Affirmative Action Dead(er)

I told you last year (LINK) that affirmative action is dead. And so it remains. Well, not technically, but practically. Yesterday, the Supreme Court gave permission to remove the corpse. Let’s discuss.

In June of last year, I told you about the Fischer v. University of Texas case. That case involved a white student who sought admission to UT but ran into their admissions policies which favored minority students. She sued claiming discrimination in violation of the 14th Amendment’s Equal Protection clause.

She lost at the lower levels with the Fifth Circuit Court of Appeals pointing to the Supreme Court’s decision in Grutter v. Bollinger which allows colleges to use race “as one of many plus factors” in admissions decisions. According to Grutter, colleges cannot set aside places by race, but they can grant minorities extra points for their race provided that race is one of many different “plus” factors that can be awarded AND provided that race is not the predominant deciding factor.

That’s stupid, however. This “you can consider it, but you can’t base your decision on it” works out logically to X is true, but just not THAT true, and logically speaking, that’s nonsense. Morally speaking, this is nonsense as well. Either the use of race is acceptable or it is not. If it is acceptable then there is no reason to disallow its use. If it’s not acceptable, then it should not be allowed at all. And this attempt to allow its use, but not in any meaningful way, straddles the morality in such a way as to offend both sides.

Anyway, the Supreme Court was expected to use the Texas case to strike down affirmative action or to give it new life. They didn’t quite do either, however, and the result was that everyone in the media described the Supreme Court as “punting” on the issue of affirmative action.

Only, they hadn’t punted at all.

As I explained, the simps had misinterpreted the decision. What the Supremes held was that Texas, i.e. the state, bears the burden of proving both a “compelling state interest” in ensuring diversity at their schools AND that their method for achieving that goal of diversity is “narrowly tailored.” This is the standard “strict scrutiny” test for laws that violate fundamental rights like equal protection, and it’s hard to win.

In the Texas case, the action occurred in the second part of the test: the narrow tailoring. The Supreme Court held that Texas needed to show that under its plan to increase diversity, each applicant was still evaluated as an individual and not in a way that made an applicant’s race into the defining feature of their application. To do this, the Court held that Texas needed to prove that is it “necessary” for Texas to use race to achieve the educational benefits of diversity. “Necessary” in this case means this: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity.”

Bang! In other words, the school must show that it could not have generated diversity in any other way.

This was a death sentence for college affirmative action because there is no way to ever prove that race-based admissions are necessary. In fact, fearing the loss of affirmation action, schools everywhere found other ways to ensure diversity and thereby proved that race itself need never be a factor. That meant the Supreme Court ruling allowed affirmative action but only if you can pass an impossible test to demonstrate your need for it. Some punt.

Well, now the Supreme Court has “punted” again on affirmative action. This time, the issue involves a voter-backed initiative in Michigan which changed the Michigan constitution to prevent the state from using race as a factor in college admissions. Conservatives hoped the Supremes would strike down affirmative action. Liberals hoped the Supremes would call it a constitutional right and strike down any attempt by the public to end it. The Supremes did neither.

In a 6-2 ruling, the Supremes refused to strike down affirmative action in principle, but they held that nothing in the Constitution disallowed the voters in a state choosing to ban it in their state. So nothing changes?

Not quite.

The key to get out of this case is that affirmative action is not a right. If the Court believed that you had a right to affirmative action, then it would have followed its own lead in the gay cases where the Court struck down preemptive attempts to ban gay rights legislation. The Court didn’t apply those, however, and that means affirmative action isn’t a right protected by the constitution. Basically, affirmative action is just another goodie that you can vote on.

So what does that mean? It means that the states are now free to wipe it out without federal courts having the ability to question the state for doing so. The Congress can do this too. In effect, the Supreme Court has said, “Yes, we allow Affirmative Action, but we don't require it, so go ahead and wipe it off the map if you like.” And, adding the prior case, “if you do intend to keep it, then be prepared to prove that race preference was the only possible way to achieve your goal.” That's a death sentence.

So why not just wipe it out? Because this is a savvy way for the Court to kill something without putting their fingerprints on the murder weapon. If you ask them, they will swear that Affirmative Action is still the law of the land... you just won’t find it anywhere within a few years.

Add this to the Supremes ripping the heart out of the Voting Rights Act and I see a Court that is determined to get Uncle Sam back out of the racial spoils game. Interesting times.

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Gay Marriage v. Polygamy

Let’s talk about gay marriage from a legal standpoint. Specifically, let me point out why the court will eventually grant such a right, and why it won’t grant the same right to polygamists. I think understanding the difference is instructive.

Up to now, the Supreme Court has punted on the issue of gay marriage. That’s pretty typical actually. In the 1960s, a very liberal Supreme Court jumped into all kinds of issues, like those involving race, abortion and the death penalty. That court thought that the public was moving left quickly and liberals felt that the court could speed up the process by just jumping to the end legally.

The results were a disaster for the left.

Those decisions resulted in a massive backlash which not only stopped society’s leftward drift cold, but started a four decade push back which has almost completely set the clock back to the way it was before the liberal court started tinkering. Even a lot of liberals, like Justice Ginsberg, have recognized this and they have become wary of trying to drive society through the courts. Thus, the court has become much more cautious about trying to change American society by legal fiat. Ergo, the court will be (and has been) very cautious about imposing gay marriage.

That said, from a legal standpoint, gay marriage is inevitable. Here’s why.

When the federal government hands out rights and benefits, it cannot discriminate. Marriage, as it currently exists, is a right (with associated benefits) created by law, and if Congress wanted to end it, it could. There is no natural right to marriage. Indeed, the only form of “marriage” the government recognizes is the legal relationship established under law in which two adults are given a special connected status that entitles them to certain tax treatments, to collect certain benefits, and to engage in certain activities. These are rights and benefit single people are not allowed to collect.

And before we continue, it’s worth understanding why this is allowed, because this obviously discriminates against single people. The answer is that the government is allowed to discriminate where it can demonstrate a sufficiently high justification for that discrimination. In the case of marriage, there is a presumption that encouraging people to marry is good for society for any number of reasons and makes society function more smoothly. Those reasons are sufficiently compelling to justify the government granting the institution of marriage and giving it special privileges, even if that discriminates against non-married citizens.

So how do gays fit into this?

As I said, when the government hands out a right/benefit, it cannot discriminate in whom it gives that right/benefit to without a really compelling reason. And “morality” is not a compelling reason. Compelling reasons tend to involve economics, the orderly administration of society, or the prevention of personal injury. So what is the compelling reason to stop gays from marrying?

It’s easy to see why children can’t marry. Marriage requires two people who are capable of exercising independent judgment and giving valid consent. Children are presumed to lack that capacity because of their immaturity. Thus, it is justified to discriminate against children by legally preventing children from marrying. It’s also easy to see why you can’t marry someone in a coma... lack of consent. Thus, it is justified to discriminate against the unconscious by legally preventing coma patients from marrying. It’s easy to see why you can’t marry a blood relative... the proven genetic damage to children resulting from inbreeding. Thus, it is easy to see why it is justified to discriminate against people who are related by legally preventing them from marrying.

