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Showing posts with label U.S. Supreme Court. Show all posts
Showing posts with label U.S. Supreme Court. Show all posts
Monday, October 1, 2012
Supreme Courtin' It
Click Here To Read Article/Comments at CommentaramaPolitics
Monday, July 2, 2012
Some Final Thoughts On Obamacare
● The Supreme Court Fails: Legally speaking, the ObamaCare decision is horrible. Some conservatives have latched onto the fact Roberts made a lot of great points about how the Commerce Clause and the Necessary and Proper Clause don’t extend nearly as far as the statist would have you believe. Sure, that’s nice. BUT then he turns right around and opens an unlimited window for Congress to use its tax powers to do anything! There may eventually be limits on this power, but as it stands right now, this is one of the five or six biggest power grabs in Constitutional history.
It is also troubling that this decision is based on verbal semantics: punishing someone for non-compliance is not the same thing as forcing someone to comply. Really?! That’s nonsense! That’s a distinction without a difference -- a verbal game -- and it’s disturbing that the Supreme Court would accept this double-speak as reasoning. This will lead to a whole new world of control once Congress realizes it can just “tax” you into compliance without ever triggering the limits on its power to “punish.” That’s troubling.
● The Conservative Opportunity: Politically, however, this is a very different story. Politically, I think this decision is a Godsend for two reasons.
First, this decision will destroy the Democrats, and not just Obama. Human nature tells us that people forgive and forget misbehavior if it stops before the negative consequences kick in. So long as people assumed the Supreme Court would rein in ObamaCare, the public was very likely to forgive the Democrats and consider this a non-issues. Now that assumption is gone, and this decision revives the possibility of negative consequences. That will wake up the public and end its forgiving mood. Indeed, I would suspect this will endanger another 3-5 Democratic Senators in flyover country and could ultimately give us another 2-3 seats. And while I don’t think that will give us enough seats in the Senate to overcome a filibuster, it will be the difference between a majority (52-53 seats) and a solid majority (54-57 seats), which should be all we need under the new scorched-earth Senate.
Secondly, I think this ruling saved us from a disaster. If the Supreme Court had struck down the mandate, but left the rest, I have no doubt the Republicans would have declared victory and just moved on. That would have left a plethora of horrible things ensconced in law, including trillions in taxes, dirty deals with drug companies, anti-competitive requirements on hospitals and doctors, new entitlements, the unfunded expansion of Medicare, the creation of these insurance exchanges, etc. In effect, the least damaging part of the law would have been struck down and the other 99% of the harm would have remained. Now the Republicans will need to address the bill itself, and the pressure will be to repeal and replace the whole thing. That means they will actually need to fix much of this. That is the real reason this decision may ultimately prove to be a saving moment for the Republic, because it means the Republicans can’t ignore the real problems.
● Repealing Stupidity: Repealing ObamaCare should be simple. Passing it by reconciliation means that by definition it can be repealed by reconciliation. And reconciliation only needs 51 votes. Naturally, the Democrats (and some weak Republicans) are whining that somehow the bill can’t be repealed by reconciliation, but that’s nonsense.
● Building A New Crisis: There is an economic crisis built into ObamaCare and it will be interesting to see what happens. The law expands Medicaid to the point that it will shatter state budgets. But states don’t need to sign up for this. Indeed, the Supreme Court ruled that the states can refuse to expand Medicaid as the bill requires, and the Federal government cannot withdraw Medicaid funding if the state so chooses -- it can only withhold the additional funds intended to cover that expansion.
But just because states don’t need to sign up, doesn’t mean they are smart enough to refuse. A few Republican governors have said they won’t sign up, but most see this more as an opportunity to negotiate a lot of freedom from the requirements of Medicaid. It will be interesting to see what they obtain. The problem, however, lies with the Democratic states. . . as always. These idiots are rushing to sign up as a show of support. This will result in a dramatic increase of their Medicaid costs, which will bust their budgets. At first, the federal government funds this expansion, but within a couple years, that subsidy vanishes. That’s when states like California and New York will find themselves in budget hell (as if they weren’t already). Without federal money, I don’t see this as sustainable, but how will they cut off so many people once they sign them up? Watch out if you live in a liberal state which accepts this expansion!
● Death to the Middle Class: Conservative economist and Senior Economics Writer for the Wall Street Journal, Stephen Moore, just made an interesting statement. He claims that 75% of the cost of ObamaCare will fall on the middle class -- people making less than $125,000 per year. That’s not at all surprising because that’s who always pays for these programs. Still, this is unwelcome news for a middle class which has been hit with falling incomes, falling asset values, falling home prices, massive inflation, an ever-higher tax burden, and fewer job prospects. At some point, this rubber band will break.
Conclusion
To sum up my thoughts, this bill is a disaster. It will crush the stupid states, it will crush the middle class. It will damage our healthcare system a lot. The Supreme Court’s ruling has damaged our Constitution. BUT this will wake up the public and will help to finish off the Democrats. It will also force the Republicans to act. In the end, this decision may prove to be the moment which spurred the Republicans to actually fix the healthcare crisis, and thereby save the country. Let’s hope.
Finally, by popular demand, here are some links for you to consider:
First, here’s what’s wrong with our healthcare system: Out of Control Costs, Out-of-Control Costs II, Access, and Quality Control Problems.Have a happy and free Fourth everyone!
Secondly, we have a report card on why ObamaCare fails to address these problems: FailureCare.
Lastly, we have CommentaramaCare, a proposal on how the system should be fixed: Com-Care Tort Reform, Com-Care Medical Reforms, Com-Care Coverage Reform, and Com-Care Summarized and Priced.
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Friday, June 29, 2012
It’s A Tax! It’s A Mandate! It’s Supersocialism!
Using the same kind of crazed logic, but reaching the opposite conclusion, some time back Barack Obama appeared on ABC TV to discuss the mandate with Democratic flack George Stephanopoulos. Thinking that a mandate to purchase an item so the government can regulate it under the interstate commerce clause is perfectly constitutional, Obama doubled down on his contention that he would not raise taxes one penny for 95% of the American people.
Even a Democratic talking head can spot a skunk when he sees one. And Stephanopoulos was bolder than most of his fellow Obama-worshipers. Stephanopoulos started the interview by saying that Americans would be required to buy health insurance, or be fined up to $900. “How is that not a tax?” asked George. Completely dodging the actual question, Obama replied: “A responsibility to get health insurance is not a tax increase.” That, by the way, is what “begging the question” really means.
George then made the mistake of reading the definition of “tax” from a Webster’s dictionary. For Obama, that meant that Stephanopoulos wasn’t on solid ground. “The fact you looked it up, the definition of tax increase, indicates that you’re stretching a little bit right now.” But Georgie Boy didn’t read the definition of “tax increase,” he read the definition of “tax,” no stretch at all.
The interview went on, and Obama continued to deny the obvious. But the thing I see as ironic is that Obama found it worse to suggest that Obamacare is a tax than to suggest it is a landmark unconstitutional mandate. His babbling managed to confuse at least one Supreme Court Justice. The Chief Justice, no less. Instead of simply and obviously finding the mandate clearly unconstitutional, Roberts decided to redefine the mandate as a tax. If that was somehow supposed to be a slapdown to Obama, it failed. As if that will make much difference in the economic morass either would produce.
