Saturday, August 13, 2011
Friday, August 12, 2011
11th Circuit Court Of Appeals Rules That Obamacare's Individual Mandate Is Unconstitutional
President Barack Obama's healthcare law suffered a setback Friday when a U.S. appeals court ruled that it was unconstitutional to require all Americans to buy insurance or face a penalty.The opinion of the 11th Circuit Court of Appeals concludes:The Appeals Court for the 11th Circuit, based in Atlanta, found that Congress exceeded its authority by requiring Americans to buy coverage, but also reversed a lower court decision that threw out the entire healthcare law...
A divided three-judge panel of the appeals court found that it did not pass muster under that clause or under the Congress' power to tax. The administration has said the penalty for not buying healthcare coverage is akin to a tax.
"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," the majority said in its opinion.
That opinion was jointly written by Judges Joel Dubina, who was appointed to the appeals court by Republican President George H.W. Bush, and by Frank Hull, who was appointed by President Bill Clinton, a Democrat.
We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.
Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.
Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce.
The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.
Accordingly, we affirm in part and reverse in part the judgment of the district court.
George Mason Law Professor Ilya Somin writes, "Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional. It is now extremely likely that the Supreme Court will end up hearing the case, as the Court cannot allow a situation where the mandate is valid in some parts of the country but not in others. I recently opined on the case’s prospects in the Supreme Court here."
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Thursday, August 11, 2011
Michael Medved: "NY Times Vindicating Bush Cuts"
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In an August 8th editorial entitled “The Truth About Taxes” the New York Times finally (if unwittingly) acknowledged Bush reforms weren’t just “tax cuts for the rich.” America’s “Journal of Record” wrote: “Letting all of the cuts expire at the end of 2012 would save $3.8 trillion over the next decade. Letting the tax cuts expire for those making more than $250,000 would save $700 billion.” In other words, 82 percent—82 percent!—of Bush tax relief goes to households earning below $250,000, benefiting the middle class, and poor families who got dropped from tax rolls altogether.
It’s a gigantic lie that Bush tax rates favor only “millionaires and billionaires” as the president regularly suggests. The Times numbers reveal that targeting only wealthy taxpayers would make scarcely a dent in overall debt—reducing it at most by 5 percent.
Newt Gingrich Launches Tenth Amendment Restoration Project As Part Of New "Contract With America"
GOP presidential candidate Newt Gingrich launched a new campaign Tuesday to solicit ideas from the public for a law strictly enforcing the Tenth Amendment and rolling back federal regulations.
The project is called Team 10, a “crowd-sourced, participatory effort” to “develop ideas for enforcing the 10th Amendment and returning power back home.” The project will also be part of a new “Contract with America” by Gingrich, the campaign said in a statement.
The Tenth Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In other words, all authority not granted to the federal government by the Constitution is reserved to the states in what are called unenumerated rights. States have often invoked the Tenth Amendment to resist expansive federal laws, such as Obama’s health care reform and cap-and-trade legislation.
“Since the 1930s the president and Congress have steadily ignored the Tenth Amendment,” Gingrich said in a conference call today. “Back then, there was a general assumption that life was mostly lived in your local neighborhood. But then you suddenly had a huge increase in government, followed by what Lyndon Johnson called the ‘great society,’ — although I would call it bureaucratic socialism.”
“What you’ve seen is an extraordinary increase in government power,” Gingrich continued.
The idea behind a Tenth Amendment enforcement act, Gingrich said, would be to kick federal regulations — and the resulting paperwork — back to the states, something he said could save money on both the state and federal side.
Some of the ideas being floated on the Team 10 Facebook page right now include “keeping gun control at the state level” and “annulment by judicial review” – a process that would allow states to reject acts of Congress.
“It is really important that we develop a coherent, rational approach to the Tenth Amendment,” Gingrich said in a conference call today. “If we do, it could have huge impact on reducing the deficit and recentering government.”
Gingrich said the project plans to roll out a proposed bill six to eight months in the future. He said he also hopes to garner support from congressional candidates in the upcoming elections.