It’s also easy to see why laws banning interracial marriage were struck down. Those laws were premised on “morality,” i.e. some people claimed it was immoral to allow people of different races to marry. But morality is not a valid basis for legal discrimination because “morality” is simply opinion about what conduct people who subscribe to that definition of morality find acceptable or objectionable. The law demands more. It demands a showing of societal effect separate and apart from “your view of what society should be like.” Since there was no other reason to prohibit interracial marriage except “morality,” the court struck those laws down as unlawfully discriminatory.

With gays, it’s the same thing. Other than morality, which is disputed and not a basis for legal discrimination in any event, what is the justification for allowing the government to discriminate against people who want to marry others of the same sex? Allowing this would not sanction a crime. It would not disrupt society. There is no injury concern. It would have minimal economic consequences, and it’s not clear that the benefits don’t outweigh the negatives. That leaves the court with no valid legal basis to support discrimination. Thus, the court is highly likely to strike down the limitation within the law which says this marriage must involve opposite sex partners.

In a way, this is the same legal problem as if the government decided that plumbers could not marry each other. There is no economic, criminal, personal injury, or orderly society reason to justify such a law. Thus, it would be struck down.

That’s why the court will ultimately grant this right.

But this won’t work for polygamists. Why? Because polygamists are not seeking to be granted the “right” to marry, they are seeking to expand the right itself. In other words, whereas gays and interracial couples claimed that they were being unfairly excluded from the right Congress created, polygamists would be arguing that Congress should have made a different right, one that allows for all kinds of group arrangements.

That’s a very different issue and courts don’t let you do that... you can’t expand a legislatively created right by court order. Said differently, if the federal government decides to hand out cars, you can stop it from discriminating against you in the handing out of cars, but you can’t force it to hand out houses instead.

The only way polygamists can force such a change would be by proving a general “right to marry” within the Constitution, which would then require Congress to pass laws affirming that right. But that won’t happen. For one thing, there is nothing in the Constitution which even suggests such a right. For another, the Supreme Court has repeatedly refused to find such a right when people have argued for it. Also, granting such a generalize right would be too disruptive of society; the Supreme Court simply doesn’t grant such broad, unfettered rights, even when they are in the Constitution... which this is not.

This is why (1) the Court will take its time in issuing a ruling on gay marriage, but (2) when it does, it will grant such a right, and (3) it won’t grant polygamists the same rights.

Thoughts?

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Is Affirmative Action In College Admissions Dead?

Prepare your brains. . . we’re going to talk about law. Specifically, we’re going to talk about the Supreme Court “punting” on the issue of affirmative action in the Fischer v. University of Texas case. That’s how everyone is describing it, but they are wrong. The Court’s decision very likely has killed affirmative action in education.

The Fischer case involves a white student who sought admission to UT and ran into their admissions policies which favored minority students. She sued claiming discrimination in violation of the 14th Amendment’s Equal Protection clause.

The case was heard by a Federal District Court and then appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit ruled in favor of UT. In reaching that decision, the Circuit Court relied on the Supreme Court’s decision in Grutter v. Bollinger which allows colleges to use race “as one of many plus factors” in admissions decisions. Basically, that ruling has been interpreted to mean that colleges cannot set aside places by race, but they can grant minorities extra points for their race provided that race is one of many different “plus” factors that can be awarded AND provided that race is not the predominant deciding factor. That's stupid.

“You can consider it, but you can’t base your decision on it” works out logically to X is true, but just not THAT true, and logically speaking, that’s nonsense. Morally speaking, this is nonsense as well. Either the use of race is acceptable or it is not. If it is acceptable then there is no reason to disallow its use. If it’s not acceptable, then it should not be allowed at all. And this attempt to allow its use, but not in any meaningful way, straddles the morality in such a way as to offend both sides.

When the Supreme Court agreed to take up the Fischer case, there was hope that the Court would finally kill this hypocritical doublespeak. Conservatives hoped the Court would invalidate all affirmative action. Liberals hoped the Court would endorse affirmative action. The Court did neither, however, which has the MSM universally saying the Court “punted” on the issue.

But that’s not accurate.

What the Court held was this: UT (i.e. the state) bears the burden of proving both a “compelling state interest” in causing diversity at their schools AND UT must prove that their method for achieving that goal of diversity is “narrowly tailored.” This is the standard “strict scrutiny” test for laws that violate fundamental rights like equal protection.

The Court then accepted the Fifth Circuit’s conclusion that UT’s goal of increasing diversity was a valid goal which stands up to strict scrutiny, i.e. the Fifth Circuit correctly concluded that UT had shown a compelling state interest in promoting diversity. BUT the Court rejected the Fifth Circuit’s reasoning on the second part of the test... whether or not UT’s policies were narrowly tailored. In that regard, the Court held that UT needed to show that under its plan to increase diversity, each applicant was still evaluated as an individual and not in a way that made an applicant’s race into the defining feature of their application. To do this, the Court held that UT must prove that is it “necessary” for UT to use race to achieve the educational benefits of diversity. “Necessary” in this case means this: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity.”

In other words, the school must show that it could not have generated diversity in any other way. The Court then sent this back to the lower courts for further evaluation in light of this new standard.

So what does this mean?

Well, for people looking for a bold pronouncement: affirmative action is dead/is fine! They were disappointed. They didn’t see that. And since it was sent back, the MSM seems to have decided the Court didn’t resolve anything. Hence, “they punted.” But that’s not true.

What everyone is missing here is that the Court has changed the standard for when race may be considered. In the past, the Court has held that race can be used as “a plus.” But now the test is that race can only be considered when there is “no workable race-neutral alternative” to create diversity. That’s a huge difference. Basically, before you could use race as a plus if you wished, now you need to prove that you can’t achieve diversity through any other means. And here’s the kicker: I can’t imagine a situation in which that would be possible to prove. For one thing, many schools already use alternate means of attracting diversity like setting aside places based on income level or by setting aside places based on geography (top X% of every high school in the state). Given that, how can a school ever argue that there are no workable race-neutral alternatives? They can’t.

What the Supreme Court has done here is kill affirmative action by leaving it in place but making it impossible to use. And in the process, they have killed affirmative action without anyone realizing that’s the case, which is a brilliant way to make a social change because no one protests something they don’t realize has happened.

So what happens next? My guess is that once college lawyers look over this decision, most will simply abandon race-conscious admissions programs and will switch to income or geography-conscious admissions programs. The ones who don’t will be challenged and will find that they can never prove what the Court requires to maintain their race-conscious programs. Thus, ultimately, affirmative action will vanish from college admissions.

Thoughts?