On the upside, I am pleased that conservatives, along with a few moderates and independents have so strongly expressed their disdain for the majority opinion. I think it’s highly probable that there will be a new President and a new Senate come next January. And along with that will come the dismantling of Obamacare. And that’s a good thing.
But there’s something far more troubling here. Reversing Obamacare is imperative. But given the long train of history, it could rear its ugly head again in the future. Until some future Supreme Court overturns the current decision, we will always be under the threat of a government that reads Roberts’s decision as meaning that the power of the federal government is essentially unlimited.
Obama is fond of using the word “unprecedented” for pretty much anything he disagrees with. A constitutional law professor shouldn’t be throwing that word around so loosely. Thursday’s action by the Supreme Court is truly unprecedented. Whether it’s a tax, or a mandate, or as I believe both, this is an all-new precedent that confirms the Progressive belief that the Constitution is infinitely malleable. Shame on Chief Justice Roberts.
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Thursday, June 28, 2012
Double-Header in D.C.
Consider this a combination comment, rant, scream of triumph, open thread to discuss the two events. It is likely many of you will already have commented on the morning post, but feel free to repeat, expand, or revise. The results of these two conflagrations will have no simple, single outcome. Now that the excitement of the morning has passed, I'd like to hear everybody's views on what the decisions mean, where we go from here, and how the politicians, particularly the Republican candidates, will or should react.
Regardless of how either of the two watershed matters comes out, there will be repercussions and a lot of finger-pointing in D.C. Let's hear your predictions (and I promise I'll put my two cents in as well). It will be fun to keep track of the comments to see how they actually play out in the political arena in November.
Enjoy!
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Monday, June 25, 2012
Obama’s “Week From Hell” Coming Up
Everybody’s had one of those weeks, where everything goes wrong. Obama is about to experience a big one! Indeed, this week will likely be the week which will define his Presidency as a total failure in the history book. And it starts with ObamaCare.Obama bet his entire Presidency on ObamaCare, and that’s going down in flames this week. Yep. Sometime this week, the Supreme Court will finally issue its decision. We’ve discussed that a lot, including the likely outcomes (LINK), but any way you slice it, this will end poorly for Obama. At the very least, the individual mandate will be struck down. But more likely, the Supreme Court will strike down the entire law. Either result, however, will be seen by the public as a complete reversal of ObamaCare, and with it, a complete undoing of his entire term in office.
My biggest concern here is if only the mandate gets struck down. That could kill the momentum for a repeal of the entire bill, which is what is truly needed. Indeed, the individual mandate is the least harmful of the provisions. The rest of the bill raises taxes, hands out favors, reshapes how hospitals function, limits the way doctors can arrange their businesses, slashes Medicare, subsidizes some people’s healthcare, imposes requirements on insurers, and forces states to create these massive insurance exchanges which will never go away. That is the real heart of ObamaCare and that’s what needs to be eliminated. On the plus side, once people think ObamaCare is gone, it will be hard to stop the Republicans from repealing the rest. On the downside, once the pressure is released, Washington tends to return to rest and let things stay as they are. Let’s hope the Supreme Court does the right thing and kills the whole bill.
But ObamaCare is just the beginning. This week the Supreme Court will also uphold Arizona’s law to let its police enforce the nation’s immigration laws. If immigration truly is THE issue for Hispanics, and this bill is as bad as the left claims, then Hispanic won’t be too happy that Obama proved impotent on this issue.
More importantly, as more and more states pass these laws, the ability of the Democrats to ignore the illegal immigration problem by sabotaging ICE efforts in Washington will vanish. Instead, the states will start taking care of these issues, with a likely first round resulting in a demographic shift as illegals flee to welcoming states like California. . . which can’t afford them.
On Thursday, Obama’s lawyer, Attorney General Eric Holder, will find himself held in contempt of Congress for lying and withholding documents from Congress related to his “Fast and Furious” program which resulted in thousands of weapons being given to drug cartels in Mexico. Interestingly, even the left is mocking Obama’s claim that Holder has the right to withhold the requested documents under Executive Privilege. Apparently, young Barack Obama once said Bush’s identical claims were illegal.
On Friday, Obama’s latest effort at a stimulus bill, a $109 billion highway bill, will probably fail in the House. So much for spreading around a little bribe money before the election.
Finally, student loan rates will double unless action is taken by June 30, and the House Republicans don’t seem all that interested in stopping this. This will upset yet another key Obama demographic, students. This one might pass, but we’ll see. But it won’t help the mood on college campuses that Obama let this happen.
That’s a big week for Obama and from the looks of it, it’s all going to go wrong. :)
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Friday, June 1, 2012
Isn’t That Special?
Pictured is President Obama pulling the string at the back of Steven’s neck which triggers his toy voicebox that says “I love abortion in every form.” Roe v. Wade was in itself a horror of a decision, based on social engineering, “pro-choice politics” and judicial activism. In other words, pretty much everything except law, precedent and the Constitution. But it’s the murderous progeny of Roe that have resulted in helpless living beings being slaughtered wholesale in the name of “a woman’s choice.”
Standing alone, Roe is bad science and worse law, but the cases which grew out of it are much worse, and Medal recipient John Paul Stevens played a major role in giving the assembly-line murders constitutional cover. The freedom, indeed the God-given right of life, was not of any concern to Stevens and four of his Supreme Court colleagues.
Obama attempted to humanize this inhuman jurist with little tidbits like “At his vacation home in Florida, he was John from Arlington, better known for his world-class bridge game than his world-changing judicial opinions.” Cute, huh? Good old John. He was just doing his job. No evil intent whatsoever. Just a friendly old guy who puts his imprimatur on death warrants for millions of nearly-born babies.
The award itself contains the words: “ . . . his commitment to the noble vision of our nation’s founders.” I’m not sure which Founder’s ghostly screams I’m hearing. Could be Jefferson. Could be Washington. Could be Madison. But I’m hearing “that’s a goddam lie, we never envisioned the vicious and violent death of babies ready to emerge from the womb.”
Good old Justice John wrote the majority opinion in the 2000 case which said that a woman’s choice includes choosing a doctor who will hasten the birthing cycle so that the live baby can emerge, feet first, ready to have its brain entered by surgical scissors and scalpels in a barbarous procedure known as “dilation and extraction,” aka partial-birth abortion. From the time he was a back bench Illinois legislator, Barack Obama has agreed with that position.
Stevens opined that the anti-partial-birth abortion law at issue in Stenberg v. Carhart was indistinguishable from the “legal” procedure “dilation and evacuation” an equally barbarous form of murdering a baby in the womb at a slightly earlier stage of the healthy pregnancy. Therefore, Stevens said, it would be impossible for a good doctor to know whether he was performing a lawful procedure or a medical murder. God forbid we should put MD assassins at risk, and partial-birth abortion was approved by the high court. The calmness and ordinariness with which the opinion describes the various forms of baby murder that must be allowed is reminiscent of Adolf Eichmann calmly describing the methods he used to kill Jews at the extermination camps.
Stevens cited all the various and despicable forms of baby-murder which were allowable in order to show that partial-birth abortion was just another form of medical treatment. Stevens concluded that the dismemberment of a living human being, partially removed by the doctor from the mother’s womb in order to kill it, is “a question of the liberty protected by the 14th Amendment as recognized in the 1973 case of Roe v. Wade.”