“We want to write a real bill,” Gingrich said. “This isn’t an exercise in public relations.”
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Wednesday, August 10, 2011
A Gun Activist Files Claim Against Federal Regulatory Power Over Local Instrastate Gun Sales Based On 10th Amendment And Scope Of The Commerce Clause
The Wall Street Journal reports:
With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.
He's not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors.
For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress's constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement.
Eight states have adopted his Firearms Freedom Act, which Mr. Marbut conceived as a vehicle to undermine federal authority over commerce.
Ten state attorneys general, dozens of elected officials and an array of conservative groups are backing the legal challenge he engineered to get his constitutional theory before the Supreme Court. A federal appeals court in San Francisco is now considering his case.
Mr. Marbut isn't basing his pro-gun effort on the Second Amendment, the one that talks about a right to bear arms, but on the 10th, which discusses the limits of federal power.
"This is really about states' rights and federal power rather than gun control," Mr. Marbut says. There is "an emerging awareness by the people of America that the federal government has gone too far," he maintains, "and it's dependent on a really weird interpretation."
He is talking about the 1942 Supreme Court case of Wickard v. Filburn, which looms for him the way the Dred Scott decision denying rights to blacks did to antebellum abolitionists.
The narrow question in 1942 was whether the federal government could regulate wheat a farmer grew for use on his own farm. But the constitutional issue concerned how far Congress's authority to oversee interstate commerce stretched.
The court ruled Congress could regulate almost any activity that might interfere with national policy. That set the legal basis for a panoply of federal laws...
Utah Attorney General Mark Shurtleff, who filed a brief representing 10 states in support of Mr. Marbut's case, says it will be tough to get the Wickard decision overturned outright.
But he believes today's Supreme Court could be persuaded to narrow Congress's commerce-regulation authority.
In recent years, the court's conservative majority has overturned precedents to strike down laws restricting handguns and regulating corporate political spending.
"Clearly, since Wickard, the federal government has gone way beyond" its authority, Mr. Shurtleff says. "We would like to see that rolled back."
Mr. Marbut wants the court to declare that the Wickard case "was wrongly decided, and the whole trail of cases that rely on it were wrongly decided."
Mark Meckler, national coordinator of the Tea Party Patriots, says Mr. Marbut has engineered "a wonderful legal approach to doing" what he considers "the fundamental issue of our time…putting government back in the box."
Mr. Marbut says he doesn't belong to a tea-party group, though "I get along with them, philosophically."
The Montana Firearms Freedom Act, which he drafted and pushed through his state's legislature, declares that guns made in Montana, stamped "Made in Montana" and staying in-state aren't subject to federal regulations.
After the state enacted it, he announced plans to manufacture the Buckaroo, a miniature rifle that is based on an 1899 Winchester model and intended for children between ages five and 10. Orders, at $200 apiece, poured in. Some came from lawmakers.
"I have four grandkids on the ground, two more on the way, and my youngest gets married on June 12th, so I expect results from him by mid-winter," Republican State Rep. Krayton Kerns told Mr. Marbut by email last year. "Put me down for seven with the option to purchase more."
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives was less enthusiastic. It wrote to Mr. Marbut saying: "Federal law supersedes the [Montana Firearms Freedom] Act, and all provisions of the Gun Control Act and the National Firearms Act" remain in force.
Mr. Marbut went to court. The "Constitution confers no power on Congress to regulate the special rights and activities contemplated by the MFFA," his petition argued, while the Ninth and 10th Amendments assign "all regulatory authority of all such activities within Montana's political borders" to "the sole discretion of the State of Montana."
The Wickard case involved a challenge to a 1938 law that sought to keep farmers from going bankrupt. It said if the size of a year's wheat crop was projected to exceed the norm by 35%, the Agriculture Department could prop prices by setting a cap on wheat acreage. A farmer who ignored it had to surrender his excess production or pay a penalty.