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Supreme Courtin' It

There’s a lot of buzz suddenly about the Supreme Court possibly changing the course of the election. The thinking is that with the Supremes about to hear several controversial cases right before the election, that could excite one side or the other to turn out. Uh... no. Few people connect the Court to the election. Moreover, the Court won’t be issuing rulings until after the election. Still, there are some interesting cases coming up.

● Case No. 1: Affirmative Action. Fisher v. U. of Texas is an affirmative action case arising out of the admissions program at the University of Texas. Texas uses race as a consideration in its admissions to ensure educational diversity. Nine years ago, in Grutter v. Bollinger, the Supreme Court said this was acceptable, but the Court has since moved to the right.

When it was originally created, affirmative action was approved by the Court on the basis that it would involve discrimination in favor of certain groups to address “prior wrongs.” This meant, it could be used only where there had been prior discrimination. This was meant to justify discriminating against people who never discriminated themselves because supposedly their racial/gender group had benefited even if they hadn’t. Over time, however, it spread to virtually everywhere, and it got the point that it applied to more than 60% of the public including people who had just arrived in America. That’s when the Court began reining it back in.

In this case, Fisher, who is white, claims that she would have been admitted to the school if she had been any other race. Texas counters that diversity is important to them. Obama’s Justice Department has backed the University.

It’s not clear what the Court will do, though Justice Roberts has attacked affirmative action in the past as being “a sordid business, this divvying us up by race.” Kennedy, Scalia and Thomas all opposed the Grutter case allowing race to be used at all, and Alito likely sides with them. So it’s possible the Court will end the use of race in admissions and hiring, or at least require proof of direct discrimination. That said, they could also rule much more narrowly by saying that race may not be used where a goal like diversity can be achieved through some race-neutral means (like taking the top X% of high school graduates within the state or looking at family income). Or they could just affirm the present order.

● Case No. 2: Gay Marriage. The Supreme Court is likely to take on two gay marriage cases. The first involves the Defense of Marriage Act (DOMA). DOMA defines marriage federally as between a man and a woman and denies around 1,000 federal benefits (tax breaks, social security benefits, burial services, etc.) to gay couples who have been legally married in their home states. Obama’s Justice Department has refused to defend the law and several lower courts have already ruled it unconstitutional. How the Supreme Court will rule is unclear, but I suspect they will strike DOMA down.

In the past, the Supreme Court has overwhelmingly struck down laws which denied gays the same rights and protections afforded to heterosexuals. In Lawrence v. Texas in 2003, the Court struck down a law making gay sex illegal. In Romer v. Evans in 1996, the Court struck down a Colorado amendment which banned the passage of gay rights laws. It’s likely that the Court will conclude that DOMA illegally discriminates between lawfully married couples and will strike it down.

The Court may also take on the more significant Hollingsworth’s case, which involves California’s Proposition 8, which banned gay marriage in California. Prop 8 was struck down by the Ninth Circuit on narrow grounds rather than on the basis of some right for gays to be married, but the practical effect of that ruling would be to allow California to go forward with gay marriage.

The Supreme Court could refuse to hear the case (deny cert) in which event the law would remain struck down. Or it could affirm the decision or overturn it. If I had to guess, I would say the Court avoids deciding whether or not there is a right for gays to marry and will instead find some technical reason to affirm or overturn the Ninth Circuit’s ruling. My guess is that ultimately (in some later ruling), the Supreme Court will affirm the right of the states to make up their own minds on the issue of gay marriage, and in anticipation of that ruling, it will stick very closely to making sure that each side complied with California’s legal process in this case. Thus, whichever side should have won under California’s election/legislative process will prevail. . . but the issue won’t be decided under the United States Constitution. But you never know.

● Case No. 3: Voting Rights Act. In 2006, the Congress extended the portion of the Voting Rights Act which requires state and local governments “with a history of discrimination” to get advance approval from the Justice Department before they can change their voting rules. Congress extended this law 25 more years and Bush signed it. It applies to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as some counties in California, Florida, New York, North Carolina, South Dakota, Michigan and New Hampshire.

When the Court reviewed this provision in 2009, it expressed significant skepticism, but did not rule on its validity at the time. Said Justice Roberts:

“We are now a very different nation [than the one that first enacted the Voting Rights Act]. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

With Congress renewing the law but without making any changes, and with these states arguing that any discrimination was in the distant past, it’s likely that if the Court hears this case that it will strike down or significantly narrow this provision. The practical implications of this can be seen in things like the recent Voter ID laws, which essentially need Justice Department approval or need to be litigated in advance. Without this provision, states would be much more free to pass these law and would no longer be presumed to have discriminatory intent.

Thoughts?

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Some Final Thoughts On Obamacare

I’m taking the week off until next Monday. But before I go, here are my final thoughts on the ObamaCare ruling. Basically, while this is a legal disaster for the country, I think politically this is a very good thing. Also, by way of a bonus, at the end of this article, I’ve included some links to the CommentaramaCare proposal which outlines the reform we really need.

● The Supreme Court Fails: Legally speaking, the ObamaCare decision is horrible. Some conservatives have latched onto the fact Roberts made a lot of great points about how the Commerce Clause and the Necessary and Proper Clause don’t extend nearly as far as the statist would have you believe. Sure, that’s nice. BUT then he turns right around and opens an unlimited window for Congress to use its tax powers to do anything! There may eventually be limits on this power, but as it stands right now, this is one of the five or six biggest power grabs in Constitutional history.

It is also troubling that this decision is based on verbal semantics: punishing someone for non-compliance is not the same thing as forcing someone to comply. Really?! That’s nonsense! That’s a distinction without a difference -- a verbal game -- and it’s disturbing that the Supreme Court would accept this double-speak as reasoning. This will lead to a whole new world of control once Congress realizes it can just “tax” you into compliance without ever triggering the limits on its power to “punish.” That’s troubling.

● The Conservative Opportunity: Politically, however, this is a very different story. Politically, I think this decision is a Godsend for two reasons.

First, this decision will destroy the Democrats, and not just Obama. Human nature tells us that people forgive and forget misbehavior if it stops before the negative consequences kick in. So long as people assumed the Supreme Court would rein in ObamaCare, the public was very likely to forgive the Democrats and consider this a non-issues. Now that assumption is gone, and this decision revives the possibility of negative consequences. That will wake up the public and end its forgiving mood. Indeed, I would suspect this will endanger another 3-5 Democratic Senators in flyover country and could ultimately give us another 2-3 seats. And while I don’t think that will give us enough seats in the Senate to overcome a filibuster, it will be the difference between a majority (52-53 seats) and a solid majority (54-57 seats), which should be all we need under the new scorched-earth Senate.