Finally, in 2007, Stevens found himself joining in a baby-murder opinion again, this time the minority opinion. He joined Justice Ruth Bader Ginsburg in Gonzales v. Carhart in stating that “In sum, the notion that the Partial-Birth Abortion Act furthers any legitimate government interest is, quite simply, irrational.” Ginsburg also quoted Stevens's concurring majority opinion in the earlier Stenberg case, repeating Stevens’s words that the “state has no interest in protecting a child against a partial-birth abortion." Well, the idea that murdering a living human being during the birth process should be legal is just plain crazy. Living Constitution, millions of murdered babies.
Essentially, Obama placed the ribbon with the Medal of Freedom around Stevens’s neck, celebrating the liberty to slice and dice innocent human lives. If that’s “freedom,” give me tyranny.
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Friday, April 20, 2012
Could You Repeat My Job Description?
At a forum conducted at the Newseum in the nation’s capital, Justice Elena Kagan confirmed that she doesn’t have a clue about what the difference is between being a lawyer/advocate and being a judge/neutral referee. Said the former Solicitor General: “Sometimes I think that the job doesn’t really change at all.” That’s like a baseball umpire saying his job is the same as his former job as coach of one of the teams.In fact, Kagan explained why the job as Supreme Court Justice is even easier than being an advocate for a particular case or client: “As Solicitor General, my life was spent trying to persuade nine people and now it’s just trying to persuade eight people.” This probably explains why she sees no problem with having been an active partisan participant in the early Obamacare court cases, and then refusing to recuse herself when the cases came before the Supreme Court on which she now sits.
She wouldn’t have to do much convincing of three of her fellow Newseum panelists. They included Red Sonia Sotomayor (a wise Latina) and Ruth Bader Ginsburg (former ACLU attorney and extreme critic of the out-of-date Constitution). The third was the guest of honor—former Justice Sandra Day O’Connor. The occasion was the celebration of the thirtieth anniversary of O’Connor’s appointment to the Supreme Court, making her the first woman to sit on the court.O’Connor was appointed by President Ronald Reagan, but this was before the Republican war one women. Just as President Dwight Eisenhower once said that appointing Earl Warren to the Supreme Court was his biggest mistake in office, President Reagan proved that even great presidents make mistakes. O’Connor voted in favor of radically altering the constitutional principle of the government taking property for public use by converting it to taking of property for a public purpose. That isn’t a minor difference in wording, but a complete perversion of the clear words of the Constitution.
O’Connor actually wrote an opinion in an affirmative action case which stated that she “didn’t know if the law was constitutional or not.” Guess she didn’t quite comprehend her job description either. If a Supreme Court Justice can’t articulate her understanding of the law and the Constitution, who can? O’Connor went all touch-feely in an opinion overturning a state sodomy statute by saying that everyone “should be free to determine his or her place in the cosmos.” Yes, Madam Justice, but what about our place in America and the role of the Constitution’s Tenth Amendment?
Kagan’s deep involvement as Solicitor General in the politics and legal maneuvering surrounding the early phases of state challenges to Obamacare is well documented. E-mails to her subordinates about how to litigate the Obamacare cases abound. In one case, her e-mail after a dismissal of one of the challenges was “we won.” Considerable testimony before the Senate Judiciary Committee expanded on those e-mails and the use of Kagan’s considerable resources and staff to defend Obamacare. All of that is perfectly acceptable and even good work for a Solicitor General. But a fair, knowledgeable and ethical Supreme Court Justice would see the clear conflict of interest and incompatibility of office in hearing cases she was deeply involved in.
Perhaps this will explain her confusion. When asked at the forum if sitting on the Supreme Court bench is still challenging for her, Kagan replied: “Oh, every day is a challenge. But, you know, for me, I had never been a judge before, and just figuring out the mechanics of the job—you know, I have these four clerks, what do I do with them? What is the best process for drafting an opinion? When do I read the briefs? Do I read them the day before, the week before?”
My answer to that is “why bother reading them at all since you were instrumental in writing briefs which are merely being rehashed in the consolidated Obamacare cases pending before your high court?” Many great Supreme Court Justices had no prior judicial experience. Lack of judicial experience is certainly not a disqualifier for a seat on the high bench if all the other positive indicators are there.
I know a great many very fine trial attorneys who would be terrible judges simply because they can't shift gears from advocate to neutral referee. Likewise, I appeared before many excellent appellate court judges who had never set foot inside a trial court and had never sat on a bench previously. And sadly, I also appeared before several trial and appellate judges who never should have been on the bench in the first place, let alone elevated to a higher court. It's called "judicial temperament." But lack of ethics should be a disqualifier at every stage.
Kagan outright lied and obfuscated when she was asked by the Senate Judiciary Committee about her personal involvement in the early Obamacare cases as well as the drafting of the original legislation. Even first year law students are taught the very distinct differences between the role of the advocate and the role of the judge (unless they took their courses from Kagan when she was a law professor at the University of Chicago or Harvard Law). It’s simple. If you were actively involved in the cases at an earlier stage as an attorney/advocate, you must not be involved in hearing and determining those same cases when they come before you as a judge.
Kagan’s refusal to recuse herself on the Obamacare cases at the Supreme Court is doubly-damnable, since she knows full well that there is no higher court to reverse her decision. That said, it is a rather routine lapse of ethics for a former member of the most corrupt administration in recent memory.
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Friday, March 30, 2012
Pelosi Loves Judicial Review
We’ve been tossing around the meaning of the questions and answers during oral argument at the Supreme Court in the matter of Obamacare. Some of us are feeling fairly confident that the high court might find the entirety of the law unconstitutional. Others of us feel that the insurance purchase mandate may go, leaving everything else temporarily intact. But whatever the result, we have at least one thing that should allow us to rest a bit easier. Nancy Pelosi says the Democrats will accept the ruling.Now I gotta tell ya, in the words of Vice President Joe Biden, this is a big f-ing deal. San Fran Nan speaks for the Democrats in the House as well as the People’s Republic of San Francisco. She has now put our minds at rest by stating that her team isn’t going to grab pitchforks and torches and head for the Supreme Court building. Thank God, they’re not going to turn the premises into Red Square. And of course I always take Nancy’s word for her respect for the Constitution.
Says the Bay Area genius: “Democrats in the Congress have long believed in judicial review. We respect the third branch of government and the role they play under the Constitution, and that is a role to have the opportunity to review laws passed by Congress. This is part of our constitutional process and we respect it.” Now isn’t that a relief? Of course that made me wonder what she meant by “long believed.” Is she saying there’s a time when Democrats didn’t believe in judicial review? The lady doth protest too much, methinks. Oh, well, let’s move on.
I must admit that I find it a bit odd that the leader of a major Congressional party would find it necessary at all to announce that her faction would honor a Supreme Court decision. Isn’t that pretty much what everyone has agreed on since Marbury v. Madison back in 1803? So we’ll have to wait to see what she really means. Considering the “respect” that the Democrats in Congress and have shown for the Constitution during my lifetime, I’m going to sleep with one eye open.