Ohio farmer Roscoe Filburn, who had planted double his allotted 11.1 acres, preferred to do neither. Saying he planned to use the excess wheat himself, he argued that it fell beyond federal regulation by never entering the stream of commerce.
The Supreme Court disagreed, in a unanimous opinion by Justice Robert Jackson.
He invoked an 1824 case in which Chief Justice John Marshall said federal interstate-commerce power doesn't stop at state boundaries but reaches any activity that "may affect other States." Thus, even local, noncommercial activity "may still…be reached by Congress if it exerts a substantial economic effect on interstate commerce," he wrote.
The idea was that every bushel Mr. Filburn grew was one less he needed to buy, reducing demand; if every farmer did the same, the price pressure would be "far from trivial," the court said.
Coming at the end of a string of similar rulings, the decision wasn't controversial at the time, says Jackson scholar John Barrett, a law professor at St. John's University in New York. It was seen as reflecting the framers intent to create a powerful federal government.
In drafting the Constitution, "there really was an interest in creation of a national market and an empowering of the government to oversee a national market," he says.
Some conservatives never accepted the reasoning; a 1988 Reagan Justice Department document said it stretched "the power of Congress to regulate pursuant to the Commerce Clause to the breaking point."
A 2005 suit contended the commerce power shouldn't permit federal authorities to prosecute someone for growing marijuana if his state's law let him do so for personal medical use. Invoking the Wickard reasoning, the Supreme Court held otherwise, 6-3.
Until Mr. Marbut, few imagined overturning it. He quotes science-fiction author Robert A. Heinlein: "When it's time to railroad, people start railroading."
He might seem an unlikely candidate to lead a constitutional counterrevolution. Mr. Marbut, 65, lives alone outside Missoula, in a solar-powered geodesic dome he built from a kit, on the remnant of a cattle ranch his family once owned. He started college but didn't finish. After Army service, he knocked around Alaska before coming home to devote himself to guns, his passion.
After a dispute with others in the state's National Rifle Association affiliate in the late 1980s, Mr. Marbut set up his own lobbying organization, the Montana Shooting Sports Association.
He teaches gun-safety classes, has self-published a book on Montana gun laws and manufactures targets for sale to shooting ranges. The NRA didn't respond to requests for comment.
Though he lost a bid for the Montana Legislature, he became the state's pre-eminent firearms advocate because of his singular focus. He organizes shooting matches to raise money for pro-gun politicians. He writes legislation for the lawmakers he helps elect. Montana lawmakers have enacted dozens of his bills, most of which relax gun regulations.
But Montana couldn't alter federal law. That led Mr. Marbut to the source of congressional authority over guns in the state, the Wickard case.
He concluded the Supreme Court had twisted the words of the commerce clause, which grants Congress authority to "regulate Commerce with foreign Nations, and among the several States."
Last year, in an essay that incorrectly attributed Justice Jackson's opinion to Justice Owen Roberts, he wrote: "It's time for the [Chief Justice John] Roberts of 2010 to trump the squishy [Owen] Roberts of 1942."
He conceived of the Firearms Freedom Act as a way to get it reconsidered. He says he focused on the commerce clause, rather than Second Amendment theories popular with firearms enthusiasts, to prompt a broad ruling that would rein in federal power.
The bill failed twice but passed in 2009, after Republicans won statehouse majorities. The Legislature's nonpartisan legal adviser said it would probably be found unconstitutional.
Gary Marbut is absolutely correct in the claims underpinning his filed lawsuit. He understands the Constitution far better than the federal courts that will unfortunately most likely rule wrongly on the issue. I do not have the necessary confidence in the federal courts to believe they will suddenly discover and affirm Marbut's common sense and historically accurate view of the Constitution. But you have to give Mr. Marbut credit for fighting the good fight.