Secondly, I think this ruling saved us from a disaster. If the Supreme Court had struck down the mandate, but left the rest, I have no doubt the Republicans would have declared victory and just moved on. That would have left a plethora of horrible things ensconced in law, including trillions in taxes, dirty deals with drug companies, anti-competitive requirements on hospitals and doctors, new entitlements, the unfunded expansion of Medicare, the creation of these insurance exchanges, etc. In effect, the least damaging part of the law would have been struck down and the other 99% of the harm would have remained. Now the Republicans will need to address the bill itself, and the pressure will be to repeal and replace the whole thing. That means they will actually need to fix much of this. That is the real reason this decision may ultimately prove to be a saving moment for the Republic, because it means the Republicans can’t ignore the real problems.

● Repealing Stupidity: Repealing ObamaCare should be simple. Passing it by reconciliation means that by definition it can be repealed by reconciliation. And reconciliation only needs 51 votes. Naturally, the Democrats (and some weak Republicans) are whining that somehow the bill can’t be repealed by reconciliation, but that’s nonsense.

● Building A New Crisis: There is an economic crisis built into ObamaCare and it will be interesting to see what happens. The law expands Medicaid to the point that it will shatter state budgets. But states don’t need to sign up for this. Indeed, the Supreme Court ruled that the states can refuse to expand Medicaid as the bill requires, and the Federal government cannot withdraw Medicaid funding if the state so chooses -- it can only withhold the additional funds intended to cover that expansion.

But just because states don’t need to sign up, doesn’t mean they are smart enough to refuse. A few Republican governors have said they won’t sign up, but most see this more as an opportunity to negotiate a lot of freedom from the requirements of Medicaid. It will be interesting to see what they obtain. The problem, however, lies with the Democratic states. . . as always. These idiots are rushing to sign up as a show of support. This will result in a dramatic increase of their Medicaid costs, which will bust their budgets. At first, the federal government funds this expansion, but within a couple years, that subsidy vanishes. That’s when states like California and New York will find themselves in budget hell (as if they weren’t already). Without federal money, I don’t see this as sustainable, but how will they cut off so many people once they sign them up? Watch out if you live in a liberal state which accepts this expansion!

● Death to the Middle Class: Conservative economist and Senior Economics Writer for the Wall Street Journal, Stephen Moore, just made an interesting statement. He claims that 75% of the cost of ObamaCare will fall on the middle class -- people making less than $125,000 per year. That’s not at all surprising because that’s who always pays for these programs. Still, this is unwelcome news for a middle class which has been hit with falling incomes, falling asset values, falling home prices, massive inflation, an ever-higher tax burden, and fewer job prospects. At some point, this rubber band will break.

Conclusion

To sum up my thoughts, this bill is a disaster. It will crush the stupid states, it will crush the middle class. It will damage our healthcare system a lot. The Supreme Court’s ruling has damaged our Constitution. BUT this will wake up the public and will help to finish off the Democrats. It will also force the Republicans to act. In the end, this decision may prove to be the moment which spurred the Republicans to actually fix the healthcare crisis, and thereby save the country. Let’s hope.


Finally, by popular demand, here are some links for you to consider:

First, here’s what’s wrong with our healthcare system: Out of Control Costs, Out-of-Control Costs II, Access, and Quality Control Problems.

Secondly, we have a report card on why ObamaCare fails to address these problems: FailureCare.

Lastly, we have CommentaramaCare, a proposal on how the system should be fixed: Com-Care Tort Reform, Com-Care Medical Reforms, Com-Care Coverage Reform, and Com-Care Summarized and Priced.

Have a happy and free Fourth everyone!

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Supreme Court ObamaCare Wrap-up!

It seems the individual mandate in ObamaCare is doomed. The question now is whether or not all of ObamaCare will be struck down. I originally doubted that it would be, but now I’m thinking it might be. One thing is for sure though, losing will not help the Democrats as many of them are trying to suggest.

● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.

● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.

● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.

● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.

Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.

Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.

Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.

The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.

So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.

As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.

● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.

James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.

● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?

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The “Dangers” Of Obamacare

Obama’s Obamacare debacle continues. Not only did Obamacare rescue conservatism from disgrace, but its backlash gave us a Republican Congress. And its after effects are still coming. Indeed, even reliably liberal sources are finally noting that Obamacare may have problems. Now, in two weeks, the Supreme Court will hear the case, and all the indications are the court will strike down part of it. Let’s discuss!

In the past couple weeks, there have been a series of articles BY LEFTISTS pointing out that Obamacare may not be all it’s cracked up to be. They identify four “dangers”:

● Danger One: Obama made a big deal of promising that “if you like your current plan, you’ll be able to keep it.” Yet, according to a CBO report, under the best-case scenario, 3-5 million people will lose their current plans. Under the CBO’s worst-case scenario, this number could be 20 million people. That would be 12% of people who are currently insured.

Of course, the reality is that this will be much worse. For one thing, historically, government “worst-case scenarios” are almost always understated by a factor of five. That would mean 60% is a more likely number. And there are several reason to believe that’s the case here. The CBO scores these things using a static model, meaning they don’t take into account how people will change their behavior over time. Instead, the CBO just does the math based on how the world is today. Thus, they did not factor in the increasing costs of policies, nor did they factor in that once companies see their competitors gaining an advantage by dumping their healthcare plans, more companies will follow.

The left is trying to downplay this by saying that businesses can’t really dump their coverage without upsetting their employees -- an interesting argument for the left to make, as they regularly claim businesses don’t care about employees. But of course, this isn’t true. Employers do things for financial reasons, not sentimentality, and financially it will be stupid not to dump the healthcare plan onto the government.

● Danger Two: The Democrats promised Obamacare would reduce healthcare costs. Of course, it actually contained nothing to bring costs down, and costs have continued to soar. Recent polls show that 49% of people blame Obamacare for the rising cost of premiums! The left is whining that it’s unfair to blame Obamacare for this because Obamacare “wasn’t intended to bring down costs,” but that’s how they sold it. I guess they shouldn’t have lied?

● Danger Three: They are starting to realize the law will not pay for itself, and the cuts in Medicare which were supposed to finance it aren’t happening. Whoops. Bankruptcy, here we come.

● Danger Four: The Democrats bet heavily on the idea that “the more the public knows, the more they’ll like it.” But that’s not happening. Obamacare’s favorability sits around 41%. And the reason for this is obvious -- it hasn’t helped anyone, but its negative effects are already being seen everywhere: higher premiums, lost insurance, doctors quitting the business, higher taxes, etc. That’s the way the Democrats set it up to hide the true cost so the law could be passed. Now they are paying the price for that deception. Moreover, according to polls, in just one year, the number of people who know what the supposed benefits of Obamacare are (subsidies, can’t be turned down, etc.) has fallen by half. Basically, it’s now seen as all pain and no gain.

This is what the Democrats get for massaging the law and lying about it to get it passed. And now the law goes to the Supreme Court. In two weeks, the Court will hear the oral arguments in the case. They’ve scheduled an incredible SIX hours for oral argument over three days. They have not give a case this much time in 45 years. The implication is they plan to make a major decision, which bodes poorly for the Democrats, who will in all likelihood now lose the very thing they risked so much to pass.

