Category Archives: SCOTUS

Supreme Court to reexamine Obamacare

Fox News:

The Supreme Court on Monday ordered a federal appeals court to reconsider Liberty University’s legal argument that President Obama’s health care law violates the school’s religious freedom.

The case will be returned to the 4th U.S. Circuit Court of Appeals in Richmond, Va.

“Today’s ruling breathes new life into our challenge to ObamaCare,” Mat Staver, founder and chairman of Liberty Counsel, which filed the suit on behalf of the school, said Monday. “Our fight against ObamaCare is far from over.”

A federal judge in 2010 rejected Liberty’s claim, and the appeals court later ruled the lawsuit was premature and failed to address the substance of the school’s arguments.

The Supreme Court upheld the health care law in June 2012.

In the high court’s 5-4 decision, the justices used lawsuits filed by 26 states and the National Federation of Independent Business to uphold the health care law, then rejected all other pending appeals, including Liberty’s.

The school is challenging the constitutionality of the part of the law that mandates employers provide insurance and whether forcing insurers to pay for birth control is unconstitutional under the First Amendment’s free exercise of religion clause.

The appeals court ruled last year the Anti-Injunction Act barred it from addressing the merits in the case. The act blocks any challenge to a “tax” before a taxpayer pays it — in this case referring to the penalties associated with failing to obtain health insurance.

However, the Supreme Court’s ruling stated the act did not serve as a barrier to lawsuits challenging the health care law. On that basis, Liberty University immediately petitioned the court to allow it to renew its original case.

Jane Roe of Roe v. Wade makes pro-life political ad! (video)

[Editor’s Note – This ad was produced with Jane Roe by Andrew Beacham and Randall Terry. In the interests of full disclosure Andrew Beacham is a friend of mine.]

The Weekly Standard has a piece about the production of this video.

Weekly Standard:

Dead babies. There you have it. It causes discomfort, but I said it outright. Terry would approve, since that’s what he calls them, mirroring his conviction. It’s my conviction too, I suppose, since I’m a pro-lifer when I think about it, which like many of similar stripe, I mostly don’t. But if we’re being honest, I’m not as convicted as the kind of people who use formulations like “dead babies” in polite conversation. It’s the kind of talk that causes even many pro-lifers to nervously scan the horizon for avenues of escape from the barking mad guy who thinks he’s an Old Testament prophet.

“Dead babies” are words that arrive weaponized. You’ll notice Terry doesn’t call dead babies “the unborn,” or frame their plight in the context of the “right to life” or “reproductive choice.” He will often call a Planned Parenthood center an “abortion mill,” but otherwise rarely even uses the word abortion. “You abort the takeoff of a rocket,” he says mockingly. “You murder a human being.” He prefers calling abortion “baby killing,” and abortionists “baby killers.”

I dwell on the words “dead babies” because they animate and illuminate every corner of Randall Terry’s large and often messy life. They undergird his credo, which is elegantly simple, and it goes like this: If you believe abortion is murder, then act like it. He seeks not to persuade, but to offend. Or to persuade by offending.

27% Less Likely to Vote for Obama After Supreme Court Ruling

Chief Roberts got his wish, he got involved in the election.

TownHall and Quinnipiac University:

Now that ObamaCare has been upheld as a massive new tax, the Supreme Court decision not the scrap the legislation is bleeding into the political arena in a very big way. According to a new Quinnipiac Poll, 27 percent of voters are now less likely to vote for Obama. Independent voters are in the same boat.

A total of 55 percent of American voters say a presidential candidate’s position on health care is “extremely important” or “very important” to their vote in November, the independent Quinnipiac (KWIN-uh-pe-ack) University poll finds. While 59 percent say the Supreme Court decision will not affect their vote, 27 percent say it will make them less likely to vote for President Barack Obama, while 12 percent say more likely. Independent voters say less likely 27 – 9 percent. [Meaning 27% of Independents less likely to vote for Obama after the SCOTUS ruling and 9% more likely – Political Arena Editor]

In A World Where Marriage Is Redefined Religious Freedom Does Not Survive (video)

This will probably have to go to the US Supreme Court. The First Amendment is clear on this and so is federal case law. One of the problems with State Judges is that many of them are appointed because they made contributions and thus they are political hacks, not legal minds. The 14th Amendment binds the Bill of Rights to the states. Every lawyer knows this, but so far these judges in New Mexico just don’t care.

MUST SEE: ObamaCare’s Impact on YOU (video)

You know that the elite media in the United States has failed us when Russia Today (AKA “RT”) – the mouthpiece for Vladimir Putin – gives the best analysis I have yet seen on a major network (granted RT isn’t huge in the United States, but around the world it is). Russia Today not only explains why the Roberts ruling is preposterous as a matter of law, and then explains several of the economic consequences of ObamaCare. This very writer has called out Russia Today as a mouthpiece for Putin before, but with that said, in this segment Russia Today displays one of the finest pieces of television journalism I have ever seen.

Russia Today has an agenda of showing the United States as authoritarian, silly, corrupt, willing to break its own laws, and anything but small government. Russia Today doesn’t have to make it up any more with the Obama Administration because all they have to do is highlight and accurately cover the stories the elite media will not to accomplish Putin’s goals.

Our friend Samantha Frederickson has a GREAT post explaining the consequences of ObamaCare that will impact you after the clip from Russia Today below. Start the video at the 2:00 mark:

Now consider this — the PPACA sets forth a “fine” (tax) of $2,000 per employee for a business that has 50 or more and does not provide “at least” the minimum “insurance” to all.

There is no health care plan I’m aware of that a business can buy today that costs less than $2,000 per employee per year, and which also meets the requirements in the law.  None.  That was almost impossible to meet back in 1995 for a healthy, 18 year old insured single male.  It’s flatly impossible now and it’s doubly-so if your workforce has other than 18-year old single, healthy males in it.  I know this to be factual because I was responsible for buying it for our employees as a CEO of a company.

Therefore the incentive is for all businesses to drop health care.

Period.

Second, your choice is to either (1) buy and have said plan (whether through employment or individually) or pay a “fine” (tax) of 1% of income (increasing to 2.5% of AGI in 2016.)  The minimum “fine” is $95 starting in 2013, rising to $695 in 2016.  The average family income is about $50,000/year, which means that the fine (tax) will be $1,250 in 2016.  It’s less now.

You cannot buy health insurance at their “minimum level” for anything approaching $1,250 a year no matter how healthy you are at any age. 

The law prohibits insurance companies from charging you more if you’re sick, or refusing to cover you at all.  They must accept everyone on equal terms.

Therefore:

  • Businesses will drop coverage; it’s cheaper (by far) for them to pay the fine and, for those under 133% of the federal poverty level, those employees can go onto Medicaid.  This is a “family of four” income of $31,900 (as of today; it will go up of course.)  That’s roughly the second quintile.
  • Individuals will drop coverage and pay the fine, since it’s far cheaper than to buy the “insurance.”

