Saturday, June 30, 2012

Still a BFD, Obama Loses

June 30, 2012
By William L. Gensert

The Supreme Court decision on the American Care Act is a loss for Barack Obama, despite how the president and his minions in the mainstream media will attempt to portray it.  They will insist on selling this as a win for Obama

Always classy, Obama himself has already tweeted, "Still a BFD."

When the Supreme Court declared the mandate a tax, it was in reality calling Barack Obama a liar -- not only for emphatically claiming that the mandate was not a tax when trying to convince citizens to back the legislation, but also for promising that his administration would never raise taxes on the middle class.  Remember, he said that "no family making less than $250,000 a year will see any form of tax increase." 

Instead, ObamaCare is the largest tax increase in the history of the nation...and it is a regressive tax.  After all, the 1% of Americans he rails against religiously already have health insurance.  Guess what: much of the burden of the cost of this legislation will be borne by families making less than $250,000.  But don't worry: Obama cares -- perhaps only for himself and his name in the history books, but he cares.

In the coming months, many people will begin to realize how much the survival of ObamaCare will cost them in additional taxes and higher insurance premiums.  All the Supreme Court has done, in upholding the president's destruction of medical care in America, is give another 100 million people a reason to despise Barack Obama and all he stands for.  Obama may claim to care, but I suspect that the American electorate on November 6 will come out in force to show the president and the world how much they actually care for him.

Another point has gone unmentioned.  After Ted Kennedy joined Mary Joe Kopechne in the afterlife, the ACA was passed with 51 votes in the Senate using reconciliation.  Reconciliation is a process restricting use of the filibuster with respect to legislation related to budget matters.  The mandate, now labeled a tax, is a revenue item that can be repealed with the same 51 votes.  The filibuster-proof 60 votes needed for repeal before the decision are no longer required. 

To quote Mike Franc, the Heritage Group's VP of Government Studies:
Now that the individual mandate has acquired the official constitutional status of a "tax", there is no longer any doubt that the Congress, and more specifically the Senate, can repeal it pursuant to the simple majority vote threshold available under the Budget Act's reconciliation process.
If people didn't like Barack Obama before, they are certainly not going to like him any better now.  Watching his brief announcement the day of the decision, it was clear that he could barely contain his jubilation.  The half-smile on his face almost looked too hard for him to control.  Apparently, to our president, it really is still a BFD. 

In the end, this seals defeat for Barack Obama, because it shows him to be a man who cares nothing for America, unless he can get his name on legislation and in the history books.  If it turns out badly in the end, it can be sold to the general public as a misinterpretation of what was originally the embodiment of his genius and transcendence.

At best, we are headed to a two-tiered system where the rich and well-insured get all the health care money can buy while the poor get only what ObamaCare decides is absolutely necessary. 

Today in America, even the sickest person who hobbles into the emergency room gets virtually the same care as the rich.  Thanks to ObamaCare, that will change.  No longer can a secretary with cancer get the same care as a politician with the same cancer.

The secretary will wait, perhaps for months, and then receive whatever a faceless, nameless board decides is the minimum care necessary, while the politician will get whatever advancements are available that he or his insurance company can afford. 

Since the decision also invalidated the financial penalty (Sorry, was it a penalty or a tax?) states would incur if they refused to expand Medicaid as told, many of the 30 million additional people ObamaCare claims to insure will never have the opportunity as states refuse the Medicaid expansion integral in increasing coverage.

So what does ObamaCare accomplish?  It ruined health care for the middle class and preserved and enshrined the advantages of health care for the rich, while eliminating and degrading care for the poor, increasing unemployment, and depressing economic development.  What a deal.

It's not that Chief Justice Roberts' argument that the mandate is constitutionally supportable as part of congressional power to tax is incorrect.  It's just that the mandate was sold as precisely not a tax, and the legislation is written in a way that makes it a penalty to not buy insurance.  Nowhere is "tax" mentioned. 
Roberts has a valid argument, but only if the legislation was written utilizing the power of taxation as the means by which to compel purchase of insurance, which it wasn't.  In any case, is the nation is now taxing inactivity?  When has an American incurred a tax for what he didn't do?  In an exploration of his inner Chávez, Obama should try to pass a law taxing people who don't vote for him.    

If it was meant to be a tax, the law should have been written that way and sold to the public that way.  The judiciary does not have the power to rewrite legislation after the fact, to make it more acceptable for constitutional affirmation.  Justices Kennedy, Thomas, Alito, and Scalia wrote in their dissent that "we cannot rewrite the statute to be what it is not." 

Yet that is exactly what Chief Justice Roberts did.  Perhaps he succumbed to the progressive bullying and did not want to hear the abuse that would have been heaped on him by Obama and his minions had he done the right thing.  But that is exactly what the Supreme Court is supposed to do: decide on the constitutionality of legislation as written.  Not twist logic into knots to find a way it should have been written in order for it to be constitutional.

In the end, Roberts justifies an abomination of a law by limiting congressional power with respect to the Commerce Clause.  Important though that may be, because it puts restrictions on what Congress can do, can't the same congressional overreach be accomplished now, except using taxation instead?  Don't vote for Barack, don't eat your broccoli...well, then, you have to pay.

A majority of Americans do not support this legislation and in fact want it repealed.  Does anyone think that the more people understand what it will cost them and their families, support will increase?  Yet that doesn't matter to Obama -- see the grin?

I think the lower threshold for repeal will come back to haunt proponents of the legislation.  In theory, a repeal of the ACA could be on the president's desk before November's election -- there are quite a few Senate Democrats up for re-election this year.  The 51-vote threshold for repeal is not an impossibility. 

This would force Barack Obama to explain why he supports the country's greatest tax increase of all time and how raising taxes on the middle class is now acceptable.  Will he still look like a winner then?

The Supreme Court decision hands the president's political opponents the perfect case for the November election.  Barack Obama is a liar, whose only policy seems to be to tax and spend.  Oh...and he managed to destroy health care in the process.

The president is right: this is a BFD.

American Thinker

Romney Team Talks Online Dominance: 'This Campaign Became a Cause'

29 Jun 2012 

 “Yesterday, this campaign became a cause.” That’s how Zac Moffatt, Digital Director for the Romney campaign, summed up June 28th, a day that saw Obamacare affirmed as the single largest middle class tax increase in the history of the country. Team Romney pulled in $4.6 million in a 24-hour period with an average donation of under $100; 33% of donations were under $25. Over 200 thousand unique visitors hit the Romney campaign site, with one in four making a donation.

“The Obama campaign brags about their 27 million Facebook followers, which they’ve been building for over six years,” Moffat said. Coming out of a contentious primary, Romney had only 2.1 million Facebook followers. “But even with those odds against us, we saw 494 thousand Facebook engagements in the past 24 hours and Obama only had 464 thousand.”

“We saw a lightning bolt of intensity,” said Lenny Alcivar, the campaign’s Online Rapid Response Director.