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Tuesday, August 9, 2011
Philidelphia Mayor Talks Tough To Black Teens After Latest Violent Flash Mob: "You Have Damaged Your Own Race”
Mayor Michael A. Nutter, telling marauding black youths “you have damaged your own race,” imposed a tougher curfew Monday in response to the latest “flash mob” — spontaneous groups of teens who attack people at random on the streets of the city’s tourist and fashionable shopping districts.Tweet
“Take those God-darn hoodies down, especially in the summer,” Mr. Nutter, the city’s third black mayor, said in an angry lecture aimed at black teens. “Pull your pants up and buy a belt ‘cause no one wants to see your underwear or the crack of your butt.”
“If you walk into somebody’s office with your hair uncombed and a pick in the back, and your shoes untied, and your pants half down, tattoos up and down your arms and on your neck, and you wonder why somebody won’t hire you? They don’t hire you ‘cause you look like you’re crazy,” the mayor said. “You have damaged your own race.”
Mr. Nutter announced that he was beefing up police patrols in certain neighborhoods, enlisting volunteers to monitor the streets and moving up the weekend curfew for minors to 9 p.m.
Parents will face increased fines for each time their child is caught violating the curfew.
The head of Philadelphia’s chapter of the National Association for the Advancement of Colored People, J. Whyatt Mondesire, said it “took courage” for Mr. Nutter to deliver the message.
“These are majority African-American youths and they need to be called on it,” Mr. Mondesire said.
Leading UCLA Political Science Professor Provides "Scientific Proof" Of Liberal Media Bias And Its "Distortion Of The American Mind"
Visit http://www.timgroseclose.com/media/dP20110808_Hr_3_Sg_AB_INT_Tim_Groseclose.mp3 to listen to Dennis Prager's interview with Professor Tim Groseclose.
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Wall Street Journal: Irrational Praise Regarding How Smart Obama Is
TweetThree decades before Mr. Obama told his people “We are the ones we’ve been waiting for,” Times columnist Tom Wicker wrote that “Mr. Carter seems to have made the restoration of the people’s faith in themselves his primary campaign strategy.”
Anthony Lewis noted how listeners come away “struck most of all by how smart Carter is,” and he found the Georgian’s bid for the presidency “a little reminiscent of John Kennedy’s emergence in 1960.” Picking up the theme, R.W. Apple likened Mr. Carter to JFK in the way he persuaded skeptics that his faith was no threat to the separation of church and state. After interviewing the candidate “who saw it as his purpose to save America,” Norman Mailer told readers of the Times magazine “the wonder of it was that he was believable.”
Then there’s realist theologian Reinhold Niebuhr. During the 2008 campaign, Mr. Obama proved his intellectual chops when, in response to a question about Niebuhr from a New York Times columnist, he replied, “I love him. He’s one of my favorite philosophers.” The column went on to describe Mr. Obama’s campaign as “an attempt to thread the Niebuhrian needle.”
Alas, even here Jimmy Carter got there first. The frontispiece of his campaign biography “Why Not the Best” features one of his favorite quotations from Niebuhr: “The sad duty of politics is to establish justice in a sinful world.” Scotty Reston duly noted Mr. Carter’s admiration for Niebuhr in a Times column written when the future President Obama was just 14 years old.
In other words, it’s not just the way President Obama’s policies have not worked out that invites the Jimmy Carter parallel. It’s also the over-the-top praise each received before entering office. In both 1976 and 2008, each Democrat was presented as the kind of smart, cool, new politico who was going to—fill in the cliché—”transcend politics as we know it,” “appeal across traditional lines,” “bring America together,” etc.
Donald Rumsfeld Faces Another Torture Lawsuit
The Wall Street Journal Law Blog reports:
Probably to his chagrin, the past week has launched Donald Rumsfeld back into the media spotlight amidst allegations of torture and harsh interrogation techniques.TweetThe Seventh Circuit Court of Appeals in Chicago ruled Monday that two American men can move forward with a civil lawsuit against the former Defense Secretary regarding allegations of torture by the U.S. military in Iraq. (Read full reports here and here.)
Last week, a district judge in Washington let a similar torture allegations case – involving an American translator who worked for the Marines in Iraq – proceed against Rumsfeld, as reported here by the Law Blog.