Both will buy the “insurance” only when they get sick, since they cannot be upcharged.

The cost of “insurance” will thus skyrocket to 10x or more what it costs now, just as it would if you bought auto insurance only after you wrecked or homeowners insurance only after you had a fire.

At the higher price nobody will be able to afford to buy the insurance at all, since that will be indistinguishable from just paying for whatever is wrong with you, plus the insurance company markup.

In very short order the entire medical system and health insurance scheme will collapse, leaving only two choices — either a return to free market principles (including all I’ve argued for since this debate began) or a single-payer, fully-socialized system ala Canada.

You can bet the government will continue to try to change the terms of the deal — including ramping up the tax/fine and other games, to prevent this outcome, but they will fail.

Now the question becomes this:

Which Presidential political candidates have told you the above, and what are their answers to this dilemma?

Let’s go down the list.

  • We know what Obama’s is — he passed it.  You will lose your private health care under Obama.  Period.  We are headed for a fully-socialized medical system and a collapse of the current medical paradigm under Obama.
  • We know what Gary Johnson’s position is — he wants to “block grant” all Medicare and Medicaid to the states, cut the amount of money in the budget (all line items) 43% and repeal Obamacare (including the mandate.)  But he refuses to demand an end to the cost-shifting where Juanita the illegal Mexican immigrant who is 7-1/2 months pregnant while drug and alcohol dependent shows up in the hospital, in labor, and foists off a $2.5 million NICU and birth expense bill on you!  He also refuses to stop the drug companies from effectively forcing Americans to bear the cost of all drug and device development and he has refused to put a stop to differential billing.  The latter two only exist because of explicit federal laws that make lawful in the health industry market behaviors that are illegal in virtually every other line of work (see The Sherman Act, The Clayton Act, and Robinson-Patman for starters.)  All of these facts are why the costs are ramping in the first place, which means his plan will simply force the States into bankruptcy and continue screwing you at the same time.
  • We don’t know what Romney’s plan is in detail.  He’s been oddly silent in that regard.  He says “Obamacare is not the answer” but he passed it as Governor on a state basis!  He too advocates nothing to put a stop to the cost-shifting and anti-competitive acts of drug and device makers nor hospitals and other medical providers.  He too wants to block grant Medicaid but that does nothing to address the problem and will simply bankrupt the state budgets (as noted for Johnson.)   Conspicuously absent from Romney’s plan (as is true for Johnson) is (1) a repeal of EMTALA, (2) a demand for level, consistent pricing irrespective of how one pays for a service (3) and a demand to remove anti-competitive laws protecting differential billing across state and national boundaries (e.g. Viagra for $2 in Canada .vs. $20 here) so that Americans are not forced to subsdize everyone else in the world and you pay the same price as the guy next to you in the hospital for the same product or service, instead of 2x, 3x, 5x, or even 100x as much.

So we have three Presidential candidates, none of which will do a damn thing to fix what’s wrong with health care.  All three are promoting a path that will bankrupt the States, bankrupt the Federal Government, bankrupt you or all three.

All three are promoting mathematical impossibilities.  All three are protecting monopolistic behavior and refusing to address specific laws that were passed to protect that behavior and special government-granted privilege; without those protections that monopolistic behavior would immediately collapse.

And worse, none of them has proposed a damn thing to deal with what the Supreme Court just did, which is grant a permanent ability to the Federal Government to compel any behavior by linking it to a tax.  Some examples of where this can (and might in the near future!) go include:

  • You make cars.  You’re told to sell a car to anyone who makes under $25,000 a year for $5,000.  This is of course under your cost of production.  If you refuse, every car you make is subject to a $5,000 tax.  This is now Constitutional, as of this last week.
  • You would like to have three kids.  The government decides that you may have only two.  If you have get pregnant with a third and refuse to have an abortion you must pay $10,000 a year in additional tax forever.  This is now Constitutional, as of last week.
  • You may have all the abortions you want, but each costs $10,000 in tax.  This is Constitutional, as of last week.
  • You must eat Broccoli and submit receipts with your 1040 proving you bought 1lb of Broccoli per person in your household per week.  If you do not, you must pay $5,000 in additional tax.  This is Constitutional, as of last week.
  • If you are more than 10lbs overweight you must pay $2,000 of additional tax for every 10lbs overweight you are, with no cap.  This is Constitutional, as of last week.

You probably think I’m kidding on this.  I’m not.  This is what the Roberts Court held.  There is literally nothing that Congress cannot mandate that you do, or not do, under penalty of paying a tax.  All that was unconstitutional before the ruling now is explicitly constitutional if the only “compulsion” to do (or not do) a given thing is that you will be taxed if you refuse.  The court promised to review “reasonableness” of any such taxes in the future, but note that at the same time the court ignored two other problems with the Health Care law, making a lie of their claim of “future reasonableness” tests right up front:

  • Direct taxes are unconstitutional without being apportioned.  This is clearly a direct tax and it is not apportioned.  It is therefore unconstitutional, but the USSC simply ignored this. (The 16th Amendment was required to make income taxes constitutional for this reason.)
  • The Anti-Injunction Act prohibits suing the government over a tax until you have actually paid it.  This means that if the PPACA “penalty” is a tax then the entire lawsuit that went to the USSC is moot as it’s not yet “ripe” (since nobody has yet paid the tax.)  If they were going to find that this was a tax they were thus bound to dismiss the entire complaint as unripe.  They ignored that too.

In short the USSC has become no more legitimate than the North Korean government and is unworthy of your respect.

Prof. Paul Moreno: A Short History of Congress’s Power to Tax

The case against Roberts’ preposterous ruling just keeps building.

Law Professor Paul Moreno:

The Supreme Court has long distinguished the regulatory from the taxing power.

In 1935, Secretary of Labor Frances Perkins was fretting about finding a constitutional basis for the Social Security Act. Supreme Court Justice Harlan Fiske Stone advised her, “The taxing power, my dear, the taxing power. You can do anything under the taxing power.”

Last week, in his ObamaCare opinion, NFIB v. Sebelius, Chief Justice John Roberts gave Congress the same advice—just enact regulatory legislation and tack on a financial penalty, as in failure to comply with the individual insurance mandate. So how did the power to tax under the Constitution become unbounded?

The first enumerated power that the Constitution grants to Congress is the “power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.” The text indicates that the taxing power is not plenary, but can be used only for defined ends and objects—since a comma, not a semicolon, separated the clauses on means (taxes) and ends (debts, defense, welfare).