Given that Pelosi (and more recently the attorney arguing in favor of Obamacare at the Supreme Court) stated that the health care law was actually about freedom, is she saying that she has no problem obeying an order that takes freedom away? Yeah, I know. A foolish consistency is the hobgoblin of little minds, but when was the last time you had to deal with anyone with a mind smaller than Pelosi’s?
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Thursday, March 29, 2012
Supreme Court ObamaCare Wrap-up!
● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.
● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.
● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.
● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.
Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.
Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.
Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.
The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.
So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.
As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.
● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.
James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.
● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?
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Monday, March 26, 2012
Justice Actually Can Prevail
The monster that is the Environmental Protection Agency has just received a big slapdown from the United States Supreme Court. The EPA, using its huge resources, entrenched bureaucratic mentality, seemingly endless ability to spend the taxpayers money and determination that it is a law unto itself lost a true David versus Goliath battle. A family which refused to be intimidated by Leviathan won.I’ve written on this topic twice before, each time with the hope that this brave couple, Mike and Chantell Sackett would be able to fight on until they won their battle to re-establish the very American proposition that your land belongs to you, not to the federal government and a gaggle of environmental fascists. You can review the underlying facts of the case here: Sacketts vs EPA. So this post is actually more celebratory than the previous two.
In a nutshell, the case involves a small parcel of land which the Sacketts had purchased so they could build their dream home in the Priest Lake region of Idaho. After pulling all the proper permits and complying with all environmental regulations imposed by the local, regional and state authorities, the Sacketts began to build. After the Sacketts had graded the land, laid the foundation for the house and erected some of the walls and support structures, the EPA came in, ordered the construction to halt forthwith, and ordered the Sacketts to dismantle what construction had been done and return the land to its natural state as a protected wetland.
The idea that the land was a protected wetland came as a total surprise to the Sacketts and every agency involved except the EPA. The “wetland” amounted to a small portion of the property, not much more than a puddle, which had only come to exist as the result of an unusually wet winter and spring. It hadn’t been there before or during the permit process, and left alone, would dry up on its own eventually. No wetland flora or fauna had yet discovered the puddle. It takes the sharp eye of an EPA bureaucrat to locate such obscure ecological marvels.
This was another example of ecoweenies and federal bureaucrats finding a “problem” to act on in order to make sure that their power intimidates both the objects of the protection orders and anyone else who might dare to think of building on or near the same location. Why is it suddenly a protected wetland? The EPA’s response was “because we say it is.”
What was determined in the Supreme Court decision is that the EPA (and by inference, other federal alphabet agencies) may not prevent injured plaintiffs from challenging the power of the agency early in the proceedings. In order to win by intimidation, the EPA had issued what is called a “compliance order.” Such an order requires that the victims of that order must first comply with all the terms of the order before attaining standing to sue the agency for a reversal of the order. For a family of moderate means, that is a near impossibility.
The Sacketts would have had to pull down all the construction done so far, including re-grading the land to put it back into its “natural state.” Then, and only then, they would have been allowed to challenge the EPA’s determination that their land was a protected wetland. Assuming they won the subsequent suit (no sure thing), they would then be able to start construction all over.
As an additional bullet in the head of the Sackett’s dreams, refusal to obey the compliance order would mean they could spend their limited funds on reversing the construction, then hiring counsel to sue just to get back where they started or pay daily fines of $37,500 until they did comply. The Sacketts chose not to comply, and after unsuccessful appeals, their fines had reached nearly $1 million by the time the case got to the Supreme Court.
The argument in court revolved around the nature of the compliance order, with the issue of the questionable wetlands determination a secondary issue. The EPA contended that a compliance order is only one step in ongoing litigation to make that determination. The Sacketts argued the opposite. And the high court agreed with the Sacketts. Speaking for the unanimous court, Justice Antonin Scalia wrote that the Sacketts had the right to sue to overturn the compliance order rather than obey it at their own expense and litigate further later.
Scalia reviewed the Administrative Procedures Act on which the EPA relied, and found that a compliance order such as the one in this case is so onerous that it comprises a final order, complete with monetary fines. The order requiring the Sacketts to restore the property to its original condition was therefore subject to immediate judicial review, both under the Administrative Procedures Act and the Clean Water Act.
No need for a private citizen to bankrupt himself complying with the order before suing to overturn the agency decision only to get back to where he was in the first place before the arbitrary and crippling order was entered. Scalia added: “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”
Justice Samuel Alito also suggested that Congress amend the Clean Water Act, the Administrative Procedures Act, and similar bureaucratic legislation in a way that would clearly and affirmatively define the limitations of compliance orders while at the same time preventing more arbitrary and capricious actions by federal agencies effectively quashing the right of private citizens to seek redress in the courts at the earliest possible time. Said Alito: “The Court’s opinion is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”
The attorney for the Sacketts argued before the Justices that the EPA (and by inference, any other federal agency) is not above the law, nor does any such agency have the right to prevent private citizens from seeking legal redress against the agency when those citizens reasonably believe they are being treated unfairly. He further argued that private citizens should not be required to suffer crippling sanctions without being able to petition the courts to grant redress and protect private property rights pending further litigation. The Supreme Court unanimously agreed.
Although this was an important and unanimous decision, caution must be advised before determining that this battle won a war. The EPA doesn’t like being told it has limited powers, and under this administration at least, it’s likely that it ain’t over ‘til it’s over. Justice Ruth Bader Ginsburg wrote a concurring opinion which pointed out that the underlying issue of whether the Sackett’s property is or is not a protected wetland is not being determined by this Supreme Court decision.
The decision is limited to the right of a private citizen to challenge a compliance order without first having to comply with it. In other words, big government-friendly Ginsburg wanted the EPA to know that she, Justice Sotomayor and perhaps one other Justice might very well be amenable to accepting their determination that the Sackett’s property is in fact a protected wetland if the case should make its way back to the Supreme Court on that issue alone.
I’ll take my victories where I can find them. This was a major limitation placed on the power of irresponsible poorly-monitored federal agencies to harass, intimidate and threaten private citizens into surrendering to unjust federal authority. In order to win the final battle and ultimately the war, Congress must act to severely restrict the now nearly-unlimited powers of the EPA to declare private property off-limits to the citizens who own it. Now you have another reason to elect a conservative Republican majority to Congress in the upcoming general election, as well as kicking The One out of the White House.
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Tuesday, March 20, 2012
Stopping the Ghost of Mussolini
The purpose of this article is to make the case for an amendment to the constitution that I will label the anti-fascism amendment.
The Spirit of the Anti-Fascism Amendment
The greatest danger of Fascism is governmental control of the means of production. This is Benito Mussolini’s Third Way between Capitalism and Socialism, where the machine of industry is not undone but rather the ownership of that machine is transferred to a national government. This is accomplished through byzantine regulations or the appropriation of the equity of industrial entities, most notably the transfer of ownership of corporate stock to the government. This grants the government the ability to control the means of production, even as the government retains its traditional role of watchdog policing disputes.
The problem with combining these two functions is something called “Segregation of Duties”. When one has the power to control an asset, to record the use of that asset and the authority to approve its use, then there is a potential for abuse and fraud and a breakdown of controls. When governments combine these powers over industry with a takeover of social services, the potential for abuse can lead to dictatorial control. The Anti-Fascism Amendment I am proposing is intended to stop our government from being able to exercise this type of power.