Saudi Arabia Removes Ambassador From Syria, American Ambassador Outrageously Still Staying Despite Human Rights Violations
Even the Saudis recalled their ambassador from Syria:
Saudi Arabia has said it is recalling its ambassador from Damascus in protest against Syria’s deadly crackdown on anti-government demonstrators.
A statement from King Abdullah said the violence was “unacceptable” and called for it to stop before it was too late.
It came hours after the Arab League issued its first official statement, strongly condemning the violence.
On Sunday, more than 80 people died as the army launched assaults in eastern and central Syria, activists said.
Meanwhile, the American ambassador remains in Syria to "witness" the brutality, as if there are not enough Syrians to do that, as if it is not more important for the United States to send a diplomatic message of ostracizing by removing our ambassador:
TweetThe State Department welcomes the announcement by Saudi Arabia that it is recalling its ambassador from Syria, but the U.S. has no plans to do so. “This is a choice by any sovereign nation whether to recall its ambassador. It clearly sends a message to the government,” said Toner. “For our part, we’ve talked about this last week and continue to believe that Ambassador Ford is playing an important role on the ground, bearing witness to what’s going on in Syria.”
Monday, August 8, 2011
Wall Street Journal: "The Road To A Downgrade A Short History Of The Entitlement State"
Before the downgrade by S&P, the Wall Street Journal predicted the coming downgrade and explained exactly why it would come. WSJ wrote that "President Obama will deserve much of the blame for the spending blowout of his first two years... But the origins of this downgrade go back decades, and so this is a good time to review the policies that brought us to this sad chapter and $14.3 trillion of debt. " Read this very important article and see the full history at http://online.wsj.com/article/SB10001424053111903999904576470551476951590.html
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Obama In Denial: "“We’ve Always Been, And Always Will Be, A AAA Country”
Uh, no Mr. President. We have always been, and under your presidency will no longer be, a AAA country.
Visit msnbc.com for breaking news, world news, and news about the economy
TweetUCLA Law Professor Eugene Volokh On Constitutionality Of The Deficit Reduction Committee
Eugene Volokh has a post on Volokh Conspiracy debunking claims of the unconstitutionality of the Deficit Reduction Committee established by the recent debt ceiling act.
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Federal Judge Allows Suit Against Rumsfeld For Torture
The AP reports that U.S. District Judge James Gwin has allowed an Army veteran who says he was abducted and tortured by U.S. forces in Iraq to move forward with a suit against former Defense Secretary Donald Rumsfeld.
The judge wrote:
The court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad. ... The stakes in holding detainees at Camp Cropper may have been high, but one purpose of the constitutional limitations on interrogation techniques and conditions of confinement even domestically is to strike a balance between government objectives and individual rights even when the stakes are high.
The Obama Administration argued that Rumsfeld cannot be sued personally for his official conduct. The Supreme Court's standard regarding immunity of such officials from suit, says the AP article, "requir[es] that they be tied directly to a violation of constitutional rights and must have clearly understood their actions crossed that line."
TweetThe Rule Of Men, Not Law: It Started With The Blizzard Of Arbitrary Obamacare Waivers, Now "Waivers" Spread To Department Of Education
Secretary of Education Arne Duncan has announced that he will unilaterally override the centerpiece requirement of the No Child Left Behind school accountability law, that 100 percent of students be proficient in math and reading by 2014.
Mr. Duncan told reporters that he was acting because Congress had failed to rewrite the Bush-era law, which he called a “slow-motion train wreck.” He is waiving the law’s proficiency requirements for states that have adopted their own testing and accountability programs and are making other strides toward better schools, he said.
The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.
In a republic that adhered to Constitutional principles, the President would seek to have the legislature repeal the provision of the law that is now found to be impractical or against public policy, rather than outrightly usurp legislative authority and unilaterally declare the provision "waived." It becomes more evident with each passing day, that we now live under the rule of whim, and not the Constitutionally intended rule of law. Tweet
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