This punctuation was no small matter. In 1798, Pennsylvania Rep. Albert Gallatin said that fellow Pennsylvania Rep. Gouverneur Morris, chairman of the Committee on Style at the Constitutional Convention, had smuggled in the semicolon in order to make Congress’s taxing power limitless, but that the alert Roger Sherman had the comma restored. The altered punctuation, Gallatin said, would have turned “words [that] had originally been inserted in the Constitution as a limitation to the power of levying taxes” into “a distinct power.” Thirty years later, Virginia Rep. Mark Alexander accused Secretary of State John Quincy Adams of doing the same thing after Congress instructed the administration to print copies of the Constitution.

The punctuation debate simply reinforced James Madison’s point in Federalist No. 41 that Congress could tax and spend only for those objects enumerated, primarily in Article I, Section 8.

Congress enacted very few taxes up to the end of the Civil War, and none that was a pretext for regulating things that the Constitution gave it no power to regulate. True, the purpose of tariffs was to protect domestic industry from foreign competition, not raise revenue. But the Constitution grants Congress a plenary power to regulate commerce with other nations.

Congress also enacted a tax to destroy state bank notes in 1866, but this could be seen as a “necessary and proper” means to stop the states from usurping Congress’s monetary or currency power. It was upheld in Veazie Bank v. Fenno (1869).

The first unabashed use of the taxing power for regulatory purposes came when Congress enacted a tax on “oleomargarine” in 1886. Dairy farmers tried to drive this cheaper butter substitute from the market but could only get Congress to adopt a mild tax, based on the claim that margarine was often artificially colored and fraudulently sold as butter. President Grover Cleveland reluctantly signed the bill, saying that if he were convinced the revenue aspect was simply a pretext “to destroy . . . one industry of our people for the protection and benefit of another,” he would have vetoed it.

Congress imposed another tax on margarine in 1902, which the Supreme Court upheld (U.S. v. McCray, 1904). Three justices dissented, but without writing an opinion.

Then, in 1914, Congress imposed taxes on druggists’ sales of opiates as a way to regulate their use. Five years later, in U.S. v. Doremus , the Supreme Court upheld the levy under Congress’s express power to impose excise taxes.

Then, in 1922, the court rejected Congress’s attempt to prohibit child labor by imposing a tax on companies that employed children. An earlier attempt to accomplish this, by prohibiting the interstate shipment of goods made by child labor, was struck down as unconstitutional—since it was understood since the earliest days of the republic that Congress had the power to regulate commerce but not manufacturing. “A Court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed,” Chief Justice William Howard Taft wrote in Bailey v. Drexel Furniture Co. “Its prohibitory and regulatory effect and purpose are palpable.” Even liberal justices Oliver Wendell Holmes and Louis D. Brandeis concurred in Taft’s opinion.

Things came to a head in the New Deal, when Congress imposed a tax on food and fiber processors and used those tax dollars to provide benefits to farmers. Though in U.S. v. Butler (1936) the court adopted a more expansive view of the taxing power—allowing Congress to tax and spend for the “general welfare” beyond the powers specifically enumerated in the Constitution—it still held the ends had to be “general” and not transfer payments from one group to another. After President Franklin D. Roosevelt threatened to “pack” the Supreme Court in 1937, it accepted such transfer payments in Mulford v. Smith (1939), so long as the taxes were paid into the general treasury and not earmarked for farmers.

And now, in 2012, Justice Roberts has confirmed that there are no limits to regulatory taxation as long as the revenue is deposited in the U.S. Treasury.

Are there any other limits? Article I, Section 2 says that “direct taxes shall be apportioned among the states” according to population. This is repeated in Article I, Section 9, which says that “no capitation, or other direct tax, shall be laid,” unless apportioned.

The Supreme Court struck down income taxes in 1895 (Pollock v. Farmers’ Loan & Trust Co.), on the ground that they were “direct” taxes but not apportioned by population. Apportioning an income tax would defeat the purpose of the relatively poorer Southern and Western states, who wanted the relatively richer states of the Northeast to pay the bulk of the tax. The 16th Amendment gave Congress the power to tax incomes without apportionment.

Other direct taxes should presumably have to be apportioned according to the Constitution. Justice Roberts quickly dismissed the notion that the individual mandate penalty-tax is not a direct tax “under this Court’s precedents.” To any sentient adult, it looks like a “capitation” or head tax, imposed upon individuals directly. Unfortunately, having plenty of other reasons to object to ObamaCare, the four dissenting justices in NFIB v. Sebelius did not explore this point.

Some conservatives have cheered that part of Justice Roberts’s decision that limits Congress’s Commerce Clause power. But an unlimited taxing power is equally dangerous to constitutional government.

Mr. Moreno is a professor of history at Hillsdale College and the author of “The American State from the Civil War to the New Deal,”

Explanation of the ObamaCare Ruling for the Non-lawyer

Faust:

Again, if you’re confused, you’re not alone.  The mandate is not a tax when Roberts doesn’t want it to be and it is a tax when he wants it to be.  That’s confounding enough.  But what’s worse is that nowhere in the opinion does he state what of the three types of taxes the mandate is.

Folks you might notice that this is exactly what we said a few hours after the ruling came out LINK. To see part II of Faust’s excellent explanation of the ruling HERE – Editor

 

 

By Jason Faust Attorney at Law:

There were four issues presented for a ruling to the Supreme Court in the Obamacare case:

  1. Whether the Anti-Injunction Act precluded the Court from even hearing the case in the first place.
  2. Whether the individual mandate was a constitutional exercise of Congress’ power.
  3. Whether it was constitutional for the federal government to withhold all Medicaid funds from states which refused to comply with the ACA’s expansion of Medicaid.
  4. If any provision of the Affordable Care Act (ACA) was unconstitutional, could it be severed from the rest of the Act or must that make the entire Act unconstitutional?

Each issue will be analyzed separately.  This article will discuss the first two issues presented.  A soon-to-follow article will discuss the second two issues presented as well as a discussion of what this means in practical terms.

The Supreme Court ruled that the “penalty” in 26 U.S.C. Section 5000A (the individual mandate) is NOT a tax for purposes of the Anti-Injunction Act.

As the Supreme Court explained, “The Anti-Injunction Act provides that ‘no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,’ 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund.”  In other words, one cannot sue to prevent the imposition of tax unless and until that tax has already been levied against an individual.  Only after the tax is levied and paid can an individual sue the government for a refund of the tax on the grounds that the tax is an invalid use of Congress’ taxing power.  So, if the so-called “Free-Rider” provision of the ACA is in fact a tax, then any challenges to it would be premature pursuant to the Anti-Injunction Act because the “tax” in the ACA would not be levied against anyone until 2014 (Section 5000A, which contains the penalty/tax provision, does not go into effect until 2014).  Therefore, any lawsuit would have been dismissed because the issue would not have been what is known as “ripe for adjudication” – that is, the plaintiff has not suffered harm or an injury and, consequently, has no standing to bring the suit (the issue of standing is explained in the next paragraph).  Thus, it was necessary to determine the issue of whether the individual mandate was a tax or a penalty because if it were a tax, the Supreme Court would never have had a chance to rule on the other issues presented in the lawsuit.

