitution and start settling for 4.5?

Former Wall Street Journal assistant managing editor Tunku Varadarajan gushed that in the opening statement of Kagan’s hearings she spoke “with a face that was tilted at an appropriately deferential angle, and with a voice that betrayed—to my delight—the vowels of Manhattan’s Upper West Side.  (She sounded, let us say, like a wise Ashkenazi woman.)”  That and five originalists will get you a constitutional decision!  To Kagan’s credit, at least bloggers haven’t unearthed speeches in which she announced that better rulings would presumably be made by a wise Ashkenazi woman than a Gentile man.

The RINO herd keeps telling us we shouldn’t oppose Kagan, because then venerated liberals will paint us as stubborn and argumentative.  These are the same liberals, you will remember, who last year called town hall protestors racist, two-year-old teabaggers for opposing ObamaCare.

As gratifying as D.C. v. Heller, Citizens United, and McDonald v. Chicago were, here is why conservatives must oppose Kagan’s confirmation: because we can’t afford any more such 5-4 nail-biters, to say nothing of epic disasters we have surrendered like Rasul v. Bush (2004), Kelo v. City of New London (2005), Hamdan v. Rumsfeld (2006), and Massachusetts v. EPA (2007).



 Print This Post

Related articles by Zemanta

• A few ‘vapid’ questions for Elena Kagan (washingtonpost.com)
• Kagan Argued for Government ‘Redistribution of Speech’ (cnsnews.com)
• Possible pitfalls for Kagan with her own words? (apnews.com)
• Filling the Stevens Seat (reason.com)
• Kagan Declines To Say Gov’t Has No Power to Tell Americans What To Eat (youtube.com)