“In one day we beat the Obama campaign’s almost mythic online team with the power of the center right in America.”

According to the Romney campaign’s digital team, the overwhelming response came right after Gov. Romney’s remarks vowing to repeal Obamacare on day one of his presidency.

“Right after Mitt's speech, the torrent opened up," Moffatt confirmed. "Our Twitter hashtag, #FullRepeal, trended worldwide in 20 minutes and maintained as a trending topic all day.” By comparison, the Obama hashtag affirming support for Obamacare only trended for a couple hours and then disappeared from the online conversation.

Moffat said, “Yesterday was not about us, it was about the conservative movement. when Mitt spoke, his words merely crystallized that movement.”
When asked to respond to criticism of Gov. Romney’s messaging yesterday, Alcivar was quick to focus on Obama:
[S]ome folks may have wanted the governor to criticize the Supreme Court, we're not going to do that. There is no difference between Mitt’s message before or after the ruling. What changed is the intensity behind the message. We don't plan to deviate front the “repeal and replace” message.
The president essentially misled the Supreme Court. They are on the defensive for not calling this a tax so the onus is on the president.
When reminded President Obama emphasized Thursday that Romney had backed an individual mandate in Massachusetts, Alcivar maintained that it is the President who is on the defensive:
Our message has not changed. What works for states is not applicable to the federal government. The president trying to seize that message and getting the mainstream media to harp on that puts him in a tough position. He needs to obfuscate. [Obama Campaign Deputy Campaign Manager] Stephanie Cutter did a video today saying Obamacare is NOT a tax. It is up to the president to defend his signature achievement. We won't take the bait.
Moffat summed up the Romney campaign’s digital strategy with the kind of salty language common in conservative Twitter conversations: “We kicked the Democrats' ass in 2010 on line and we are continuing that success in 2012. The Obama online effort is a paper tiger and we showed that yesterday.”

Big Journalism

Romney Campaign: Drudge, Breitbart Leading Rise of Center-Right Media

29 Jun 2012

 Thursday's reaction to the Supreme Court decision on Obamacare was a textbook example of how the new media’s biggest players helped galvanize the center-right political movement. And it’s no surprise what website served as the catalyst for most of the energy: The Drudge Report. "Drudge is the single most powerful force in the media today,” said Zac Moffat, Digital Director of the Romney Campaign. Lenny Alcivar, campaign spokesman, agreed: “The Governor's simple message yesterday was, ‘If we want to repeal Obamacare, we have to replace the president.’ When Drudge highlighted that quote as a headline linked to the Weekly Standard, it began the unified message across the board on the center-right.” 

In an exclusive interview with Breitbart News, Moffat and Alcivar discussed how websites like Breitbart and Drudge influence the way their campaign receives and delivers the news.
Moffat revealed, “I have two windows constantly up on my screen all day long, Twitter and the Drudge Report.”

Alcivar, who took a leave from the groundbreaking and influential Hynes Communications to work for the Romney campaign, sees a major shift in how the media works:
When this election is over, one of the lessons that will be learned by the mainstream media is that they no longer have a toe-hold on how Americans receive their news. Never before - in a way that has taken Democrats off stride- have we seen the confluence of an aggressive online community, led by Breitbart, and an aggressive campaign team not willing to cede an inch of ground to Democrats. This combination has created a new political reality. We no longer allow the mainstream media to define the political realities in America. The rise of Breitbart, Drudge and others, combined with an aggressive Romney campaign is a powerful tool in the arsenal of the conservative movement.

If I talk to Breitbart about an issue, 1,000s more will hear our message than if we give a quote to one of the hill rags.
Moffat agrees. He points to hiring Patrick Hynes as online consultant along with Alcivar as an indication of how important Romney holds the new media. “Lenny and Patrick were our first hires after we wrapped up the nomination.”

Alcivar: “Mitt knew there was a need for something outside the traditional communications team to meet the growing online center right audience. We can be faster and more nimble than the traditional communications wing of a campaign.”

He pointed to the rapid response to the Supreme Court decision as an example of their ability to harness the energy of the conservative online community. “Yesterday was a microcosm of the online strategy of the campaign."

Citing John Nolte’s work exposing lies and hypocrisy in the mainstream media, Alcivar praised the efforts of Breitbart News in holding journalists accountable for their actions. “The senior White House correspondent for Politico is no longer there. The Romney camp didn't do that, it was Breitbart. It sends a big signal. That wouldn't have happened without Breitbart.“

“The governor will no longer allow the mainstream media to dictate the terms of this debate. This is just the beginning... We are witnessing the rise of the center right media.”

Big Journalism

ATF Talking Point: Terry's Death 'Exact Reason Why We Must Continue'

The ATF's public relations hoped to use Border Patrol Agent Brian Terry's death in Operation Fast and Furious to promote the bureau's work, a newly released document shows.

Senator Chuck Grassley and House oversight chairman Rep. Darrell Issa sent a letter Friday to the Inspector General at the Department of Justice. The focus of the letter is the potential for retaliation toward two Fast and Furious whistleblowers, but in the course of expressing their concerns, Grassley and Issa reference ATF talking points about the death of Agent Brian Terry. At least one of the talking points seems designed to capitalize on Terry's death as a reason to further the very investigation which put a weapon in the hands of his murderer.

The document, which is added as an attachment to the Grassley/Issa letter, is dated 1/12/11. It is stamped with the ATF official seal and contains a warning in the header "Not for Public Dissemination/For Internal Use Only." It shows that the ATF was concerned about the appearance of the gun walking operation and especially its connection to Agent Terry's murder. The memo offers sample questions which reporters might ask, including:
Border Patrol Agent Brian A. Terry was shot and killed after he and his team encountered several suspects near Rio Rico, Ariz. At least four suspects are in custody while one is still being pursued. Was a gun trafficked in this case used in the murder?
We understand that a firearm bought in connection with this ATF investigation was used to murder Border Patrol Agent Brian A. Terry. Can you please comment on this information?
To these sample questions the ATF provided four possible responses:
ANSWER: The death of Agent Terry in tragic and is a sad and dark day for all of law enforcement. We've lost one of our own. This is another example of the dangers faced by law enforcement every day across this country when pursuing these violent criminals.