Nevertheless, the left is trying to put on a brave face. Indeed, they are making all kinds of bizarre and contradictory points to explain why the various conservative justices might vote to keep Obamacare.

For example, the Washington Post argues that “Roberts is protective of the court’s reputation and sensitive to the perception that its decisions are politicized.” Thus,
he won’t want five Republican-appointed judges throwing out a law written by Democrats. Hardly. For one thing, if the Court cares about its reputation being apolitical, then it will do what it believes is correct about the law -- not what the Washington Post thinks needs to be done to please Democrats.

Moreover, this court has proven fearless at both making big decisions and making unpopular decisions. The left likes to claim that this is an “activist court” and to a degree they are right. This is not a court which respects the assertions of government that it has cart blanche power. Between this, the prior gun case, Citizens Union striking down campaign finance, and next year’s unexpected affirmative action case, this is clearly a court determined to start taking away the government’s power to control the rights the Constitution leaves to the people.

The left also argues that some of the other conservative justices might join the liberals because they have supported the use of the Commerce Clause to invade personal privacy before. Yeah, but... those were criminal cases, where conservatives have less love for the Constitution. Those also didn’t force anyone to take any affirmative actions, those laws only forbade people from doing things the Federal government wanted to make illegal. That’s a HUGE distinction.

It is interesting to note that the same leftists who are now predicting that anywhere from 1-3 of the conservative justices will jump ship are the same people who claimed that the lawsuit brought by the states was frivolous in the first place. Clearly, they had no idea what they were talking about then, and I expect they have no idea now. It seems clear to me that the Court will strike down the individual mandate, but not the rest, on a 5-4 vote.

Now here comes the part you won’t like. This COULD actually be bad for us. Here’s why. Because of the way conservatives have played the entire Obamacare debate, the public is outraged at the individual mandate, but oblivious to the rest. If the Supremes strike down the individual mandate, then the desire of the public to repeal the rest might fade. Thus, conservatives will need to pound away at the idea that the rest needs to go because it won’t work without the mandate.

On the other hand, this might actually make it easier to repeal and replace Obamacare because the public will already view the law as having been struck down by the Supremes. Thus, it shouldn’t be particularly controversial if Republicans start repealing the law’s parts piece by piece.

It’s hard to tell which way this will play. But no matter what happens, it is clear that Obamacare will continue to hurt the Democrats in November and possibly even the November after that.

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Video Game Violence: What About The Parents?!

Being a huge proponent of freedom of speech AND a believer that videogames, television, advertising and films can negatively distort people’s perceptions of reality, you would think I would be torn about yesterday’s 7-2 decision by the Supreme Court striking down a law that prevents minors from buying violent videogames. But I’m not. The court got it wrong, pure and simple.

The issue before the Supreme Court was a California law that makes it illegal for retailers to sell violent videogames to minors. The law defines “violent” as games that depict the “killing, maiming, dismembering or sexually assaulting an image of a human being.” It carried fines up to a $1,000.

Writing for the majority, Justice Antonin Scalia struck down the law, saying that the First Amendment applies to “entertainment,” and thus, videogames are afforded the same degree of protection as books and movies. He conceded that states do have a legitimate interested in protecting children, but he held that “does not include a free-floating power to restrict the ideas to which children may be exposed.” And since “disgust is not a valid basis for restricting expression,” the law had to be struck down. Indeed, by way of comparison, he noted that television and children’s books throughout history have depicted violence:

“Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed.”

If we were talking about adults, then I would agree with the court. Free speech is one of our most vital freedoms. It is the way we determine which ideas have value and which don’t. It is how we test our beliefs. And our society is more than strong enough to allow idiots to present stupid, disgusting or wrong ideas without fear that our country will collapse.

But we’re not talking about adults, and that’s where the court went wrong.

The court should have upheld the law for one simple reason: children do not have freedom of speech rights. If they did, then public education would be virtually impossible as children would have a right to decide which ideas they wanted to be exposed to and which they didn’t. Similarly, parenting would become impossible whenever the state got involved, for example at a child custody hearing, as children would have all the rights of adults.

Justice Thomas made this point in his dissent where he noted that the First Amendment does not “include a right to speak to minors without going through the minors’ parents or guardians.” In other words, children's rights get exercised through their guardians, and the state is well within its rights to say that children may not engage in free speech, or commerce, or gun ownership or anything else without the approval of those guardians.

Putting this another way, the court’s question of whether disgust is a significant enough basis to restrict the child’s freedom of speech rights is a false premise because the child has no such rights in the first place. Liberal Justice Stephen Breyer (the other dissenter) backed this point when he noted that the state was not trying to bar the minor having such material, it only required the approval of a guardian:

“The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help.”

Breyer also made the less principled, but quite logical point that since the court still forbids children from buying pornography, the court has created an incredible hypocrisy here:

“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

The dissent is correct. This was a mistake.

And let me be clear, I’m not siding with the “what about the children” crowd. That’s sophist nonsense used to hide true motivations and is usually advanced by busybodies who want to rule over others lives. What I’m talking about here is respecting the right of parents/guardians to make decisions regarding their children. If this law had tried to ban children from being given such material, then I would have supported the court’s decision. But it didn’t. All it did instead was try to prevent retailers from circumventing the rights of guardians/parents to make decisions for their children. That is well within the constitution and no rights are violated by such a statute.

How can we legitimately tell parents that raising kids is their responsibility when we take away the state’s power to help parents enforce those decisions.

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Has The Supreme Court Solved The Immigration Problem?

America changed last Thursday. While everyone was dreaming of hotdogs and television marathons, the Supreme Court quietly issued a decision that may end up solving the illegal alien problem. In a 5-3 vote, the Supreme Court upheld an Arizona law from 2007 that penalizes businesses that hire workers who are in the United States illegally. Democrats and big business should be very afraid.

The law in question is the Legal Arizona Workers Act. This law provides that Arizona employers who knowingly or intentionally hire illegal aliens will have their business licenses suspended or revoked. The loss of a business license in most states means that a company cannot transact business, cannot bring lawsuits or defend itself in court, and cannot do things like participate in workers compensation schemes (i.e. have employees). It is essentially, a death sentence for a business. But, you ask, what keeps employers from just turning a blind eye to avoid the “knowingly” requirement? The law further requires that employers must use the federal “E-Verify” system to confirm the eligibility of workers for employment.

This law, signed by Gov. Janet “The Village Idiot” Napolitano in 2007, was challenged by the Chamber of Commerce (a theoretically conservative organization), with backing from the ACLU (a known America-hating outfit). They argued that the law was illegal because immigration law is exclusively within the power of the federal government. Thus, Arizona has no right to pass any laws involving immigration.