A little background regarding the types of cases the federal courts (including the Supreme Court) can hear is necessary to understanding why the ruling on the Anti-Injunction Act was necessary.  There are several requirements which must be met in order for a case to be heard in federal court.  Preliminarily, the party bringing the lawsuit must have what is known as “standing” (a requirement set forth in Article III, Section 2, Clause 1 of the United States Constitution).  In order to have standing: there must be what is called a “case on controversy” between the parties; the plaintiff must have been actually harmed or injured in some way; and the harm or injury suffered by the plaintiff must be capable of being redressed by the adjudication of the claims set forth in the lawsuit.  The purpose of having these requirements is to prevent the federal courts from rendering what are known as “advisory opinions,” that is, opinions on how a lawsuit would turn out if it were to be brought.  By limiting the cases which can be heard to cases in which the plaintiff meets these standing requirements, the number of cases heard in federal courts is reduced dramatically.  (If there were no standing requirements, anybody could theoretically sue anybody else for anything, regardless of whether they were even affected by it.)  The courts exist to settle disputes, so it makes sense there be an actual dispute before the court issues a ruling on the matter.

The Supreme Court (correctly, in my opinion) ruled that the individual mandate was NOT a tax for purposes of the Anti-Injunction Act.  Because the mandate was not a tax, the Anti-Injunction Act did not prevent the Supreme Court from hearing and ruling on the rest of the issues in the case.  This is the reason Part II of Roberts’ opinion (beginning on page nine) opens with the line, “[b]efore turning to the merits [of the case], we need to be sure we have the authority to do so.”  After discussing the arguments for and against the penalty provisions being considered a tax for the purposes of the Anti-Injunction Act, Roberts explained (and the court held), “the Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.”  It is extremely important to note here that Roberts specifically rejected the notion that because the penalty functions as a tax, it should be treated as such for purposes of the Anti-Injunction Act.  (It will become obvious why after reading Roberts’ decision on the constitutionality of the individual mandate).  The analysis literally turned on whether the ACA referred to the penalty as a tax.  Because it did not, the Court held the Anti-Injunction Act did not apply.

To sum up this section: The Anti-Injunction Act was found to be inapplicable because even though the Court said the penalty functions as a tax, it is not a tax for purposes of whether the Anti-Injunction Act applied because the ACA does not refer to the penalty as a tax.  Thus, the suit was able to proceed on the merits.

The Supreme Court Ruled that the “penalty” in 26 U.S.C. 5000A IS tax for purposes of whether the mandate is constitutional.

The most important yet illogical portion of the opinion involves the constitutionality of the individual mandate.  The individual mandate found in the ACA provides that every individual must either purchase health insurance or pay what the ACA calls a penalty.  The main argument set forth (by the government and most liberals) was that the mandate is constitutional under Congress’ power to regulate interstate commerce, which is found in Article I, Section 8, Clause 3 (also known as the “Commerce Clause”).  The Commerce Clause reads in its entirety: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  This clause has been used to promulgate all sorts of federal legislation because various Supreme Court decisions have held that Congress has the power to regulate virtually anything which, in the aggregate, has a substantial impact on interstate commerce.  Interstate commerce is exactly that: commerce that crosses state lines.  Because pretty much anything can be argued to affect interstate commerce, this power of Congress has gone largely unchecked.  In one absurdly backwards decision in the 1940s, the Supreme Court even went so far as to say that a farmer who grew his own wheat for his own consumption could be regulated because by not purchasing wheat on the open market, he was affecting interstate commerce.  If that seems nonsensical to you, don’t worry – you’re not alone.  The key takeaway from the wheat farmer case – as expansive and egregious as it was – is that the government’s power to regulate activity is nearly all-encompassing.  However, it crucial to keep in mind that even in such an overreaching case, the government was only able to regulate the wheat farmer’s actual activity.  It was not trying to regulate his inactivity.  In fact, the government had never before tried regulating inactivity – that is, regulating individuals for not acting.  In light of this, it seems rather curious that liberals so forcefully believed and argued that the commerce clause gave Congress the constitutional authority to enact the individual mandate.

Predictably, the four liberals on the Supreme Court (Elena Kagan, Sonia Sotomayor, Ruth Bader-Ginsburg, and Stephen Breyer) accepted the notion that commerce clause gave Congress the power to enact the individual mandate.  Thankfully, the other five justices (John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy) refused to follow suit and rejected such a frivolous argument.  If they had chosen to go along with the Court’s liberal bloc, it would have been the greatest expansion of Congressional power ever realized.  If the Court held that the government has the power to force individuals to act when they do not want to act, then there literally would nothing that the government could not do.  That should have been the end of the individual mandate.  However, there were two other arguments given in support of the individual mandate’s constitutionality: the Necessary and Proper Clause; and Congress’ taxing power.

The Necessary and Proper Clause is found in Article I, Section 8, Clause 18, and states: “[The Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  In other words, Congress has the constitutional authority to enact all laws which are necessary to execute its specifically enumerated powers (as set forth in the rest of the Constitution).  This argument was specious at best and was not accepted by the Court’s majority.  Further exploration of the necessary and proper clause does not add to one’s understanding of the Obamacare ruling and it is not necessary to go into any further detail on this particular argument because it was rejected by the Court.

The third (and least viable) argument for upholding the individual mandate is that it is allowable under Congress’ taxing power.  As the dissent pointed out, this argument was rejected by every single court which heard the case.  For reasons still being theorized, Chief Justice Roberts upheld the constitutionality of the individual mandate on the basis that it was a valid exercise of Congress’ power to “lay and collect taxes” (a power enumerated in Article 1, Section 8, Clause 1).  Again, some background is necessary to understand why this is such a puzzling move.  Congress only has the power to “lay and collect taxes” in one of three ways: capitation tax, which is essentially a “head tax,” or a tax levied upon an individual simply for existing (this is such an obscure element of the Constitution and one wrought with so much confusion that Congress hasn’t tried enacting such a tax); excise tax, which is a tax for purchasing a good or service (e.g., cigarette tax, gasoline tax – one can avoid the tax by simply refraining from purchasing the taxed good or service); and the income tax, which only became permissible when the 16th Amendment was ratified and specifically granted Congress the power to enact such a tax.  Again, these are the only sources of power with which Congress may impose taxes.