ANSWER: Agent Terry's death is the exact reason why we must continue going after those who are determined to destroy the lives of so many innocent individuals in our communities by plying their illicit trade. For those who would say it is Mexico's problem, I say Agent Terry's death and all of those who have perished because of this violence prove that this challenge belongs to everyone.
ANSWER: The investigation into the murder of Agent Terry is active and ongoing. ATF has pledged its support and resources to bring to justice the perpetrators who are guilty of that crime. I won't say anything here today to jeopardize that investigation or the subsequent prosecution of those responsible for this terrible crime.
ANSWER: The murder of Agent Terry is a tragic loss that has been felt throughout the United States and underscores the dangers that law enforcement officers face every day. As the investigation continues into this heinous crime, our hearts go out to Agent Terry's family and his fellow Border Patrol Agents who continue to risk their lives to protect the citizens of our great Country.
The second answer above says Agent Terry's death is a "the exact reason" to support the ATF's gun trafficking  operations. But the Grassley/Issa letter reveals that the real motivation for the talking points was an email sent by Special Agent in Charge of the Phoenix field office to Scot Thomasson, Chief of the ATF's Public Affairs Division. The email dated January 11th reads, "Just heard Melson's coming for the Fast/Furious press conf on the 25th. I hope he realizes how politically charged Arizona is right now especially regarding gun issues, was that way even before the Tucson shooting." The "Tucson shooting" is a reference to the January 8th shooting spree by Jared Loughner which left six dead and more than a dozen injured including Rep. Gabrielle Giffords.

Putting a proper public face on Agent Terry's death is an effort the ATF began even before the congressional investigation into Fast and Furious. Given the months of stonewalling over claims DOJ was ignorant of the tactics used in the case and the more recent claims of executive privilege over documents related to the stonewalling, it's fair to say that effort is ongoing.

Big Government

Friday, June 29, 2012

The Chief Justice Done Good

June 29, 2012
By Dov Fischer

Chief Justice John Roberts has handed a remarkable victory to American conservatives by threading the judicial needle with perfect precision.  The initial disappointment collectively felt by Americans who had hoped for a Supreme Court ruling that would overturn Obamacare soon will be replaced, upon further reflection, by the excitement that will come with a fuller appreciation of what the Chief Justice has wrought.

First, almost completely unnoticed, the Chief Justice voted with his four conservative colleagues in drawing an unprecedented red line against Washington wielding the Constitution's Commerce Clause in the future to justify federal intrusion into the personal lives of Americans.  This decision will restrict American Presidents and future Congresses for a generation and more.

Until Thursday's decision, for more than 70 years, virtually every leading Supreme Court decision on the reach of the Commerce Clause has sided with federal intrusion.  Although there have been isolated exceptions -- e.g., United States v. Lopez, 514 U.S. 549 (1995) (limiting federal regulation regarding carrying guns near schools) and United States v. Morrison, 529 U.S. 598 (2000) (limiting power of the federal government to expand rights of women to sue attackers) -- the leading cases on the Commerce Clause, often relying on precedents like Wickard v. Filburn, 317 U.S. 111 (1942) (holding that Congress could prevent a person from growing wheat for his own personal consumption on his own private land), have held that the federal government can force Americans to do or not do, to buy or not buy, virtually anything if couched as an act to facilitate or regulate interstate commerce.  Wickard "always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence." (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting, at 3.)

It was this very line of Wickard-consistent Supreme Court opinions that served as the basis for a long line of lower federal courts, both district courts and federal appeals courts, choosing to uphold ObamaCare as that bill was tested through the judiciary.  However, with Chief Justice Roberts almost surreptitiously joining with Justices Scalia, Thomas, Alito, and Kennedy in ruling that ObamaCare is barred by the federal Commerce Clause, a new era has begun in Commerce Clause jurisprudence. 

Every liberal citation to Wickard will be countered by a conservative citing to Chief Justice Roberts's opinion: "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . . 

The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.  The Federal Government does not have the power to order people to buy health insurance. . . . The Federal Government does have the power to impose a tax on those without health insurance." (National Federation of Independent Business v. Sebelius, Slip op. at 3, 41-42, 44)

There is now a formal United States Supreme Court opinion on the books, overdue by nearly a century, holding that the federal government may not wield the Commerce Clause to impose on American citizens the obligation to buy health insurance or anything else we do not want.  An American cannot be compelled by federal mandate to eat or even to buy a proverbial stalk of broccoli. As a kosher consumer, the federal government cannot wield that clause to impose on me an obligation to purchase non-kosher food supplements. The rules guiding lower-court wrestling matches over federal power to invade Americans' private lives now have been reset remarkably by Chief Justice Roberts.  Few today notice what he has done.  Long after many of us are gone, this 5-4 opinion finally setting limits on the reach of the Commerce Clause will continue to affect American lives and protect private citizens from Washington's intrusions.

It is understandable that most Americans, who are not law school graduates, do not think in these terms, nor do most pundits outside the legal community who interpret news.  However, attorneys and certainly law professors get it.  We know what happened on Thursday.  It was subtle and below the radar, like a tsunami beginning in the middle of an ocean, still days away from the shore.  Only the trained insiders know what that rumbling will cause in the future.  This was a tsunami, finally giving us our first Supreme Court precedential holding in nearly a century that reins in the federal government's unbridled abuse of the Constitution's Commerce Clause.  And the liberals, excited as they understandably are by the temporary survival of ObamaCare, do not even realize what has happened to a pillar of their enterprise.  And that is fine.

Secondly, Chief Justice Roberts has punted the whole ninety yards, so to speak, with the expertise of a professional football kicker whose team has the ball on its own 8-yard-line, then punts ninety yards, pinning the other team on their own two-yard-line.  Had Chief Justice Roberts sided completely with his four conservative colleagues, Obamacare now would be off the political table for the November elections.  Obama would be campaigning and mobilizing his troops' passions, arguing an urgent need to reconfigure the Court.  Romney, by contrast, would be trying to mobilize passion for a lackluster campaign that is impelled legitimately by one crying urgency: jobs and the economy.  However, Romney is not gifted at bringing people to their feet, not for applauding and possibly not for voting.  He is competent, perhaps excellent, maybe even extraordinary -- but his blandness does not generate passion.

Jobs and the economy are critical issues, but tricky ones to explain.  The federal government effectively shades statistics by hiding the full destructive impact of Obama's economic programs.  People who cannot find work at the compensation level they need and for which they are qualified -- an enormous population subset we call the "under-compensated" -- nevertheless are counted as "employed" when they settle for jobs below their previous attained levels.  Meanwhile, when others give up hope and stop looking for work altogether, resigning themselves to failure and long-term unemployment, they are deemed by statisticians to have removed themselves from the work force, so are not counted among the unemployed.  We the more sophisticated observers of the political process understand these statistical anomalies.  We understand that statistics declaring American unemployment at 8.2% really are closer to 12% and even 14% when we factor-in the plight of the underemployed and those who have given up hope.

Unlike the unemployment issue, where statistics are obfuscated, Obamacare is a signature campaign issue.  It is clear, comprehensible, simple -- and despised.  It galvanized, even helped create, the Tea Party.  Passionate opposition against the law led to a convulsive November 2010 election that resulted in fabulous Republican gains and the worst "shellacking" experienced by any political party in the modern era.  Two years have passed since 2010, and ObamaCare was about to be removed as a campaign issue in November. 