Thus, first, I propose the following:
Neither the federal government nor any state or local government may ever hold any ownership interest in any business or partnership, including for-profit and nonprofit corporations.With the assignment of US Senators from state appointments to general elections, we began to move power from the states to the federal government. The federal government expanded its reach into what are now "entitlement programs". This creates a "segregation of duties" issue similar to the one caused by government ownership of equity, but more subtle. Government operation of these services by using regulation to override the authority of the states, means that issues with how they are managed are less likely to be corrected by the same government that is responsible for them. Since Federal courts and agencies are the auditors who regulate and the final arbiter of disputes there is a conflict when the federal government manages the operations.
Since these “entitlements” have become an accepted part of our culture and likely can’t be removed, the fix as I see it is to divorce the regulation and decision making from the federal government. I propose the following:
All monies for programs or services that would violate the strict interpretation of the tenth amendment because they cannot be justified as a power granted by the US Constitution must be decided upon by state authority. Each state will appoint one financial expert answerable to that states comptroller’s office and their decision making authority will be subject to the executive and legislative branches of each state as deemed appropriate by state authorizes. These individuals will make up a Commission located in Kansas.
Monies appropriated for these programs will be sent directly to the Kansas Commission. The federal government may only define the purpose of the funds. All matters as to program operation and the distribution of funds shall be the express authority of the Kansas Commission. The Kansas commission must provide the rules and procedures for these programs to the federal government. The federal government will then have the duty to audit those operational procedures and financial results in accordance with the rules and procedures provided by the commission.
Fascism without Godwin’s Law
Godwin’s law states that any internet discussion will eventually devolve to a comparison to Hitler. I wish to ignore Hitler and concentrate on Fascism’s father Benito Mussolini. In his book Liberal Fascism, Jonah Goldberg places Mussolini as Fascism’s philosophical father. Fascism as an economic philosophy was based off of Corporatism which is an offshoot of syndicalism. These were ideologies which centered around worker’s unions or syndicates controlling corporations and businesses.
Many label Fascism as “rightwing” because the fascists were at odds with the communists for the control of Socialism. Both ideologies support dictatorial collectivism in the name of achieving a utopian dream. Conservatism in America is based on the classical liberalism of Jean Baptiste Say and Thomas Malthus. These are the philosophies of the US Constitution: Free Markets, Limited Government, Constitutional Republics, the regard for Property rights and Individual Liberty. Fascism is none of these things.
"There is no security of property, where a despotic authority can possess itself of the property of the subject against his consent. Neither is there such security, where the consent is merely nominal and delusive."
-Jean-Baptiste Say, A Treatise on Political Economy, 1803
“The corporate State considers that private enterprise in the sphere of production is the most effective and useful instrument in the interest of the nation. In view of the fact that private organization of production is a function of national concern, the organizer of the enterprise is responsible to the State for the direction given to production.”
–Benito Mussolini
Can I get a Trade in on my New Deal?
Prior to the New Deal this issue was a limited one since the federal government controlled much less of the social services provided. Every day social services and charities were governed only when necessary by the state and local governments As the New Deal expanded to the Great Society, the government slowly crept into the cradle to the grave socialism.
Roosevelt enacted Social Security in 1935 and Johnson enacted Medicare in 1965. Fannie Mae started in 1938. Confiscatory income tax rates up 90% were put in place to pay for these programs. The New Deal started the meme that there were “things the government should provide,” which is the basis for justifying entitlements. With the encroachment of entitlements paid by the government, the federal bureaucracy saw fit to control how the funds were spent and Federal usurpation of power began. I truly believe in my gut that this change in the zeitgeist of Washington started with the advent of Roosevelt’s New Deal.
A Funny Thing Happened to My Freedom when I let Others Secure it for me
“The general will rules in society as the private will governs each separate individual."
Maximilien Robespierre
“Liberty, equality, fraternity, or death; the last, much the easiest to bestow, O Guillotine!”
Charles Dickens
We have seen our government take stock in banks and auto industries and fund entities like Fannie Mae and Solyndra. At Gibson Guitar the government walks in, accuses them of violating Indian laws though India sees no violation, and absconds with their inventory. In the French Revolution, an unscrupulous individual named Fabre D ’Englantine ingratiated himself with the Jacobins and used similar tactics to take the estates of the “evil rich” by accusations to the Counsel of Twelve that sent merchants to the guillotine. Vive la révolution!
When a private corporation makes a mistake the government is first to chastise the leaders of the company and to enact penalties for wrongdoing. Agencies dutifully report to a congress, eager to gain a political payday appearing to protect voter’s interests. When a government sponsored entity makes similar mistakes the same politicians will obfuscate the issue to avoid the political fallout of what is Congress’s responsibility.
Giving Congress and bureaucrats the kind of control over industry, social services and government which economic Fascism trumpets and heralds, and which government has been slowly adopting, creates the justification for fraud in the mindset of politics. This is the best argument that I can come up with to try to explain it. Please remember these two things:
“The government cannot honestly regulate what it owns.”
“A Fascist Economy attracts Jacobins and brings the Terror.”
Conclusion
We must not allow the federal government to own or control industries or companies within industries. And when federal funding programs are necessary, that spending should be made through an independent National Commission answering to representatives of each state. Otherwise, we invite economic Fascism, and once economic Fascism takes hold, unlimited power and corruption follows, which destroys freedom. The amendments I propose are my modest attempt to answer that issue.
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Monday, March 19, 2012
The “Dangers” Of Obamacare
In the past couple weeks, there have been a series of articles BY LEFTISTS pointing out that Obamacare may not be all it’s cracked up to be. They identify four “dangers”:
● Danger One: Obama made a big deal of promising that “if you like your current plan, you’ll be able to keep it.” Yet, according to a CBO report, under the best-case scenario, 3-5 million people will lose their current plans. Under the CBO’s worst-case scenario, this number could be 20 million people. That would be 12% of people who are currently insured.This is what the Democrats get for massaging the law and lying about it to get it passed. And now the law goes to the Supreme Court. In two weeks, the Court will hear the oral arguments in the case. They’ve scheduled an incredible SIX hours for oral argument over three days. They have not give a case this much time in 45 years. The implication is they plan to make a major decision, which bodes poorly for the Democrats, who will in all likelihood now lose the very thing they risked so much to pass.
Of course, the reality is that this will be much worse. For one thing, historically, government “worst-case scenarios” are almost always understated by a factor of five. That would mean 60% is a more likely number. And there are several reason to believe that’s the case here. The CBO scores these things using a static model, meaning they don’t take into account how people will change their behavior over time. Instead, the CBO just does the math based on how the world is today. Thus, they did not factor in the increasing costs of policies, nor did they factor in that once companies see their competitors gaining an advantage by dumping their healthcare plans, more companies will follow.
The left is trying to downplay this by saying that businesses can’t really dump their coverage without upsetting their employees -- an interesting argument for the left to make, as they regularly claim businesses don’t care about employees. But of course, this isn’t true. Employers do things for financial reasons, not sentimentality, and financially it will be stupid not to dump the healthcare plan onto the government.