As previously mentioned, Roberts found that the individual mandate was a valid exercise of Congress’ taxing power.  In contorting logic, he ruled that the same individual mandate that was not a tax for purposes of the Anti-Injunction Act functioned as tax for constitutional purposes and therefore was indeed a tax, which he then said made the individual mandate constitutional.  Again, if you’re confused, you’re not alone.  The mandate is not a tax when Roberts doesn’t want it to be and it is a tax when he wants it to be.  That’s confounding enough.  But what’s worse is that nowhere in the opinion does he state what of the three types of taxes the mandate is.  As discussed in the previous paragraph, the tax imposed by Congress must be one of the three enumerated types.

To sum up this section: The individual mandate was held to be a constitutional exercise of Congress’ taxing power even though Roberts never explains which of the three permissible taxes it is.  The other arguments made in favor of upholding the law’s constitutionality (the commerce clause and the necessary and proper clause) were rejected by a majority of the Court.

See part II of Faust’s excellent explanation of the ruling HERE.

Megyn Kelly Calls Out Obama: Your lawyer called it a tax in court and now your campaign people are lying about it (video)

Obama and the Democrat Party leadership after saying it was not a tax, directed their lawyers in court to argue that it is a legal tax and now the Obama campaign is saying that they never said it was a tax and that the SDupreme Court got it wrong when they agreed wih the argument form Obama’s own lawyer.

[Actually there are 21 new taxes in ObamaCare several of which target the chronically ill and disabled – LINKLINKLINKEditor]

Curt Levey: Top 10 Lessons from the Roberts Obamacare Ruling

This is a critically important piece for many reasons. Read every last word.

Curt Levey:

#1: The charge that the Roberts Court is a right-of-center court has been proven wrong in dramatic fashion. 

It’s not just the ObamaCare decision that can be characterized as liberal. In this term alone, the Court invalidated most of the Arizona immigration law, declared mandatory life-without-parole sentences for juveniles unconstitutional, invalidated FCC fines for fleeting expletives and brief nudity, and broadened protections for criminal defendants in cases involving both search and seizure and ineffective assistance of counsel.

#2: Five is not enough.

It’s no fluke that one or more of the five center-right Justices deeply disappointed conservatives three times in just the last few days.  It’s clear that five center-right Justices on the Court will never be enough to substantially advance the law in a conservative direction. Unlike the Democratic appointees on the Court, who can be counted on to vote the progressive way when the stakes are high, Republican appointees – no matter how carefully selected – cannot be counted on to consistently uphold conservative principles.

#3: Though the immediate impact of the decision was a stunning defeat for conservatives, the larger cause of constitutional federalism was advanced.

As legal precedent, the ObamaCare decision strengthens the Constitution’s protection of state sovereignty and its limits on Congress’s power under the Commerce, Spending, and Necessary & Proper clauses.  Quin Hillyer concludes that:

“[S]even of nine justices … finding that the Medicaid provision amounts to an unconstitutional coercion of the states … combined with the majority in favor of limiting the reach of the Commerce Clause, effectively means that the left lost far more than it won in terms of lasting legal precedent.”

Justice Ginsburg charged that “The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy.”  Let’s hope so.  In any case, now that it “will be hard … to criticize the John Roberts Supreme Court … as partisan” – in the words of liberal Supreme Court litigator and observer Tom Goldstein – it will also be hard to criticize the newly limited reading of the Commerce Clause as out of the mainstream.

#4: Obama and company’s attempt to cow the Supreme Court succeeded.

Harvard Law School Professor Noah Feldman writes that:

“Roberts knew the consequences of striking down the individual mandate: He would have been attacked by the president and the news media as the chief of the most activist conservative court since the 1930s.”

One way or another, the pressure apparently got to Roberts. Professor Lawrence Solum of Georgetown Law expresses the conclusion of many that language in the four-Justice dissent “is highly suggestive of a majority opinion.  …  This suggests that Justice Roberts switched his vote.”

This problem is nothing new.  Moderately conservative appointees to the Court often drift to the left over time. I chalk it up to them caring too much about their reviews in the Washington Post.

#5: The bullet ObamaCare dodged was more deadly than imagined.

The conventional wisdom was that if the individual mandate were declared unconstitutional, only the mandate and two related provisions would be struck down, saving the rest of the statute.  Instead, each of the  four Justices who found the mandate unconstitutional voted to strike down the entire statute.  But for Roberts’s surprise vote, that would have been the holding of the Court, exceeding the hopes of ObamaCare’s opponents.

#6: Roberts’s opinion was judicial activism at its worst.

Those who say the Chief Justice saved the Court from being branded a bunch of right wing activists are at least half wrong.  Roberts’ logical contortions – going so far as to conclude that the individual mandate was simultaneously a tax and not a tax – invite charges of activism.

Even famed liberal law professor Alan Dershowitz concedes that, in order to achieve “a political compromise,” “Justice Roberts went out of his way to characterize the penalty for not buying insurance as a tax increase.” Such results-oriented judging, no matter its motive, is the hallmark of judicial activism.

I almost wish President Bush had appointed Barack Obama to the Supreme Court instead of Justice Roberts.  That would have given us a majority of five Justices willing to emphatically say that the mandate is not a tax

#7: Chief Justice Roberts will likely be best remembered for disappointing conservatives in the most important case of his judicial career.

Whether fair or unfair, the sentiments of many conservatives are summed up by the editors of National Review: “If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.”  Michael Walsh compares the Chief Justice’s surprise vote to Justice Owen Roberts’ famous switch, under pressure from President Franklin Roosevelt, that ushered in the era of virtually limitless federal power that continues to this day.  There can be no more damning comparison.

On the flipside, Roberts may enjoy the accolades he is getting from more progressive circles. But rest assured– those will last only until the next big Supreme Court decision that offends liberal sensitivities.

#8: The White House should not be celebrating.

The 2012 election will now be a referendum on ObamaCare both at the federal level, where repeal of ObamaCare will be determined, and at the state level, where the future of the now-optional Medicaid extension will be determined.  That’s not a good thing for President Obama, as indicated by his reticence about mentioning ObamaCare on the campaign trail. And that was before the individual mandate became a tax.

Michael Shear of the New York Times sums up the President’s problem:

“[T]he ruling also has the potential to re-energize the Tea Party movement .. and provide new political power to Mitt Romney’s pledge to repeal the law … Republicans eager to seize control of the Senate now have a renewed rallying cry in races across the country.”

#9: Don’t let the oral argument or talking heads fool you.

Early on, I and other attorneys were convinced that 1) Chief Justice Roberts, because of his minimalist tendencies, was as much a swing vote in the ObamaCare case as Justice Kennedy, 2) it would be very tempting for moderates on the Court to make the constitutional problem go away by calling the individual mandate a tax, and 3) the legal challenge to the Medicaid expansion was not being taken seriously enough because of the focus on the mandate. By the time I finished listening to the oral arguments in the Supreme Court and the talking heads on television, I had abandoned all three convictions.  I should have trusted my instincts.