Instead, even as he cast a powerful vote to rein in the Commerce Clause as our Founding Fathers intended for it to be applied against federal intrusiveness, Chief Justice Roberts returned Obamacare front-and-center back into the November elections debate.  Defining it for what it really is -- a new, enormous federal tax on at least four million Americans (Slip op. at 37) -- the Chief Justice has lobbed a fat hanging curveball for conservatives to clobber.  The ObamaCare tax does not apply to those who presently are untaxed, and it will not apply to the more wealthy, who will be excused because they carry health insurance anyway. Rather, the President who promised no new taxes against the middle class conclusively has been "outed" by the Chief Justice as having imposed the biggest tax on middle-class Americans in a generation. 

Third, the Chief Justice has shifted the spotlight back onto Congress, primarily focusing its glare on the Democrat-run U.S. Senate, only four months before the elections. Republicans rapidly will beat down ObamaCare in the House like a piñata at a children's party.  It is an easy target.  It is excessive and intrusive.  It is financially devastating, will cause employers to drop health coverage for their employees, and will force millions to lose their preferred doctors and instead to settle on government-supplied alternatives.  Seniors will find that $500 million in coverage has been sliced out of their Medicare.  Employers will continue resisting expanding their work forces and reviving the flagging labor market while the issue remains in flux, assuring stagnating unemployment numbers through November. 

Fourth, the Chief Justice, while permitting the federal government to offer states more money to expand their Medicaid rolls beyond their fiscal capabilities, joined with his four conservative colleagues in banning Washington from penalizing states that turn down the federal inducements to march towards bankruptcy. As a result, the working poor will find that the federal government, while taxing them to buy new health coverage, has been left without a mechanism to compel others to pay for the ObamaCare state insurance exchanges.  So the feds will have to pay for it in non-cooperating states that are more fiscally prudent.  Only more taxes can pay for those costs. 

So Congress has a massive new mess awaiting it, all as voters prepare to vote for a new Congress and for 33 United States Senate seats, 23 now held by Democrats and their two "independent" allies.  House Republicans solidly will vote symbolically to overturn the legislative monstrosity, and they will find endangered House Democrats breaking ranks with their leadership to vote with them.  Senate Democrats facing reelection will be caught in a vise.  Harry Reid will be trying desperately to prevent a vote on ObamaCare repeal from reaching the Senate floor, even as national news coverage focuses on the two national parties' conventions.  Obama's staff may be renting Greek or Roman columns, but the Republicans will be toppling the pillars of the failed Obama Presidency

This is going to be OK, even fun.  Just wait and see.  The Chief Justice done us good.

Dov Fischer, adjunct professor of law at Loyola Law School, is a columnist for several online magazines and is rabbi of Young Israel of Orange County.  He blogs at

American Thinker

Obamacare: 'Things are now up for Grabs'

June 29, 2012
By Clarice Feldman

"[I]n the 1980s, the political psychologist Philip E. Tetlock began systematically quizzing 284 political experts - most of whom were political science Ph.D.'s - on dozens of basic questions, like whether a country would go to war, leave NATO or change its boundaries or a political leader would remain in office. His book "Expert Political Judgment: How Good Is It? How Can We Know?" won the A.P.S.A.'s prize for the best book published on government, politics or international affairs.

Professor Tetlock's main finding? Chimps randomly throwing darts at the possible outcomes would have done almost as well as the experts."

You could pretty much say this about the Obamacare case. Hundreds of pages of  analysis and predictions and few if any reflected the final, rather surprising outcome: Four ,and potentially five justices  if one reads Roberts carefully, have for the first time since the FDR court recognized there are substantial limitations on the power of Congress to regulate behavior under the cloak of the Constitution's Commerce Clause and, just as significantly, seven justices determined that Congress cannot blackmail the states into accepting new federal programs by threatening to cut off funding  under existing programs should they refuse to accept the expanded programs.

(a) First looks at the opinion suggest the gloom of many conservatives is not warranted: The decision has much to commend it.

As a starter, Justice Roberts' statement:  " It is not our job to protect the people from the consequences of their political choices." is as clear a statement of conservative  thought about the Court's role as one might find in a Supreme Court case of recent vintage.

On the individual mandate, Roberts joined with the left wing of the Court and sustained it but only after finding it was not authorized by the Commerce Clause and was justified only if one considered it a tax on inactivity-in this case the failure to secure insurance.

Larry Solum explains why what might appear to be mere sophistry is far more significant:
Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law.  In the extraordinarily unlikely event that there had been a majority opinion authored by one of the four justices from the left wing of the Court, the decision would have cemented (at least for a time) the most common academic understanding of Congress's power under Article One of the Constitution.  Roughly, that understanding is that Congress has plenary legislative power, limited only by the carve outs created by the Supreme Court's decisions in Lopez and Morrison. [snip]
For many years, some legal scholars had advanced an alternative reading of the key cases uphold New Deal legislation.  On this alternative reading, the New Deal decisions were seen as representing the high water mark of federal power.  Although the New Deal represented a massive expansion of the role of the federal government, it actually left a huge amount of legislative power to the states.  On the alternative gestalt, the power of the federal government is limited to the enumerated powers in Section Eight of Article One, plus the New Deal additions.  These are huge, but not plenary and unlimited.
Today, it became clear that four of the Supreme Court's nine justices reject the academic consensus.  As Justice Kennedy states in his dissent joined by Scalia, Thomas, and Alito:
"In our view, the entire Act before us is invalid in its entirety."
The alternative gestalt is no longer an outlier, a theory endorsed by a few eccentric professors and one odd justice of the Supreme Court.  And because Justice Roberts believes that the mandate is not a valid exercise of the commerce clause (but is valid if interpreted as a tax), he has left open the possibility that there is a fifth justice who endorses the alternative gestalt.
We are only minutes into a long process of digesting the Health Care Decision.  But in my opinion, one thing is clear.  Things are now "up for grabs" in a way that no one anticipated when the saga of the constitutional challenge to the Affordable Care Act began.
Jay Cost, a political analyst I highly respect, follows suit: 
[I]f you were more concerned about the qualitative expansion in the power of the government that the  bill represented, it was definitely a win.
First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.
Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.
Politically, Obama will probably get a short-term boost from this, as the media will not be able to read between the lines and will declare him the winner. But the victory will be short-lived.
The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
Conservatives have a shot at getting the best of both worlds: having the Supreme Court use Obamacare as a way to limit federal power while also using the democratic process to overturn the law. I didn't think we could have one without the other, but now maybe we can. If Obama loses in November, that is...

(b) What Next?

The ball is now in the Republicans' court. They've already scheduled a repeal vote on July 11. Once before the Democrat-controlled Senate was able to scotch the effort by threat of filibuster. Had the mandate stood as mandate they could do so again. But now that it's a tax, it can be passed by a simple majority. And if it is, the president will be forced before the election to veto a repeal  of a law  a majority of the voters keep indicating they want repealed.

Every Democrat running in November will be forced to defend what amounts to the biggest tax increase-about $400 billion dollars-in American history, a tax largely levied against the young and the middle class who don't normally carry health insurance.