● Danger Two: The Democrats promised Obamacare would reduce healthcare costs. Of course, it actually contained nothing to bring costs down, and costs have continued to soar. Recent polls show that 49% of people blame Obamacare for the rising cost of premiums! The left is whining that it’s unfair to blame Obamacare for this because Obamacare “wasn’t intended to bring down costs,” but that’s how they sold it. I guess they shouldn’t have lied?
● Danger Three: They are starting to realize the law will not pay for itself, and the cuts in Medicare which were supposed to finance it aren’t happening. Whoops. Bankruptcy, here we come.
● Danger Four: The Democrats bet heavily on the idea that “the more the public knows, the more they’ll like it.” But that’s not happening. Obamacare’s favorability sits around 41%. And the reason for this is obvious -- it hasn’t helped anyone, but its negative effects are already being seen everywhere: higher premiums, lost insurance, doctors quitting the business, higher taxes, etc. That’s the way the Democrats set it up to hide the true cost so the law could be passed. Now they are paying the price for that deception. Moreover, according to polls, in just one year, the number of people who know what the supposed benefits of Obamacare are (subsidies, can’t be turned down, etc.) has fallen by half. Basically, it’s now seen as all pain and no gain.
Nevertheless, the left is trying to put on a brave face. Indeed, they are making all kinds of bizarre and contradictory points to explain why the various conservative justices might vote to keep Obamacare.
For example, the Washington Post argues that “Roberts is protective of the court’s reputation and sensitive to the perception that its decisions are politicized.” Thus,
he won’t want five Republican-appointed judges throwing out a law written by Democrats. Hardly. For one thing, if the Court cares about its reputation being apolitical, then it will do what it believes is correct about the law -- not what the Washington Post thinks needs to be done to please Democrats.
Moreover, this court has proven fearless at both making big decisions and making unpopular decisions. The left likes to claim that this is an “activist court” and to a degree they are right. This is not a court which respects the assertions of government that it has cart blanche power. Between this, the prior gun case, Citizens Union striking down campaign finance, and next year’s unexpected affirmative action case, this is clearly a court determined to start taking away the government’s power to control the rights the Constitution leaves to the people.
The left also argues that some of the other conservative justices might join the liberals because they have supported the use of the Commerce Clause to invade personal privacy before. Yeah, but... those were criminal cases, where conservatives have less love for the Constitution. Those also didn’t force anyone to take any affirmative actions, those laws only forbade people from doing things the Federal government wanted to make illegal. That’s a HUGE distinction.
It is interesting to note that the same leftists who are now predicting that anywhere from 1-3 of the conservative justices will jump ship are the same people who claimed that the lawsuit brought by the states was frivolous in the first place. Clearly, they had no idea what they were talking about then, and I expect they have no idea now. It seems clear to me that the Court will strike down the individual mandate, but not the rest, on a 5-4 vote.
Now here comes the part you won’t like. This COULD actually be bad for us. Here’s why. Because of the way conservatives have played the entire Obamacare debate, the public is outraged at the individual mandate, but oblivious to the rest. If the Supremes strike down the individual mandate, then the desire of the public to repeal the rest might fade. Thus, conservatives will need to pound away at the idea that the rest needs to go because it won’t work without the mandate.
On the other hand, this might actually make it easier to repeal and replace Obamacare because the public will already view the law as having been struck down by the Supremes. Thus, it shouldn’t be particularly controversial if Republicans start repealing the law’s parts piece by piece.
It’s hard to tell which way this will play. But no matter what happens, it is clear that Obamacare will continue to hurt the Democrats in November and possibly even the November after that.
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Thursday, February 9, 2012
Poor Backwards America
Since Justice Ruth Bader Ginsburg told Egyptian audiences in Cairo that nations should use models of government other than the United States Constitution for their new constitutions, a small backlash has begun to grow larger. Ginsburg prefers South Africa’s constitution (South Africa’s?!), or the Canadian basic document which contains no less than eight specific prohibitions on freedom of speech and religion.Letting no grass grow under its feet, Politico wrote a one-sided “news” article on the subject seemingly supporting Ginsburg’s view. The Politico article is entitled: “Study: Constitution in Decline,” and takes its impetus from a study done by David S. Law and Mila Versteeg entitled: “The Declining Influence of the United States Constitution.” The study was prepared for Washington University in St. Louis, and published in the New York University Law Review. To start with, there is a substantial difference between the Constitution in decline and the decline in influence of the American Constitution overseas. But I can’t disagree with the former, and the latter is a simple fact. Citing genuine statistics, the study concludes that “the US Constitution appears to be losing its appeal as a model for constitutional drafters everywhere.”
The authors looked at 729 constitutions adopted by 188 different countries from 1946 to 2006. They found that the influence of the US Constitution peaked in the 1990s at the end of the Cold War, then declined rapidly. This seems to be counterintuitive, but the statistics hold up.
There are many reasons why this might be true. The most obvious is the misplaced emphasis on “human rights” over individual rights. This is at least partially understandable. Many of the nations adopting new constitutions have little or no experience with self-rule, freedom, or the concept of ordered liberty. They are products of either the end of colonialism or the end of oppressive dictatorships. The siren song of “human rights” makes considerable sense taken in that context.
But most of these nations also have little experience with the ideals of private property ownership, contracts, and the rule of law rather than of men. Egypt and possibly Syria would be prime examples. Get rid of that nasty military dictator, replace him with democracy, and replace one-man rule with the goal of one man, one vote, one time. Egypt is quickly becoming openly hostile to America and its institutions, and its constitution is likely to look a lot more like the Koran than the US Constitution.
Another reason which hits closer to home is the activity of the “progressives” who have, starting with Woodrow Wilson, considered the Constitution to be a roadblock in the way of gross social experimentation and central government control of daily affairs. Ginsburg’s remarks bear that out. And shortly after Ginsburg made those remarks on foreign soil, Barack Obama followed up with a political speech demeaning the Constitution as being so creaky that it was impeding his efforts to fundamentally transform America.
With a few notable exceptions, administrations of both political parties have followed the liberal progression from self-government and the rule of law to government by decree and disrespect for the separation of powers so beautifully laid out in the Constitution. The prerogatives of Congress have been overcome by executive orders and bureaucratic diktats from the executive branch, all in derogation of the specific ground rules of the Constitution.
Another (perhaps minor) factor is the very recent use of foreign law in Supreme Court decisions. Foreign law has always been an element of court decisions where international treaties are involved. But even then, the Supreme Court has often interpreted treaties which are not self-actuating solely by use of American law and the Constitution. Lately, the four liberal members of the US Supreme Court have joined with a swing vote to render decisions citing foreign law that quote air-fairy “fundamental human rights.” The favor is not being returned. Foreign courts cite American constitutional decisions at a rapidly decreasing rate.
And finally, there’s the false argument that (in the words of the study): “No evolutionary process favors a specimen that is frozen in time. At least some of the responsibility for the declining global appeal of American Constitutionalism lies with the static character of the Constitution itself.” That is the argument of the intelligentsia, but the booboisie picks it up quickly.
The arguments include “the Constitution provided for slavery” (which it didn't) and “the Constitution denied women the right to vote.” Those arguments forget a fundamental fact. The Constitution is a bedrock document, and changing it was made purposely difficult. But it is not static, nor is it frozen in time. Those things which the original document got “wrong” or didn’t address were corrected or addressed in the Bill of Rights and all the subsequent amendments. When citing the Constitution, it is unfair and just plain wrong to refer only to the original document. The Constitution, as amended, is an integrated document balancing multiple rights with multiple restraints.