#10: The meaning of the ObamaCare decision is yet to be determined.

The malleability of Supreme Court decisions is demonstrated by another landmark decision 34 years ago.  Allan Bakke sued the University of California over its use of minority preferences in admissions and won 5-4.  A single Justice, Lewis Powell, opined that a school’s interest in achieving intellectual diversity could justify using race as one of many diversity factors.  Supporters of affirmative action successfully spun the decision to mean that a majority of the Court supported the diversity rationale and that the rationale could justify huge racial preferences aimed at only skin-deep diversity.

Will the ObamaCare decision come to stand for the renewal of federalism principles or for upholding the biggest federal overreach in history?  That will be determined by the litigation and communications skills of federalism’s supporters and critics.

Curt Levey is a constitutional law attorney and President of the Committee for Justice in Washington, DC.

Juctice Scalia book: Landmark Supreme Court decision in 1942 expanded Commerce Clause “beyond all reason”

Since FDR’s court packing threat the Commerce Clause interpretation has gone off the deep end. Everyone who has studied law seriously knows that the “modern” expansionist view of the commerce clause started to become interpreted that way not because the court had a legal epiphany, but rather they feared the Democratic Party would pack the court with 18 or so new justices all of whom would be political hacks. These new interpretations that were done under duress took the entire notion of limited government and tossed it out the window. I am glad to see Justice Scalia come to this point of view.

NYT:

With a Supreme Court decision on the fate of President Obama’s health care law expected in the next two weeks, every wisp of a hint about the justices’ thinking is getting the scrutiny usually reserved for CAT scans.

Justice Antonin Scalia picked the right moment, then, to deliver more than 500 pages of hints, in a book to be published next week. He wrote it with Bryan A. Garner, and it is an overview and summation of the justice’s approach to making sense of statutes and the Constitution.

It is also studded with telling asides and intimations about past and future decisions.

Justice Scalia writes, for instance, that he has little use for a central precedent the Obama administration has cited to justify the health care law under the Constitution’s commerce clause, Wickard v. Filburn.

In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

That position is good evidence, particularly when coupled with Justice Scalia’s skeptical questioning at the arguments in the health care case in March, that the administration will not capture his vote.

Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here.” Some inconsistencies can be explained by respect for precedent, he writes, others “because wisdom has come late.”

“Worse still,” he writes, he “does not swear that the opinions that he joins or writes in the future will comply with what is written here,” for the first two reasons “or because a judge must remain open to persuasion by counsel.”

Mr. Garner, a prominent lexicographer and authority on usage, also collaborated with Justice Scalia on an earlier book, “Making Your Case: The Art of Persuading Judges.” He said the timing of the new one was happenstance.

Supreme Court Sides with Church 9-0 in Landmark First Amendment Ruling; Utterly Rejects Outrageous Govt Interference

The Obama Administration should listen loud and clear to this one, but will they? Not a chance….

 

The Becket Fund:

The Supreme Court decided its most important religious liberty case in twenty years,Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The government lost 9-nothing as the Court unanimously rejected its narrow view of religious liberty as “extreme,” “untenable” and “remarkable.”

The unanimous decision adopted the Becket Fund’s arguments, saying that religious groups should be free from government interference when they choose their leaders. The church, Hosanna-Tabor, was represented by The Becket Fund for Religious Liberty and Professor Douglas Laycock, University of Virginia Law School. For years, churches have relied on a “ministerial exception” which protects them from employment discrimination lawsuits by their ministers.

“The message of today’s opinion is clear: The government can’t tell a church who should be teaching its religious message,” said Luke Goodrich, Deputy National Litigation Director at The Becket Fund for Religious Liberty. “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

The Court rejected the government’s extremely narrow understanding of the constitutional protection for religious liberty, stating: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

“This is a huge win for religious liberty,” said Professor Doug Laycock.  “The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders.”

“It is amazing when a church from Redford, Michigan stands up for its rights and ends up going all the way to the Supreme Court,” said Reverend Paul Undlin of Hosanna Tabor. “Praise God for giving the Justices the wisdom to uphold the religious freedom enshrined in our Constitution!”

The Court found that the ministerial exception is rooted in both Religion Clauses—the Free Exercise and Establishment Clauses. Justice Thomas filed a concurring opinion.  Justice Alito joined by Justice Kagan also filed a concurring opinion.

“For six years I fought the government, sacrificing my practice and livelihood because I believed the government had no right to choose teachers for our small school,” says Deano Ware, local attorney for the church. “In the end, we showed up at the steps of the Supreme Court with our sling and stone, in the company of the Becket Fund and the greater community of faith, fought the government and won. This is a great day for all Americans of every of faith and all freedom-loving citizens.”

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund has a 17-year history of defending religious liberty for people of all faiths. Its attorneys are recognized as experts in the field of church-state law.

For more information, or to arrange an interview with one of the attorneys, please contact Emily Hardman, Communications Director, at ehardman@becketfund.org or call 202.349.7224.

Voter ID Law: James O’Keefe Reporter Offered Eric Holder’s Ballot! (video)

Eric Holder is President Obama’s Attorney General and he says that vote fraud is not a problem (hello he is part of the Chicago Machine) and that voter ID laws are not necessary…….

National Review:

Attorney General Eric Holder is a staunch opponent of laws requiring voters to show photo ID at the polls to improve ballot security. He calls them “unnecessary” and has blocked their implementation in Texas and South Carolina, citing the fear they would discriminate against minorities.

I wonder what Holder will think when he learns just how easy it was for someone to be offered his ballot just by mentioning his name in a Washington, D.C., polling place in Tuesday’s primaries.

Holder’s opposition to ID laws comes in spite of the Supreme Court’s 6–3 decision in 2008, authored by liberal Justice John Paul Stevens, that upheld the constitutionality of Indiana’s tough ID requirement. When groups sue to block photo-ID laws in court, they can’t seem to produce real-world examples of people who have actually been denied the right to vote. According to opinion polls, over 75 percent of Americans — including majorities of Hispanics and African-Americans — routinely support such laws.

One reason is that people know you can’t function in the modern world without showing ID — you can’t cash a check, travel by plane or even train, or rent a video without being asked for one. In fact, PJ Media recently proved that you can’t even enter the Justice Department in Washington without showing a photo ID. Average voters understand that it’s only common sense to require ID because of how easy it is for people to pretend they are someone else

Filmmaker James O’Keefe demonstrated just how easy it is on Tuesday when he dispatched an assistant to the Nebraska Avenue polling place in Washington where Attorney General Holder has been registered for the last 29 years. O’Keefe specializes in the same use of hidden cameras that was pioneered by the recently deceased Mike Wallace, who used the technique to devastating effect in exposing fraud in Medicare claims and consumer products on 60 Minutes. O’Keefe’s efforts helped expose the fraud-prone voter-registration group ACORN with his video stings, and has had great success demonstrating this year in New Hampshire, Vermont, and Minnesota just how easy it is to obtain a ballot by giving the name of a dead person who is still on the rolls. Indeed, a new study by the Pew Research Center found at least 1.8 million dead people are still registered to vote. They aren’t likely to complain if someone votes in their place.