Professor Ann Althouse sets out the state of play for Obama and his party:
I have said repeatedly that Obama would be worse off if Obamacare were upheld, but what
I'm really seeing is how bad it is for him with the mandate declared a tax.
Remember the Democrats got the statute passed by insisting it was not a tax. Now, we learn it is only constitutional because it is a tax. That's got to hurt politically.
ADDED: Romney has at least 3 big arguments:
1. Obama imposed a huge new tax on working people.
2. Obama deceived the American people by saying it was not a tax, when it was.
3. The law made it look like money would go to insurance companies - in the form of new premiums - that would keep premiums low as the companies were required to take on people with pre-existing conditions, but now we find out that the money is really going to go to the federal government. [ADDED: So get ready for your premiums to spiral up and/or for insurance companies to be ruined.]
(c) In the end Republicans have a sharp new limitation on the expansion of federal power, and a very good political platform to run against the President and the Democrats, as  Erick Erickson notes:
It seems very, very clear to me in reviewing John Roberts' decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.
Did you really ever think Nancy Pelosi and Harry Reid and Barack Obama could outsmart and outplay Justice Roberts? Really?

American Thinker

Secret Wiretaps Implicate Holder's DOJ in 'Fast and Furious' Scandal

29 Jun 2012

 One day after the historic vote that held Attorney General Eric Holder to be in criminal contempt of Congress, Darrell Issa (R-CA) revealed details of secret wiretap applications from the Justice Department that implicates them even more in the “Fast and Furious” gunwalking scandal that resulted in the murder of a U.S. border patrol agent.   Issa submitted these details to the Congressional Record by submitting a letter to Elijah Cummings (D-MD). Cummings have denied any wiretap applications contained details that would have tipped off those in the know, according to Roll Call, but Issa’s letter suggests Holder and Cummings were not truthful about what was in the wiretap application, which was signed by some of the most senior officials in the Department of Justice.

According to Roll Call

The wiretap applications are under court seal, and releasing such information to the public would ordinarily be illegal. But Issa appears to be protected by the Speech or Debate Clause in the Constitution, which offers immunity for Congressional speech, especially on a chamber’s floor.

According to the letter, the wiretap applications contained a startling amount of detail about the operation, which would have tipped off anyone who read them closely about what tactics were being used.

Holder and Cummings have both maintained that the wiretap applications did not contain such details and that the applications were reviewed narrowly for probable cause, not for whether any investigatory tactics contained followed Justice Department policy.

The wiretap applications were signed by senior DOJ officials in the department’s criminal division, including Deputy Assistant Attorney General Jason Weinstein, Deputy Assistant Attorney General Kenneth Blanco and another official who is now deceased.

Roll Call further reported the “application included details such as how many guns specific suspects had purchased via straw purchasers and how many of those guns had been recovered in Mexico,” in addition to describing how “ATF officials watched guns bought by suspected straw purchasers but then ended their surveillance without interdicting the guns.”

Issa excoriated the DOJ's lack of oversight:
Although ATF was aware of these facts, no one was arrested, and ATF failed to even approach the straw purchasers. Upon learning these details through its review of this wiretap affidavit, senior Justice Department officials had a duty to stop this operation. Further, failure to do so was a violation of Justice Department policy.

The coverup is always worse than the crime, and the question at the heart of the Fast and Furious scandal has been what the Department Justice knew and when they knew it.

After Issa’s letter implicating the Department of Justice in the Fast and Furious scandal, those questions are about to get a lot more intense, pressure on Holder will increase, and the public’s demand for answers will intensify.

Now if only the mainstream media would do its job and put pressure on the DOJ, not the Congressmen investigating them.

Big Government

The Path to 50

29 Jun 2012

 With Chief Justice John Roberts’ unthinkable decision to uphold Obamacare yesterday, all focus now shifts to repeal for conservatives. In order to repeal Obamacare, two things must happen: Republicans must retake the White House, and they must retake the Senate.

Contrary to popular opinion, Republicans don’t need a 60-vote majority to ram through an Obamacare repeal – as Ken Klukowski pointed out yesterday, “The only way to stop Obamacare now is with a one-page repeal bill that must be passed by the House and Senate. Because it would reduce the deficit you can pass it with 51 votes as a reconciliation bill in the Senate; you don’t need 60 votes.”

Republicans currently have 47 seats in the Senate. They only have 10 Senate seats up for re-election, as opposed to Democrats’ 23. Essentially, Republicans need to shift three seats from the Democrats and hold their own in order to win repeal, since the VP is the tiebreaker – although that assumes homogenous Senate Republican support for repeal.

Republicans essentially have four vulnerable seats; Democrats have up to ten. The question is how the Obamacare decision will play into these races – if Obamacare is unpopular in these states, that will certainly cut in Republicans’ favor. One thing is clear: swing-state voters do not like Obamacare. First, the Republican toss-up races:

  • Maine: Olympia Snowe’s retirement came as a welcome surprise to many conservatives, but it leaves former Maine governor Angus King as the likely winner in that race. King is running as an independent, but he is clearly a Democrat. The Republican nominee in Maine is Secretary of State Charlie Summers, who is running more than 25 points back of King at this point.
  • Massachusetts: Scott Brown is running a neck and neck race with Fauxcahontas, Elizabeth Warren. Obamacare is popular in the state, thanks to citizens’ familiarity with Romneycare (even though Romneycare is destroying the state’s finances). The Obamacare decision will have little roll here.
  • Nevada: Dean Heller is up against Rep. Shelley Berkley. The race is tight, and Berkley has a history of problems with Congressional ethics. Current polls show Heller up narrowly over Berkley. Senate Majority Leader Harry Reid is pouring his resources into Berkley’s campaign. According to recent polls, just 34 percent of Nevadans thought that the Supreme Court should rule Obamacare Constitutional.
  • Indiana: The defeat of Richard Lugar in the Indiana primary has put this state in play. Polls show Mourdock and his opponent, Joe Donnelly, essentially tied. Obamacare is massively unpopular in the state; 57 percent of Indianans don’t like it.

So the prediction for Republicans it that they will lose Maine, and hold the other three. At the worst, Republicans will lose two seats of these four.