Simply put, as the Founders well recognized, the Constitution provides for the maximum amount of freedom without surrender to the will of temporary majorities. That latter concept is misunderstood throughout the world, and our indigenous left plays it for all it’s worth. Any document which prevents a nation from exercising what may seem to be “the will of the people” (on any given day) will be unpopular in nations which desire pure democracy—a concept which has failed every time it has ever been tried.
Anti-Constitutional, pro-democracy advocates should read history. The Founders certainly did. And their Republic, no thanks to progressive administrations, has stood the test of time since the proclamation of the Bill of Rights. But can it survive Barack Obama and Ruth Bader Ginsburg? Why should fledgling nations respect our Constitution when a sitting Supreme Court justice and our Chief Executive Officer don’t?
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Monday, February 6, 2012
Look Into My Eyes And Believe
This past week, Attorney General Eric Holder appeared again before the House Oversight Committee. During that hearing, he attempted to hypnotize the Republican majority members into ignoring the 500 pound gorilla in the room (Operation Fast and Furious) and instead to concentrate on Holder’s many accomplishments in office.This was a new tactic for Holder, since mounting evidence seemed to disprove his claim that he knew nothing about the operation. Apparently, Republicans are not highly-susceptible to the new Mesmer’s intense gaze. Rep. Ann Buerdle (R-New York) chose instead to produce a video of the earlier testimony of the family of murdered Border Agent Brian Terry. Terry was shot down by Mexican cartel members using weapons purchased during the Fast and Furious fiasco.
Buerdle simply couldn’t be charmed by Holder’s hypnotic eyes and sleep-inducing voice. After showing the video, she asked Holder: “How many more Border Patrol agents would have to die as a part of Operation Fast and Furious for you to take responsibility?”
Holder was unable to dodge the question entirely, but continued his previous pattern of refusing to use Brian Terry’s name, preferring to refer to him as “the Border Agent” or “that Agent” so he didn’t have to admit that a real human being had been brutally murdered as a result of Holder’s negligence and incompetence.
Having failed to hypnotize the Republicans, he did seem to have hypnotized himself. Never mind “that agent.” The real victim of Fast and Furious is Holder himself, with Republicans unfairly piling on. The Democrats pleaded with him not to answer Buerdle’s questions. He even ignored the sage wisdom of the Al Gore defense: “I didn’t do it, and I’ll never do it again.” Holder simply launched into a tear-jerking “poor me” performance.
Says Holder: “You know I should be held accountable for certainly my role in whatever I did or didn’t do in connection with the supervision of Fast and Furious. But, yeah, I’m Attorney General of the United States, and I should also be held accountable and perhaps even given some credit—imagine that—given some credit for the things this Justice Department has done under my leadership whether it deals with national security, revitalizing antitrust, revitalizing civil rights enforcement efforts, so one has to balance all of these things.”
OK, Mr. Attorney General, let’s look at a few of your accomplishments. In the voting rights arena, you dismissed already-proven charges against Black Panthers who intimidated white voters at the polls in Philadelphia. But on the other hand, you have used your power under the Voting Rights Act to quash redistricting in North Carolina and Texas because it might favor Republicans. In at least one of those cases, under an Act of Congress designed solely to eliminate racial discrimination, the vast majority of the voters are black in the district in question. You chose to prevent the redistricting because the locals wanted to make partisan Democratic offices into nonpartisan offices.
As for religious freedom, you have thrown your full support behind the HHS Secretary’s requirement that Catholic institutions provide free birth control and abortifacient drugs despite the strong objection of the Catholic Church. And that is merely one facet of your perpetual defenses of the unconstitutional mandates of Obamacare. In your pursuit of legalization of unconstitutional power-grabs by the Obama executive branch and its monomaniacal czars, you have written Article One and the Tenth Amendment out of the Constitution entirely.
There are even indications, unproven so far, that Fast and Furious was expanded on your watch to accomplish the goal in which it did ultimately succeed. You forgot the likely and foreseeable but unintended consequences. The indication is that you approved the operation for the purpose of getting weapons into the hands of criminals so you could then pass massive gun-control legislation to stop the sales of weapons that you and your boss don’t want in the hands of mere American citizens. Even I don’t believe that you intended for “that agent” to be murdered, but that was the result nevertheless.
Here is more of Holder’s “poor me” recitation: “I’m not claiming to be a perfect person or a perfect attorney general. I get up every day and try to do the best job that I can. I have faith in the people that work in the department, and you know that kind of question [referring to Buerkle’s grilling], I think is frankly, and again respectfully, I think that’s beneath a member of Congress.”
And so you see, dear reader, that the real villain here is Buerkle (and her Republican colleagues). After all, the AG was just doing his job and was only following orders. Seems we’ve heard that somewhere before. I should also add that Eric Holder is the last person on earth who should be deciding what is “beneath” a member of Congress. His standards are not those of a decent and fair-minded official of the law, but rather the street thuggishness of a Chicago South Side politician who will attempt to achieve his agenda by any means necessary.
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Monday, January 23, 2012
DOJ Discovers The Constitution
The United States Department of Justice under Attorney General Eric Holder considers the Constitution to be an infinitely malleable document, subject to the whim of temporary majorities, Congress and the Chief Executive. But as of last week, it found one constitutional provision it considers cast in concrete. That would be the Fifth Amendment.US Attorney Patrick J. Cunningham, deeply-involved in the Fast and Furious scandal, is invoking his Fifth Amendment right to remain silent before the House Committee on Oversight and Government Reform. The Committee is looking into who is responsible for the gun-running operation which has ended up with thousands of weapons in the hands of Mexican criminal cartels and which has resulted in an unimaginable number of deaths in Mexico and that of a Border Agent inside America's borders.
Sooner or later, high-ranking members of criminal organizations such as the Mafia and the Department of Justice learn that lying only trips them up, while silence protected by the Constitution only makes them look guilty but can’t be used as proof of guilt. That certainly fits Cunningham, who is the chief of the Criminal Division of the US Attorney’s Field Office in Arizona. When you get caught flouting the law and end-running the Constitution, become a devotee of that selfsame Constitution.
Then, when your arse is showing as you get caught with your pants down, hire a savvy lawyer to blame the victims and the system. Use the Al Gore defense when El Rotundo was caught taking money from the cash box of Buddhist nuns: “I didn’t do it, and I’ll never do it again.” Cunningham’s lawyer says: “Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress [on Operation Fast and Furious]. If, as you claim, Department officials have blamed my client, they have blamed him unfairly.” Deny the claim, then call the informants liars.
The lawyer even uses classic mob jargon. “The Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.” Cunningham doesn’t even have the honor to fall on his sword and take the heat for the actions of his Capo, Eric Holder. So he attacks the Justice Department before it has even accused him of anything. Right now, the only ones pointing the finger of blame at him are Congressional investigators, some Committee members, and a lineup of witnesses. But not the Department itself.