In Washington, it was child’s play for O’Keefe to beat the system. O’Keefe’s assistant used a hidden camera to document his encounter with the election worker at Holder’s polling place:

Man: “Do you have an Eric Holder, 50th Street?

Poll worker: “Let me see here.”

Man: Xxxx 50th Street.

Poll Worker: Let’s see, Holder, Hol-t-e-r, or Hold-d-e-r?

Man: H-o-l-d-e-r.

Poll Worker: D-e-r. Okay.

Man: That’s the name.

Poll Worker: I do. Xxxx 50th Street NW. Okay. [Puts check next to name, indicating someone has shown up to vote.] Will you sign there . . .

Man: I actually forgot my ID.

Poll Worker: You don’t need it; it’s all right.

Man: I left it in the car.

Poll Worker: As long as you’re in here, and you’re on our list and that’s who you say you are, we’re okay.

Man: I would feel more comfortable if I go get my ID, is it all right if I go get it?

Poll Worker: Sure, go ahead.

Man: I’ll be back faster than you can say furious!

Poll Worker: We’re not going anywhere.

Note that O’Keefe’s assistant never identified himself as Eric Holder, so he was not illegally impersonating him.

Nor did he attempt to vote using the ballot that was offered him, or even to accept it. O’Keefe has been accused by liberals of committing voter fraud in his effort to expose just how slipshod the election systems of various no-ID-required states are, but lawyers say his methods avoid that issue. Moreover, he has only taped his encounters with election officials in jurisdictions that allow videotaping someone in public with only one party’s knowledge.

Read more HERE.

Thom Hartmann: Newt is right about the Supreme Court

Aside from the brief tangent into cookdom where Hartman says that Justices Scalia, Alito, and Thomas want the Supreme Court to run your lives, (actually in countless speeches they say that the court was never meant to be five of nine judges making decrees on how our society is run) this video is spot on and it is what I learned when I took Constitutional Law at IU under Judge Allen Sharp.

Thom Hartman:

I agree with Newt Gingrich. Not about politics, of course. But, Newt is right about the Supreme Court. And progressives should pay attention. On this, Gingrich agrees with former President Thomas Jefferson – and most of the other founders of this country. Let’s break it down. First, Newt’s assertion that the Congress can pass laws that limit the powers and behavior of the Supreme Court. The Constitution, in Section Two of Article Three which establishes the Judiciary, does give Congress the power to define and limit what the Supreme Court can and can’t do.

Here’s the exact language -“[T]he Supreme Court shall have appelate jurisdiction both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Yes, that’s what the Constitution says – in plain black and white. If Congress disagrees with – for example – the Citizens United decision, or the Bush v. Gore meeting – they can simply pass a law that says that the Supreme Court has overstepped its authority and that’s the end of that.

Why, you may ask, did the Founders write it this way? The answer is really simple. They wanted the greatest power to be closest to the people – and Congress is up for election every two years. It’s the body in our representative democratic republic that is closest to the people. It’s where they wanted most of the power, which is why it’s defined in Article One of the Constitution – the first among equals. As Thomas Jefferson wrote in an 1820 letter to Mr. Jarvis, who thought Supreme Court justices should have the power to strike down laws, “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy….The Constitution has erected no such single tribunal… I know of no safe depository of the ultimate powers of the society, but the people themselves.”

Please read the Constitution. Nowhere in it does it say that the Supreme Court can strike down laws passed by Congress and signed by the President. Nowhere. And for the first fourteen years of our Republic, the Court never even considered the idea. As Newt pointed out, Hamilton wrote in Federalist 78 -“[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever….It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.”

But in 1803, a hard-right-wing Chief Justice named John Marshall ruled, in a case named Marbury versus Madison, that the Supreme Court could strike down laws as unconstitutional. President Jefferson went apoplectic. He wrote that if that decision wasn’t challenged by Congress: “[T]hen indeed is our Constitution a complete felo de so [a suicide pact]. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please.” But Marshall and the Court backed down, somewhat. For the next twenty years, he never again ruled a law unconstitutional. He never again said that a few unelected Judges were the Kings of America, with nobody who had the power to undo their decisions. But that’s what Scalia and Thomas and Roberts and Alito want you to believe. They can make George W. Bush President, without any appeal. They can make money into speech, they can turn corporations into people, and the rest of us have no say in it.

And they’re wrong.

It’s not what the Constitution says. We don’t have kings in America, and it’s time to seriously debate and challenge the doctrine of Judicial Review – the claim by the Court itself that it has that power. Jefferson wrote – “The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution… I will say, that ‘against this every man should raise his voice,’ and, more, should uplift his arm.” Why? Because, Jefferson said, “For judges to usurp the powers of the legislature is unconstitutional judicial tyranny….One single object…will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation.” The power of We The People should be with the People and their elected officials, not 5 lawyers who have claimed the right to rule over every other branch of government.

Somebody tell Congress to wake up!

De Silva: Your privacy is regards to US v Jones (Govt GPS case)

Tamara De Silva:

At first blush United States v. Jones is an important victory for the Fourth Amendment because it reaffirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Court held that the Government’s planting of a GPS device onto a Jeep constituted a “search.” Antoine Jones, a nightclub owner, was convicted in Washington DC of dealing drugs. Much of the evidence used to obtain his conviction (2,000 pages to be exact) was procured from a GPS that had been planted to the bumper of his wife’s car.

The decision is important principally because it re-affirms an enormously important principle articulated by Justice Harlan in Katz v. United States, which states that the Fourth Amendment protects people not places and as such a person’s “reasonable expectation of privacy.” It was thought before cases like Katz that the Fourth Amendment’s protections extended to places…homes, private residences, etc (arising from the idea of trespass).

Yet the opinion itself is far more interesting than the ruling of the case because the Court’s dicta (outside the ruling on the matter at hand) raises some profound issues. The first of these is that it addresses how a person’s reasonable privacy expectations need to be defined by the Legislature in light of how technology has affected our lives. There has been a shift in the balance of power between the governed and the State.

Read more HERE!