Now for the Democrats. And this should have Republicans licking their lips:

  • Hawaii: Daniel Akaka retired from his seat in this state, and former Republican Gov. Linda Lingle, who is quite popular, is running for the seat. Both Democratic possibilities, Mazie Hirono and Ed Case, poll well against Lingle – but the last polls done were back in January.
  • Missouri: Claire McCaskill is in serious trouble against whichever Republican emerges from a bruising primary in the state. She runs behind Sarah Steelman, John Brunner, and Todd Akin. And Obamacare is massively unpopular in the state.
  • Montana: Jon Tester is running into an uphill battle against Congressman Denny Rehberg – polls show him trailing by a small to moderate margin. While Tester is a big Obamacare advocate, there’s no polling data indicating which way Montana leans on the issue.
  • New Mexico: Sen. Jeff Bingaman has decided not to run for re-election, opening the door wide for a Republican challenger. But current polling data has Rep. Martin Heinrich (D) running a few points ahead of Heather Wilson. That polling data is at least three months old. Obamacare as a whole is not popular in the state, which will undoubtedly hurt Heinrich.
  • North Dakota: Sen. Kent Conrad isn’t running this time. That leaves Congressman Rick Berg (R) taking on Heidi Heitkamp in a very tight race – the polls have been bouncing back and forth between the two, although most of the polls showing Heitkamp competitive come from Democrat-leaning pollsters. A full 70 percent of North Dakotans didn’t support Obamacare. Heitkamp did.
  • Virginia: The latest polls have showed a bounce in support for Republican former Sen. George Allen; Tim Kaine, the former governor of the state, has dropped in support at the same time. They’re now running neck and neck. As with other swing states, Obamacare is not popular in Virginia.
  • Wisconsin: Former governor Tommy Thompson is destroying Tammy Baldwin (D) in the polls in Wisconsin; Scott Walker’s big win in the recall effort is a boost for Thompson as well. And Obamacare remains massively unpopular in the state – by a 2-to-1 margin, Wisconsinites thought it should be overturned by the Supreme Court.
  • Florida: Polls show that 50 percent of Floridians didn’t like the Obamacare decision. And Rep. Connie Mack (R) is running even with Sen. Bill Nelson in the latest polls. This could be a significant boost for Mack – although Obama’s immigration decision was popular in Florida, which could be an equal boost for Nelson.
  • Michigan: Senator Debbie Stabenow is running strong against Republican challenger Rep. Pete Hoekstra in current polling. Barring a major upswing for Hoekstra, Democrats will likely hold this seat – although Hoekstra may be able to ride Mitt Romney’s coattails, since Romney is running very strong in Michigan at present.
  • Ohio: Ohio’s one of the toughest races to call. Sen. Sherrod Brown (D) is running against Secretary of State and Republican up-and-comer Josh Mandel, and the polls have been vacillating wildly. Mandel was closing the gap in May polling, but dropped behind again in June, perhaps as a result of President Obama’s frequent campaign stops in the state. Nonetheless, Ohio doesn’t love Obamacare

The prediction: Republicans will pick up at least five seats from the Democrats. And with increased conservative excitement and turnout thanks to the fact that the Senate is the crucial battleground for Obamacare repeal, the numbers may be better than that.

So, if Republicans can hold two of their four vulnerable seats and take five from the Democrats, they’ll have 50 votes – and the prospective Romney vice president will be the tiebreaker. That will be a difficult task. Repeal of Obamacare will come down to the wire – and in these states, every call, every canvassing, every vote will count.

It’s up to these swing state Americans to decide whether we all move further down the path toward nationalization of health care. The opportunity is at hand to repeal Obamacare. It’s an opportunity we can’t afford to blow.

Big Government

Thursday, June 28, 2012

The Roberts Opinion: It's Not All Bad

 John Roberts is not a “traitor to his philosophy.” He is not a liberal. He is, above all else, a very strict originalist, and the Chief Justice of a Court that is acutely aware – and wary – of its role in politics.

Understand that his opinion, though certainly not ideal for the Right, contains more good news for conservatives in its pages than it does on its face.

So let’s take a look at his surprising opinion – the controlling opinion, as it’s called, which sets precedent and “say[s] what the law is,” as Marshall said so long ago.

The Good News

First: let’s give credit where it’s due. Roberts made it abundantly clear that he’s not a fan of the actual policy. Moreover, he shifted responsibility for this policy back to the American people, and revealed his respect for the separation of powers:
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Unhappy with the ruling though you may be, the wisdom contained in that paragraph alone ought to cheer you. And I promise, there’s more!

Now then. What hath he wrought?

“Commerce Clause” is everywhere in the news today, and if you’ll recall, that was considered the basis for both upholding and striking down the mandate. Roberts threw out the government’s argument that it could regulate inactivity because of the “substantial effect” abstention from the market would have on the market as a whole. This, he said, was way too much power:
“Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. […] Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.
Moreover, he created a new precedent in Commerce Clause jurisprudence that limits its scope significantly, by accepting the distinction between activity and inactivity. In so doing, he created a concrete definition of Federal power that will influence the way Congress makes law in the future, and the way the Court interprets future Commerce Clause cases. Here’s the key passage to that effect:
“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. […] The Government’s theory would erode those limits [on the Commerce Clause], permitting Congress to reach beyond the natural extent of its authority, ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ The Federalist No. 48, at 309 9 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.
It’s hard to see at first glance why we should celebrate this ruling, especially because it was evidently not enough for Roberts to overturn the mandate. But what Roberts did here was establish a defining limit on the Commerce Clause, which had heretofore not really existed. Congress is now restricted in its ability to use this very broad power, in that it cannot compel individuals to participate in the market. Consider, also, the wide array of tools at Congress’ disposal under the Commerce Clause to ensure compliance. Roberts has ruled that Congress can’t criminalize not buying something because of the effect abstention will have on the market. Indeed, that was at issue in this case; the fact that it’s unconstitutional is a win for liberty.

Furthermore, Roberts narrowed the definition of “substantially effects” to encompass activity that is already occurring, and curtailed Congress’ power to presuppose, and then regulate, activity.
“The proposition that congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. […] But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce.”
Now, think back to the time when constitutional challenges to the mandate first began to surface: every legal scholar worth his salt, conservative or liberal, believed the Court would kill the activity/inactivity distinction.

Yet that was the major victory the conservatives won in this case, and it’s now legal precedent. The mandate itself lives on, but Congress may never apply the full force of the U.S. government to compel anyone to make a purchase. This, the fight for the Commerce Clause, was the real war. And the right won it. Perhaps the fruit isn’t ripe yet, but it will prove juicy in time.

So now, to turn to the legal reasoning for why the mandate remains law. In other words…

The Bad News

Here’s Roberts: “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

You may keep your law, he says. But let me redefine it for you.

In the opinion, Roberts applies a test from an earlier case, Drexel Furniture, to determine whether the “penalty” meets all the requirements of a tax. It’s another long excerpt, but worth reading, as he’s very clear:
“The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance… Second, the individual mandate contains no scienter requirement [i.e. it’s not punitive for breaking the law]. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.”
So here’s how it’s going to work from now on: the mandate is now just the “tax on not having healthcare,” which I’m sure will get a snappier name in the coming days, something akin to the “gas tax,” or the “income tax,” which most of us pay. Roberts says as much:
“[A]ccording to the Government…the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”
So after he invalidated the Commerce Clause justification, he determined that really, the “penalty” doesn’t force participation in the market; hence, why he didn’t throw out the mandate with the Commerce logic. It’s not really forcing people into the market; after all, it didn’t criminalize not owning insurance. It just puts a tax on it, and Roberts notes that taxes are often used to induce certain behavior:
“But taxes that seek to influence conduct are nothing new. […] Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise money, but to encourage people to quit smoking. […] That Sec5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.
Frankly, this doesn’t look like an expansion of the taxing power. Perhaps he’s articulating more clearly the intent behind so-called “sin taxes,” and other behaviorally-motivated taxes, but he’s not handing Congress more power. He’s just explaining a power they already had, and use.