Now Cunningham may find himself directly in line with that pointed finger from DOJ. He is soon going to find out how much honor Holder, Obama and the whole Democratic machine have. You won’t take a small hit for us? Then we will utterly destroy you, your family, and your reputation. You have fouled up our gun-grabbing, gun-running plan, and you will pay the price for trying to dirty our skirts!
House Oversight Committee Chairman Darrell Issa says “The assertion of the Fifth Amendment by a senior Justice official is a significant indictment of the Department’s integrity in Operation Fast and Furious. The former head of the ATF has previously told the committee that the Justice Department is managing its response to Operation Fast and Furious in a manner designed to protect its political appointees. This is the first time anyone has asserted their Fifth Amendment right in this investigation and heightens concerns that the Justice Department’s motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.”
As tough as that statement is, it’s probably mild compared to what Cunningham has been threatened with by those same DOJ political appointees (including Holder himself) if he caves in somewhere along the line and refuses to take the fall for the unethical and vicious behavior of the out-of-control Justice Department.
At first, the Obama administration, with Holder as its front-man, claimed they were completely unaware of the “gunwalking” plot and had no knowledge of any of its details. Over the months since, huge piles of evidence and testimony have piled up that show those original statements to be outright lies. In order to protect their political skins, it became necessary to find someone in the Justice Department who could be blamed for keeping Holder and Obama in the dark about Fast and Furious. It’s a lame tactic, but it could become the focus on one individual that takes the spotlight off Holder and Obama long enough to get through the next election cycle. It looks like the designated sacrifice is Cunningham.
The “rogue agents” and “rogue Justice Department field office heads” theory simply reeks of unethical and perhaps criminal manipulation of facts and what Bill Clinton called the politics of personal destruction. Holder and Obama are pedaling like mad to distance themselves from this deadly scandal. Poor Cunningham is going to have to make a choice somewhere along the line. Face the possibility of serious legal sanctions against him and ‘fess up now, or wait, and risk the possibility of that plus the wrath of the Holder Justice Department. Oh, what a tangled web we weave, etc.
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Monday, January 2, 2012
Welcome Back Peeps! :)
Welcome back! We’ve missed you! Hopefully everyone had a nice Christmas?! Anyhoo, here’s a quick update on what you missed followed by a brief discussion of negative campaigning. This will all be on the year-end test...Wha’d I Miss?● The big news is that Ben Nelson (D) of Nebraska announced his retirement. This is great news for several reasons. First, I suspect Nelson had a solid chance of getting re-elected. Nelson was down in the polls, but polls this far out are unreliable because they are little more than a means of registering a protest. And come election time, people rarely look at the past but instead focus on the future. That’s where things like seniority, client services, and comfort level with candidates all come into play and Nelson scored well in those. Secondly, if Nelson had won, then the MSM narrative would have been that ObamaCare obviously wasn’t a problem with voters. This cuts that off.
● Speaking of ObamaCare, the Supremes have agreed to hear the ObamaCare case, and they’re giving it an unprecedented three hours for oral argument. Except in rare instances, each side normally gets 30 minutes.
● Still speaking of ObamaCare, there are more problems arising. Remember how the plan calls for subsidizing everyone’s healthcare? Well, it turns out the bill was written poorly and this may not be possible. Even the Obama people admit it will require a Congressional fix to solve this problem. That ain’t happening. So even if the Supremes don’t strike it down, ObamaCare may collapse under Obama/Reid’s incompetent drafting.
● Gingrich, Bachmann, Santorum and Perry all failed to get their names on the Virginia ballot. This shows a lack of seriousness as candidates which should alarm their supporters. Gingrich then doubled-down on stupid by blaming one of the people he hired to get signatures. Apparently, this individual submitted 1,200 fake signatures. . . like ACORN. But this shows Gingrich’s stupidity. First, everyone knows you hire people to cross-check the names against voter rolls. What competent candidate could let someone get away with making up 1,200 fake names? Secondly, Gingrich played too fast and loose with the rules by only giving himself about an 11% margin of error. This is stupid. Romney and Paul gave themselves 50% margins. In any event, Gingrich sued and apparently will be let on the ballot if he agrees to stop crying.
● Rick Perry also sued Virginia for not protecting him from his own stupidity. Nice conservative values there, Rick: when you don’t follow the rules and things don’t work out. . . sue. Perhaps a homosexual/teletubby conspiracy slipped Rick litigious pills? In any event, recent reports have his whining working and he too will be let on the ballot.
● American Idol Kelly Clarkson endorsed Ron Paul. While I would have preferred she picked a different Republican, I am thrilled that a young, single female in the pop music world would endorse a non-leftist.
● A new video has emerged of Gingrich praising RomneyCare when it was passed and saying it would lead to great things.
Negative CampaigningNegative campaigning is a tricky thing. Almost everyone professes to hate negative campaigning and it’s pretty clear that truly negative campaigns backfire on the candidates who wage them. But on the other hand, negative ads do work.
In fact, negative ads can be so effective, that some blame them for bringing about the current cynical state of our politics. I understand the logic in this -- if everyone attacks everyone else, then everyone is brought down in the public’s estimation and there’s nothing positive to latch onto -- but I don’t actually buy this argument. I think the cynical state of our current politics is a reaction to the lack of clear ideological choice, deep-seated corruption in both parties, and Democrats and Republicans blatantly lying about their intentions.
But what constitutes a negative ad? The Economist just wrote a stupid little piece in which they “worried” (read: hoped to promote the idea) that the Republican candidates were becoming so negative that no one would support them in November. Interestingly, the ad they discuss is a Ron Paul ad about Gingrich which shows:
● Gingrich sitting with Pelosi “warning of the dangers of climate change”;This is hardly “going negative.” These are legitimate policy questions. Does Gingrich or does he not support global warming legislation? He did before and he’s hazy on it now. That’s a pretty important issue. Gingrich claims to be an outsider, yet he’s bragging about his speaking fees at large corporate gatherings. Is it not valid to question who his supporters are? And how can Gingrich’s support for the central abuse of ObamaCare not be a policy issue? (Also, isn’t it funny that supporting a Democratic agenda is “going negative”?)
● Gingrich bragging about receiving “speaking fees of $60,000 a pop”; and
● A voiceover pointing out that “Gingrich once supported the individual health mandate.”
The reality is none of this is negative. Negative is false statements, distortions of records, and baseless smears hinting that someone is a racist, a harasser, a philanderer or a bigot. Negative is repeating isolated, context-less quotes from decades ago and pretending they represent a lifetime record. Negative is smearing a candidate’s family or invading their bedroom. Negative is suggesting Barry Goldwater is unstable and will start a nuclear war, suggesting Ronald Reagan is old and senile or that he cut a deal with the Iranians, and publishing fake rumors about affairs that never happened, spreading lies about military records, and springing stories about a drunk driving arrest 40 years prior. Negative is NOT pointing out that your opponent supports political policies with which you disagree.
I am not a believer in negative campaigning. I think it cheapens your victory and destroys your mandate, and positive candidates will always be better leaders. But I also think we need to stop calling the pointing out of policy disagreements negative campaigning. And we really need to stop letting the MSM spin any criticism of another candidate as negative just so they can drive the narrative that Republicans are all negative.
(P.S. Don't forget, Star Trek Tuesdays start tomorrow morning at the film site.... 9:00 AM, be there.)
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