NBC shows flagrant bias in ObamaCare story

Political Arena Editorial by Chuck Norton

 

A textbook example of media bias. The subtext of the story “smart conservatives agree with Obama” and they push that bias by presenting a partisan view as “the expert’s view”

You might be thinking “Now wait a minute, it was fair because they had Jay Sekulow on”. That sounds good but look at the story again. NBC has Jay Sekulow on for the 29 states opposing ObamaCare, but then they have the Maryland politician who advocates the Obama point of view which is that the commerce clause gives the government unlimited power to control our lives, err I mean the economy [because you cannot control the economy with out controlling people /wink wink, nod nod].

So we have one advocate from each side, OK that is fair so far, but then the “expert” is brought in. We know this because NBC put the word “expert” right under Tom Goldstein’s name. Of course Tom Goldstein has experience covering the court, but he is no more of an expert than Jay Sekulow or Mark Levin.  What they don’t tell you is that Tom Goldstein was a lawyer for Al Gore.

When NBC or an elite media outfit looks for a talking head they wish to present as “the experts”, they do not pick an expert at random and ask him “What do you think?”. They find a person they can present as an expert who will say exactly what they want said. This is a very common practice in news rooms all across the country.

Of course ObamaCare is unconstitutional. The Maryland politician says that everyone uses health care so the Commerce Clause covers it. Well everyone eats too, and everyone needs shelter, everyone needs clothes. So was it the intent of the Founding Fathers to have a government that is totally unlimited?  ObamaCare is unconstitutional because it takes the entire idea of limited government and tosses it right out the window. James Madison, the Father of the Constitution, addressed the idea of reinterpreting a clause in the Constitution to give the federal Government total power.

James Madison on the General Welfare Clause and limited government:

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.

So where did this crazy idea of a nearly unlimited Commerce Clause come from? Shortly before WWII FDR was not able to advance parts of his socialist progressive plan because the Supreme Court kept striking down laws his party was passing. So FDR threatened to add members to the Supreme Court using Article II of the Constitution to add perhaps a dozen seats to the Supreme Court all filled with cronies. In fear of this the Supreme Court capitulated ” and expanded the Commerce Clause in a way that had never been intended to please FDR. This became known as FDR’s court packing threat.

Flashback – Protesters with Former Obama Advisor Van Jones: “String Up Clarence Thomas” – “Revolution Now Like in Egypt”

[Flashback February 2011- these same occupy rent-a-protesters showing us their civility that they like to lecture Sarah Palin on.]

The elite media likes to tell you that the Tea Party are hateful racists, in spite of the fact that there is no good evidence to demonstrate that. However getting people to say these types of things at almost any left of center protest is easy (especially on most any college campus where there are plenty of unhinged Marxist professors and indoctrinated students in one place). I have seen it first hand as a former counter protester myself. What are the odds of seeing this on NBC News?

This group is called “Common Cause” and do I really have to state the obvious?… Yes they get money from George Soros.

Thanks to Andrew Brietbart for the footage.

The Kicker:

Common Cause is a nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.
The IRS considers them a 501(c)(3) tax-exempt public charity because they are “non-partisan” (non partisan my ear…), so yes indeed being tax exempt means that YOU help subsidize them.

Justice Scalia on “Originalism”

Great stuff!

California Lawyer:

Last October marked the 24th anniversary of Justice Antonin Scalia’s appointment to the U.S. Supreme Court. Well known for his sharp wit as well as his originalist approach to the Constitution, Justice Scalia consistently asks more questions during oral arguments and makes more comments than any other Supreme Court justice. And according to one study, he also gets the most laughs from those who come to watch these arguments. In September Justice Scalia spoke with UC Hastings law professor Calvin Massey.

Q. How would you characterize the role of the Supreme Court in American society, now that you’ve been a part of it for 24 years?
I think it’s a highly respected institution. It was when I came, and I don’t think I’ve destroyed it. I’ve been impressed that even when we come out with opinions that are highly unpopular or even highly—what should I say—emotion raising, the people accept them, as they should. The one that comes most to mind is the election case of Bush v. Gore. Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn’t important enough? And I think that the public ultimately realized that we had to take the case. … I was very, very proud of the way the Court’s reputation survived that, even though there are a lot of people who are probably still mad about it.

You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?
In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today’s society should not do anything that it considers cruel and unusual, it means nothing except, “To thine own self be true.”

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?
I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.

Should we ever pay attention to lawyers’ work product when it comes to constitutional decisions in foreign countries?
[Laughs.] Well, it depends. If you’re an originalist, of course not. What can France’s modern attitude toward the French constitution have to say about what the framers of the American Constitution meant? [But] if you’re an evolutionist, the world is your oyster.

You’ve sometimes expressed thoughts about the culture in which we live. For example, in Lee v. Weismanyou wrote that we indeed live in a vulgar age. What do you think accounts for our present civic vulgarity?
Gee, I don’t know. I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn’t behave that way. Who imagines this? Maybe here in California. I don’t know, you guys really talk this way?

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?
I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it’s not pizza. It’s very good, but … call it tomato pie or something. … I’m a traditionalist, what can I tell you?

Justice Scalia on “Originalism”

Great stuff!

California Lawyer:

Justice Scalia
Justice Scalia

Last October marked the 24th anniversary of Justice Antonin Scalia’s appointment to the U.S. Supreme Court. Well known for his sharp wit as well as his originalist approach to the Constitution, Justice Scalia consistently asks more questions during oral arguments and makes more comments than any other Supreme Court justice. And according to one study, he also gets the most laughs from those who come to watch these arguments. In September Justice Scalia spoke with UC Hastings law professor Calvin Massey.

Q. How would you characterize the role of the Supreme Court in American society, now that you’ve been a part of it for 24 years?
I think it’s a highly respected institution. It was when I came, and I don’t think I’ve destroyed it. I’ve been impressed that even when we come out with opinions that are highly unpopular or even highly—what should I say—emotion raising, the people accept them, as they should. The one that comes most to mind is the election case of Bush v. Gore. Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn’t important enough? And I think that the public ultimately realized that we had to take the case. … I was very, very proud of the way the Court’s reputation survived that, even though there are a lot of people who are probably still mad about it.

You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?
In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today’s society should not do anything that it considers cruel and unusual, it means nothing except, “To thine own self be true.”

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?
I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.

Should we ever pay attention to lawyers’ work product when it comes to constitutional decisions in foreign countries?
[Laughs.] Well, it depends. If you’re an originalist, of course not. What can France’s modern attitude toward the French constitution have to say about what the framers of the American Constitution meant? [But] if you’re an evolutionist, the world is your oyster.

You’ve sometimes expressed thoughts about the culture in which we live. For example, in Lee v. Weismanyou wrote that we indeed live in a vulgar age. What do you think accounts for our present civic vulgarity?
Gee, I don’t know. I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn’t behave that way. Who imagines this? Maybe here in California. I don’t know, you guys really talk this way?

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?
I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it’s not pizza. It’s very good, but … call it tomato pie or something. … I’m a traditionalist, what can I tell you?