Remember—he never said it was good policy, and in fact made it clear that he feels otherwise. What he did was invalidate an unconstitutional argument in defense of the policy, thereby banning it from future use, and then uphold a bad, but not unconstitutional statute, because it adhered to a permissible exercise of power. Congress passed a tax, he says, and it’s a bad one, and he doesn’t like it, but that doesn’t make it impermissible.

So, is this what the right really wanted to hear? Heck no! We like the dissent, where the whole thing goes.

But Roberts is dumb like a fox, and it’s worth looking at the effects this ruling will have on the future, both near and far.

The Upshot

Over, and over, and over, President Obama assured us that this was not a tax. He was not raising taxes on the middle class (that’s what the Republicans were doing, remember?). Nope, says the CJ: ya raised our taxes. Politically, that’s going to prove troublesome for Obama this fall, and in a much more substantial way than having his “signature legislative accomplishment” overturned altogether.

For one, Roberts took away Obama’s ability to campaign against the Court. They upheld his law; he can’t do as he did after Citizens United and construe the ACA ruling as a massively political attack on the little guy and his uninsured plight. He has nothing to blame on the Justices. All they did was recharacterize the “penalty” as constitutional under the taxing power. Roberts robbed Obama of a scapegoat, and stuck Obama with an unpopular law in an election year. Ouch.

Second, Roberts has literally forced Obama to acknowledged that he broke a promise, and raised taxes. And tax increases don’t resonate well with the voters. Now, it’s doubtful Obama will assume responsibility for raising taxes – note that in his speech today, he didn’t acknowledge the Court’s reasoning for the ruling, only that they ruled in his favor. But the GOP has just added a major weapon to its arsenal: want to lower taxes? Then don’t reelect Obama.

This third observation is one that isn’t immediately eminent, but nonetheless just as important as those prior two, if not more so. Roberts has made it substantially easier to repeal Obamacare, and substantially harder to pass anything like it in the future. As noted above, Americans don’t like taxes. And thanks to the fact that many will opt to pay the tax rather than buy insurance (as that will cost less), the insurance problem in this country hasn’t been solved. The fact that we’ve settled the question of the mandate’s constitutionality means we can turn to the rest of the law, and address the flaws contained therein, and perhaps find a real solution to the healthcare crisis. As for future laws, Democrats lost the ability to hide behind “penalty” language. Roberts saw that the mandate waddled and quacked, and gave it the appropriate name. (He also forbade Congress from actually “mandating” anything, so that name isn’t even correct anymore.) The ACA barely passed the first time; future iterations of this theory are destined to fail, because Congress will have to stand up and say, “We propose to enact a new tax so as to influence your behavior.” If that isn’t the proverbial lead balloon, I don’t know what is.

So there you have it: it’s really not all bad. It’s not what we wanted, but then – as I suspect Obama will learn in the coming months – we must remember to be careful what we wish for.


Today's SCOTUS Decision Dooms Obama's Reelection

 Yes, Obama and the Democrats are entitled to a bit of a victory lap today, after Chief Justice Roberts searched deeply within his political self and found a path to uphold ObamaCare. Sure, the individual mandate was unconstitutional on the two arguments made by the Obama Administration. But, on the argument they expressly didn't make--that the mandate was really a tax--the Court decided that Congress was well within its power to enact the provision. So, its still the law of the land. But, today's ruling will probably go down in history as the most effective GOP voter turnout operation ever. There is only one way to repeal ObamaCare and that is through the ballot box. It will happen.  During the debates over ObamaCare, the President and
Democrats strained themselves to argue that the individual mandate wasn't a tax. Obama himself had campaigned on a promise to never raise taxes on any families earning less than $250,000 a year. Today, the Court called the mandate for what it is...a tax. In doing so, it acknowledged that not only did Obama break his campaign promise, but he and his leftist allies have ushered in the largest tax hike in history. They will go with that record into the voting booth in November. 

From a nakedly partisan viewpoint, today's ruling is the best case scenario for the GOP. ObamaCare is still deeply unpopular and now the only way to undo it is to sweep Obama and dozens of Democrats out of office. The GOP base will speed-up its rallying to Romney because it is their only chance to repeal this monstrosity. Independents, who have been peppered with silly social issue memes from the media, will put all of that aside to ensure that ObamaCare is repealed. 

Many of my colleagues are understandably upset with Chief Justice Roberts. But, he may have pulled off the ultimate Jedi Knight mind trick. He upheld the law by framing it as a tax, which runs counter to Obama's campaign promises. His opinion even provides a legal basis to restrain future federal power grabs.

Moreover, he has ensured that the only way to appeal the law is to prevail, across the board, in November.

That was ultimately always the case.

But, that awareness was implied. Now it is explicit. We have to run the tables in November to have any hope of maintaining our liberty. There is great clarity in knowing the stakes of a fight. Thanks to today's ruling, we have that now. 

Patriots around the country will now realize that there is no cavalry on the horizon. If we want to preserve our liberties, we will have to fight for it. Patriots and Independents now have a singular reason to show up at the polls in November. This focus will doom Obama's reelection campaign.

Today, I donated to a congressional candidate who is committed to repealing ObamaCare. What did you do?

Big Government

Wednesday, June 27, 2012

A Victory For Arizona

Imagine if the Supreme Court upheld the individual mandate in Affordable Care Act tomorrow, but for some reason found that minor provisions such as the tax on tanning salons or the requirement that chain restaurants display caloric content unconstitutional. There is no doubt that President Obama would consider the decisions a resounding victory for his bill. After all, the crux of the debate over the healthcare bill was the individual mandate. If a few provisions of the 2,000 page bill were overturned, no one would deny that the decision favored the Obama administration.

Yet when the Supreme Court upheld the centerpiece of Arizona’s SB 1070 in Arizona v. U.S., but overturned some minor provisions, President Obama, his allies, and even some conservatives think that decision was a blow against Arizona.

The biggest misconception is that the court overturned most of the bill. According to Senate Majority leader Harry Reid, “The Supreme Court was right to strike down the vast majority of the Arizona law. With three out of the four provisions being struck down, the ruling shows that the Obama administration was right to challenge this law.”

In fairness to Sen. Reid, it’s not just liberals making this mistake. Fox News reported that the Supreme Court “Struck down the Arizona law with the exception of one provision”.