Writing for the majority, Justice John Roberts shot this down. He wrote that Arizona’s employer sanctions “fall well within the confines of the authority Congress chose to leave to the states.” In other words, Congress controls the nation’s immigration laws, but it has allowed the states some powers and the power to punish employers who hire illegals is one such power. Each of the leftist judges voted against this except Kagan, who recused herself because she had challenged the law on behalf of the Obama administration.

So why is this important?

Well, let us be honest about illegal immigration for a moment. To convince you that they are tough on illegal immigration, many conservative politicians pound the table and loudly proclaim that if only we (1) built a wall and (2) deported all the illegals, we could solve the immigration problem. This is pandering.

The truth is that a majority of illegal aliens do not cross illegally over the border. Most overstay visas. Thus, putting up a wall will do nothing to stop them. Moreover, as long as they can climb over the wall, dig under it, go around it by boat or plane, or get passes to visit the US even on day trips, no wall will ever be effective. It’s a fantasy to think otherwise.

Deporting them is an equally false solution. There are 12 million illegal aliens in this country with more coming every single day. Last year, we deported 380,000 people. That is 1/31 of those who are here. It took 21,000 officers to do that. Imagine how many officers it will take to get the other 30/31 and tell me if paying for those officers is politically sustainable? Moreover, finding these people is not easy and will breed massive resentment as it would require neighborhood sweeps and a police state that rivals East Germany. And even if we can ultimately find them all, there is nothing stopping them from simply turning around and coming back. You would if you were dumped in Mexico overnight, so why would anyone think they won't?

The only realistic solution to this problem is one that prevents illegal aliens from wanting to come to the United States. There is considerable evidence that they do not come when and will not stay here if there are no economic opportunities for them. Indeed, during the last recession, nearly two million went home.

In light of that, consider what the Supreme Court has done. It has given states the power to take away the economic opportunities that attract illegal aliens. As Republican states one by one make it dangerous for employers to hire illegals, employers will stop hiring them. Liberal states will need to follow suit or get flooded by illegal aliens. As the economic opportunities in the US dry up, illegal aliens will stop coming to the US and those that are here will start to leave. It won't get rid of all, but it will make this problem infinitely more manageable.

Thus, while the federal government pretends to act and offers placebos in the hope of distracting the public from its complicity in working to bring in substitute labor and votes, the states can now fix this problem all on their own.

Even better, as far as Republicans should be concerned, this avoids the political damage of being seen to be the party of mass deportations. Better yet, while everyone is focused on the flashy new law Arizona passed in 2010, this one will silently go about its job of fixing this issue with little fanfare.

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Individual Mandates: A Legal "Bridge Too Far"

By now you’ve all heard that “ObamaCare was struck down.” As usual, little of what you’re hearing is right. So let’s go over several points, some of which are really quite fascinating, particularly Judge Roger Vinson’s deep understanding of his role as a judge.



1. First, unlike what I pointed out in my prior article on the ruling of the District Court in Virginia, this decision involves 26 states. Moreover:

● This decision, even more so than the Virginia decision, guarantees the Supreme Court will review this issue, because of the involvement of the states attorneys general.



● This decision gives more ammo to Senate Republicans, all 47 of whom openly support repeal. It also provides cover to any Democrats looking to save their political lives by voting for repeal. Joe Manchin (WVa) and Ben Nelson (Neb) specifically have been mentioned -- though both claim they only want to fix the law rather than repeal it.

2. It is worth noting that the arguments made and the Judge’s reasoning come down exactly as predicted in my March 2010 and May 2010 articles, and that the so-called legal experts (read: liberal propagandists) were not only wrong, but were so wrong as to constitute malpractice.



3. Vinson’s decision has two parts. The first part deals with the argument Congress violated the constitutional spending principle by forcing the states to expand Medicaid to the point where it will bankrupt the states. ObamaCare defenders argued that Medicaid is a voluntary program, and thus Congress may impose such requirements because states are free to back out if they think it will cost too much. The states countered that they can’t back out because they are effectively “coerced” into staying in Medicaid. Vinson rejects the coercion argument because every other court that’s looked at Medicaid has found it to be a voluntary program.



I think Vinson is wrong on this point, but I attribute this to a failure by the plaintiffs to properly brief this matter. Vinson seems a thoughtful judge, but it looks like the states just didn’t present much of an argument. Vinson sounds unimpressed with the evidence they offered and they apparently provided him virtually no legal support for their position. In fact, they entirely avoided the stronger Ninth and Tenth Amendment arguments, which were not briefed “except in a single passing sentence.” That’s attorney failure.



4. In the second part, Vinson strikes down the individual mandate. This is where things get interesting.



First, for history/legal buffs, Vinson delves into the entire history of the Commerce Clause and how (and why) it changed over time. Such an in-depth history is rare in District Court rulings, and what he presents is highly informative and quite accurate. Click here to read the decision.



Secondly, his reasoning striking down the individual mandate is impeccable. Vinson points out the cases cited by both sides, and he explains:

● That not a single case has ever held that Congress has the power to regulate “inactivity” under the Commerce Clause; and



● He rejects the ProObamaCare argument that inactivity constitutes activity. They claimed that it’s impossible to truly opt-out of healthcare and, thus, the uninsured are merely engaging in "future cost-shifting" because someone else will ultimately have to pick up the tab for their care when they get sick. He called this too attenuated; saying it was “a bridge too far” to use a person's decision now which might one day result in future cost-shifting which might affect interstate commerce as the basis for finding the current decision to involve engaging in interstate commerce -- especially since they may be wealthy enough to self insure, or charities may pick up the tab, or they may buy insurance before that happens. Thus, there are too many "ifs". He also notes that accepting this argument would give Congress unlimited power because anything could then be considered engaging in commerce:

Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or. . . Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile --- now partially government-owned --- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.



Should Congress thus have power under the Commerce Clause to preemptively regulate and require individuals above a certain income level to purchase a home financed with a mortgage (and secured with mortgage guaranty insurance) in order to add stability to the housing and financial markets (and to guard against the possibility of future cost-shifting because of a defaulted mortgage), on the theory that most everyone is currently, or inevitably one day will be, active in the housing market?

* * *

The problem with this legal rationale. . . is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort.

● The ProObamaCare people also tried to squeeze this individual mandate through the “Necessary and Proper Clause,” which allows Congress to pass all laws that are necessary and proper to carry out its duties. But Vinson correctly notes that this clause cannot be used to justify unconstitutional laws.

5. Finally, we come to the most interesting aspect of this decision -- a true moment of judicial restraint. After finding the individual mandate unconstitutional, Vinson needed to decide if the rest of the statute could go into effect without it. This involves something called severability, which is a legal doctrine that holds that if the unconstitutional provision can be severed from the rest of the law, then it should be, and the rest of the law should go into effect.



Based on the history and the functioning of the act, Vinson concludes that severability is not possible. He notes, for example, the Congressional Record is full of statements about the true purpose of this act bring insurance reform and that the individual mandate was the key element of that reform. He notes that the defendants repeatedly stressed throughout the litigation that the individual mandate is “essential” to the Act. He also notes the failure to include the severability clause in the final draft, which is not fatal in and of itself, but which suggests that Congress viewed the entire Act as one piece.



Ultimately, however, his decision comes down to the fact that Vinson considers it impossible to separate the individual mandate from the Act, while still carrying out the purpose of the Act “as Congress intended.” In other words, the statute is “a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal [which] would be undermined if a central part of the legislation is found to be unconstitutional.”



Vinson then shows a deep understanding of the role of the courts, when he concludes that this makes it impossible for him to carve out the individual mandate. Not only does he say that he doubts he could actually determine which portions of the Act depend on the mandate, but he says that this is not a proper role for the courts:

Cleanly and clearly severing an unconstitutional provision is one thing, but having to re-balance a statutory scheme by engaging in quasi-legislative “line drawing” is a “‘far more serious invasion of the legislative domain’” than courts should undertake.

* * *

If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.

So when the media (and the Democratic PR machine) start running around calling this judicial activism, remember this quote. This is exactly how courts are supposed to act -- with judicial restraint by leaving the legislating to the Congress.



Finally, let me point out one irony. As an attorney, one of the most common mistakes I’ve seen has been attorneys who simply cannot let go of bad arguments. If the defendants had given up on the mandate, or simply not stressed its importance, Vinson may have just struck down the mandate and left the rest of the law in place. But like so many other bad attorneys I’ve met, they were not going to give an inch of ground if it killed them. And in this case, it did. It truly became a bridge too far.





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ObamaCare Struck Down? Not Quite

In case you didn’t hear, a federal judge in Virginia struck down a key portion of ObamaCare today. This ruling was made in response to a lawsuit brought by the Commonwealth of Virginia in defense of a new state law that prohibits the government from forcing state residents to buy health insurance. What does this ruling mean for ObamaCare? Well, don’t get excited. On a practical level, this ruling means nothing. Here’s what you need to know.

First, this ruling struck down the part of ObamaCare that allows the federal government to compel individuals to buy insurance. I’ve spoken before about why this will probably ultimately be found to be unconstitutional (click me).

Secondly, this ruling was issued by Federal District Court Judge Henry E. Hudson, a Republican appointee. He sits in Richmond, and thus, the scope of his reach is only Virginia. In other words, this ruling does not affect anyone in any other state. Moreover, other courts have already gone the other way on this provision, finding it constitutional, including courts in Michigan and Virginia.

So what does this mean? It means there is a conflict, and those need to be resolved, right? Actually, no. As strange as it may sound, conflicts are allowed under federal law, though they are not preferred. They are usually resolved by the appeals process, but not always. And when they aren’t resolved, different parts of the country will find themselves living under federal laws that have been interpreted differently -- you often see this in tax cases.

Still, as I said, conflicts are not preferred. And here is what is likely to happen.

The way the federal courts work, the District Court is the lowest level (excluding certain specialty courts). The scope of their power is the district within which they sit. Most states are broken into two districts. Thus, for example, you have the Eastern District of Virginia and the Western District of Virginia. These two districts can (and often will) conflict.

To fix the conflict, an appeal is made to a higher court -- the appellate courts. In the case of Virginia, the appellate court is the Fourth Circuit Court of Appeals. That court happens to sit in Richmond, but it oversees all of the District Courts in Virginia, West Virginia, Maryland and the Carolinas. When the Fourth Circuit issues a ruling, its ruling becomes the law in each of those states and any conflicts are erased.

But this doesn’t necessarily end the conflict because the country is broken into thirteen Circuit Courts, and they can conflict with each other. Thus, the Sixth Circuit in Ohio may disagree with the Fourth Circuit in Virginia or the Second Circuit in New York. When such a conflict exists, the only way to resolve it is to appeal to the Supreme Court. A Supreme Court ruling will become the law of the land and will apply to all Circuit Courts automatically, no matter which Circuit Court the appeal came from.

BUT appeals to the Supreme Court are not mandatory, nor are they guaranteed. In other words, the Supreme Court can refuse to hear an appeal, even when there is a conflict in the Circuits, and that will leave the conflict in place. That said however, it is unlike the Supreme Court will allow a significant conflict to continue. One Circuit striking down ObamaCare while another affirms it would be the kind of conflict the Supreme Court is unlikely to leave in place.

Since the Fourth Circuit is the most conservative Circuit Court in the country, and will likely affirm Judge Hudson's decision, and Circuits like the Sixth and Ninth will go the other way, a conflict is more likely now than before. Thus, the real meaning of today’s ruling is that this decision makes it more likely that the Supreme Court will hear this case. . . but that's it.

Also, as an aside, don't expect much to come from this ruling because the case everyone is watching is the lawsuit filed in Florida by the twenty state Attorney's General. So expect nothing to happen in the Supreme Court until that case makes it there.

All in all, today's ruling is nice and it makes it somewhat more likely that the Supreme Court will hear this case, but it doesn’t mean much more than that.

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It's Not That Simple...

Tomorrow, I’ll discuss how the Tea Party is bringing much-needed common sense back into politics. But before I do that, I want to dispel this idea that governing should be simple if we only used common sense. What I'm talking about is best illustrated in a recent commercial which asked, “what would the world be like if firemen ran it.” As the firemen sit in the legislature, the chief asks, “who wants clean water?” Everyone raises their hands, and the chief says, “easiest job in the world.” Sadly, many people believe this utopian view is how government should be and they see any suggestion that governing is more complex than that as an attempt to keep "real" people out of government. This is utter nonsense.

To explain why, let’s start with the most basic principle ensconced in law. This is one we can all agree upon and which most people view as so entirely obvious and unambiguous that they think it could be put into law “as is,” and they complain that only a lawyer could see ambiguity in it: thou shalt not kill. Unambiguous, right?

Well, let me ask: what if I kill in self-defense? Suddenly, we've found an exception and the statement is no longer as inviolate as it seemed. But this is only one exception and everyone understands what self-defense is, right? Ok, is it self-defense if I kill someone who wasn’t actually trying to kill me? Does his intent matter or how I perceived it? What if I acted preemptively, before he made the threat? What if I started the fight or if I could flee with no danger? What if I killed an innocent bystander in the process? Does it matter if the danger passed before I finished the killing? Does it matter if I was defending someone else instead of myself? What if they didn’t want my help? What if I was drunk? What if someone else made me drunk or a medication made me lose touch with reality? What if the medication was illegal? Ok, forget self-defense, what if my killing took place on a battlefield where the government instructed me to kill? Can I kill in the government's name? Anyone at any time? What if I’m violating orders? What if I kill an enemy soldier who has surrendered? What if I kill a friendly soldier by mistake? What if I kill purely by accident? What if the accident resulted from my carelessness or recklessness or indifference? What if I built a dangerous product that I knew would kill someone? What if I only suspected it might? What if they misused it, but I knew they probably would? What if the person I killed was about to die anyway? What if they were being eaten by a shark, and they asked me to shoot them to stop the suffering? Does any of this apply to animals? Should it apply to a fetus? What if the woman was on her way to get an abortion when I killed the fetus? I could go on for pages.