These statements ignore that the most of the law was not even challenged at the Supreme Court. Although they struck down three of the four sections that were appealed to the Supreme Court, SB 1070 has 12 sections. The law banned sanctuary cities, strengthened enforcement against employers of illegal immigrants, and cracked down on human smugglers and illegal alien gang members. None of these measures were blocked at the district and appellate level, and the Supreme Court’s ruling does not change this.

Of course, from the very beginning, the most important and controversial aspect of SB 1070 was section 2(b) which requires local law enforcement to determine the immigration status of an individuals who they reasonably suspect to be here illegally that they lawfully encounter.

When I wrote and introduced SB 1070, I knew that this provision would be the teeth of SB 1070. I had heard too many stories of Americans who had been victims of violent crime by illegal immigrants who had previously been stopped by police, only to be set back loose on the streets.

In his criticizing of this bill, President Obama focused almost all his opposition towards this section. Obama famously suggested that old women taking their grandkids for ice cream will be forced to show their papers.

It is not just opponents of immigration enforcement who mistakenly claim that the bill is a defeat. House Judiciary Chairman Lamar Smith, who has long been one of the champions of immigration control in congress issued a press release stating that the “ruling essentially puts an end to immigration enforcement since the states no longer can step in and fill the void created by the Obama administration.”

While I usually agree with Rep. Smith, he's far off the mark here. Even if they had overturned the entire bill, last year the Court upheld the Legal Arizona Workers Act, which I also introduced, that mandated E-Verify in Chamber of Commerce v. Whiting. Without the threat of litigation, state legislators across the country will introduce laws that incorporate the Legal Arizona Workers Act and Section 2(b) and other parts of SB 1070 that have been found constitutional.

While I would have preferred for the Supreme Court to uphold all of SB 1070, their ruling on Monday was a resounding win for the state of Arizona and all Americans who support a state’s right to fight illegal immigration.


NBC Uses Che Guevara-Loving Illegal Immigration Activist to Denounce Arizona

 In a report on the recent Supreme Court decision reversing parts of Arizona's immigration law, NBC's Matt Taibbi gave extensive airtime to an activist for illegal immigration. The woman was shown sitting in a room prominently featuring a poster of Cuban communist, terrorist and murderer, Che Guevara, and among other activists wearing "Legalize Arizona" t-shirts. Yet NBC labeled this woman a mere housewife and mother without noting her status as essentially a lobbyist against America's immigration laws. Taibbi sympathetically portrayed Mrs. Leticia Ramirez as "a mother" who just happens to have "been in this country illegally for over a decade," and a woman just trying to be a good citizen.

Mrs. Ramirez, wearing an activist t-shirt that says "Arrest Arpaio, Not The People; End Police and ICE Collaboration," said she is worried that the Supreme Court decision will cause fear in her illegal community.
It's going to affect the whole community because they're not going to be able to go out, have a normal life. They're going to be afraid that if we go out they might – we might get stopped just for your color.
Of course, the fact is that laws governing immigration are supposed to do just that, make lawbreakers fear their status. Tougher laws are successful in making illegal entrants self deport. That is why they work.

Taibbi did include a few words from what he calls "supporters of 1070," granted, but the fact is he labels them as such while he never says a word about the activism of Mrs. Leticia Ramirez. She is presented as a suffering mother and wife, not the activist she is.

So an activist fighting to be allowed to break our laws is given the benign label of "mother" and "wife" while those hoping to strengthen our laws are labeled as "supporters" of a crack down that hurts poor mothers, children, and widows everywhere.

That's more Old Media "balance," I suppose.

Big Journalism

The End of Government's 'Truth Cartel'

 President Obama has had a bad June. You know that because the Democrats and the Left are already providing a laundry list of recriminations to explain a defeat in November: SuperPAC money, the European economy, a conservative Supreme Court, the Koch Brothers, the list goes on. But there’s another excuse that is also bubbling beneath the surface of Democratic finger-pointing: You, with all your access to limitless information, views, analyses, facts. As President Obama himself explained: “I am concerned that if the direction of the news is all blogosphere, all opinions, with no serious fact-checking, no serious attempts to put stories in context, that what you will end up getting is people shouting at each other across the void but not a lot of mutual understanding.”

And that was in 2009, when the president was at the height of his popularity. Imagine the denunciations that will spew from the Democratic spin machine if Obama loses. Fox News, bloggers, talk radio hosts, readers of this newspaper [BD1] – all of you contributed to president’s inability to find “mutual understanding” with the voters. On the surface, efforts to revive tyrannical policies like the “Fairness Doctrine” or the “Newspaper Revitalization Act” (the context for Obama’s remarks) are about ensuring Americans receive the best news and information, not just one-sided spin.

But that’s always been a cover. Central planners fear our new media age – where the information is unfiltered and easily accessible – because it makes their job harder, if not impossible. Not only does the abundance of media outlets increase the amount of information we can consume, but it changes the way we engage with each other as well.  The new paradigm is a rowdy, decentralized model of exchange in which news consumers bypass the gatekeepers to share facts and opinions directly with each other on a grassroots level. 

Media used to exist in a top-down system where only a small few individuals produced the media outlets we watched and read. Walter Cronkite, anchorman for CBS Evening News, told an entire generation what to think.  Truth came in a one-size-fits-all package, and was allocated to the public twice daily, with delivery of the morning paper and the start of the six o’clock news. An individual’s only recourse if he wanted a different set of data was to switch channels to the strikingly similar versions of truth offered by ABC and NBC.

Not surprisingly, the heavy hand of government played a key role in propping up this “truth cartel.” From the earliest years of radio, the Federal Communications Commission not only seized control over the airwaves, but radio and television markets as well.  Because broadcasters were federally created monopolists, regulators dominating stations could impose rules that would control broadcast ownership, reach, and most importantly content. Democrats might call themselves “progressives” but they pine for Roaring ‘20s.

Now, the media is bottom-up. Stories begin with the pajama-clad blogger, the girl with the camera phone, or the “amateur” journalist asking his betters the tough questions. The Old Media once tried to ignore these party crashers, but not any longer. What we watch on the evening news we’ve likely already seen on our Facebook or Twitter feed.

The liberating power of social media and a decentralized open-ended online discovery process is integral to the story about the emergence of the Tea Party movement.  Before the information revolution, we needed centralized parties to find candidates, raise money, buy ads, craft messaging, and organize supporters.  Now we can do all that for ourselves.  The people can connect directly with one another, through various social media tools and networks. Groups are able to mobilize themselves by gaining information quicker, sharing with others, and sparking their message across many venues.

The reality is that these new media venues are growing at a pace that bureaucrats find threatening.  Nothing irritates a central-planning bureaucrat more than an unpredictable public. If government loses control over the media outlets we engage in, they no longer retain control over how we think, respond, vote, engage, and share.  A loss of centralized control means no longer can the government decide what is best for society.

As Thomas Jefferson foreshadowed in a letter in 1789, “wherever the people are well informed they can be trusted with their own government.”  The Jeffersonian ideal is finally upon us, and it’s driving Washington’s central planners nuts.

Big Government