Do you see the problem? It sounds easy to say “this is an obvious principle and there’s no reason it should be complicated” until you stop to realize that it is complicated. This is the clearest, most agreed upon principle across the planet, but it lends itself to hundreds of pages of discussion because there are thousands of scenarios to consider. And as you get further and further along, you’ll find that opinions begin to diverge until you find scenarios where there is no clear consensus. Now imagine how much more complex this becomes with less clear issues like “respect another’s property” or with dividing up the use of river water.

You can often see that people don’t grasp that these issues are inherently complex when they start talking about the Constitution. Too many people who adopt the simplistic view will spit out a single phrase they’ve picked from the Constitution and they will assume that settles the issue. For example, gun people often say, “shall not be infringed,” to argue that the Constitution clearly forbids any regulation. But that’s an irrationally simplistic view of the Constitution, as even the “no infringers” will simultaneously agree that police should have the power to disarm you in a confrontation and that wardens can keep prisoners from buying guns. Both of these are infringements. And if you accept that the phrase “shall not be infringed” cannot be taken literally, i.e. it does allow for infringements, then you’ve interjected ambiguity, the same ambiguity the simplistic view finds so offensive.

Moreover, despite popular opinion, the Constitution is not a complete guide for government nor is it a detailed list of dos and don’t. . . it is ambiguous. For example, while the Constitution provides a list of rights and powers, that list is crawling with vague terms, such as allowing the government to impose regulations for the “health, safety and welfare” of the people. Taken literally, that would seem to grant unlimited power. It took the Supreme Court to decide that the Bill of Rights limited state governments as well as the Feds -- the Constitution is silent on that point. So should we undo that? It's the rare literalist who says we should. Even more interestingly, the Constitution doesn’t actually tell us who decides what's constitutional, the Supreme Court grabbed that power in Marbury v. Madison, yet everyone seems to accept that now.

There is also often a utopian flavor in the simplistic line of thinking. You often hear: why don’t the politicians just do what the people want? But which people? And what if the majority want to enslave the minority? We’ve asked before, should the role of representatives be to do the will of the majority in their district or should they use their judgment? None of our readers was willing to say entirely one or the other, in other words you all accepted an ambiguity in the system.

The point to all of this is that the simplistic view that governing is all about just reading the Constitution and doing the common sense thing is flawed. Simplicity is not a sign of purity of thought or wisdom, it is a sign of ignorance of reality. (The same holds true in science as well, where answers usually only seem simple when you’re missing critical details.)

Now, that said, let me state that we need a return to common sense principles in government. Too many politicians live in a world of semantics and false logic where verbal games and procedure trump substance. They see a critical difference between a fee and a tax, even though both are the same. They see a reduction in a projected rate of growth as a cut. They think they can balance a budget by taking spending “off budget” or by adding in fake future cuts that will never happen. This is where common sense is badly needed.

What we need are people who understand the complexities of making laws, but who also grasp the common sense principles about how a government should be run. We need to avoid the snake oil sellers who tell us “it’s simple, I’m just gonna lift the hood and fix it,” but we also need to avoid the snakes who think they can dance on the head of a pin.

This isn't that hard, but it's just not simple.

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The Supreme Court Goes Stupid

Yesterday, in a 5-4 decision, the Supreme Court ruled that anyone under the age of 18 cannot be sentenced to life in prison without parole unless they’ve killed someone (they ruled out the death penalty for teens in 2005). To some, this might sound like a good distinction, but it’s not. By focusing on the outcome of the crime rather than the actions undertaken, the Court has created an illogical, arbitrary and nonsensical law. Consider this. . .

Actions and Intent Should Matter, Not Outcomes

The Supreme Court’s new ruling focuses on the outcome of the crime, as courts must now look to whether or not the teenager killed someone. This is ridiculous. Under the law, taking an action has always been enough to receive the maximum punishment for the crime without any consideration as to the outcome. Thus, the punishment doesn’t change depending on how successful the criminal was, e.g. if you break into a bank, you are charged with bank robbery whether you get away with anything or not. But the Supreme Court’s new ruling turns this on its head and the result is arbitrary.

Assume that you have two teenagers, both age 17. Teenager A pulls out a gun and shoots another person. Teenager B does the same. Both empty the clip with the intent of killing the person they are shooting at. The person shot by Teenager A dies. The person shot by Teenager B does not die. Under the Supreme Court’s new ruling, Teenager A can be locked up for life, whereas Teenager B can not. Does that make sense? Both had the same intent. Both took the same actions. Teenager B is merely lucky that the person did not die. Distinctions like this are arbitrary and discredit the law.

Moreover, intent has always mattered under the law. Indeed, there are defenses like self defense that are entirely based on intent. Similarly, the law often enhances the punishment level where the criminal’s intent was evil. Yet, the Supreme Court’s new ruling ignores intent and looks only to the outcome and age of the criminal, and consequently, the Court reaches a bizarre result.

Let’s change the scenario from above. Teenager A pulls out a gun and shoots someone. The case is arguably self defense, but the jury doesn’t buy it. Teenager A can be sentenced to life in prison without parole. Meanwhile, Teenager B kidnaps, rapes and tortures a child. Teenager B then shoots the child and leaves the child to die. But the child does not die. The child is, instead, left paralyzed, in permanent pain and mentally disabled. Teenager B cannot be sentenced to life in prison. Does that make sense? Under what standard can we consider Teenager A to be a greater danger to society or more depraved that Teenager B?

Age Is An Artificial Distinction

Finally, drawing a line between the ages of 17 and 18 is an arbitrary and senseless distinction. Eighteen was chosen as the age of majority eons ago for the sole purpose of creating clear lines in the law. Below that age, you had no legal rights. Beyond that age, you did. The reason 18 was chosen (it used to be 21) was that it was assumed that 18 (21) was the age where you finally matured into an adult and that you could understand your actions. But there is nothing magical about the age of 18, nor is 18 even the age of majority in all countries; in some countries it is as low as 14. Thus, there is no logical reason for picking 18.

Once again, assume two teenagers. Teenager A turned 18 years old today. Teenager B is 17 years and 364 days old. They commit the same crime, together. Teenager A can be sentenced to life in jail with no parole. Teenager B cannot. What possible difference can that one day make? Shouldn’t the Court be concerned with determining whether or not the teenagers were aware of the consequences of their actions? That’s the supposed reason they drew the cutoff at 18 in the first place. So why draw the distinction using some arbitrary date set a thousand years ago rather than having teenage defendants examined to determine their competence?

Conclusion

This is the problem with weak reasoning. When a court looks at a case and abandons intellectual rigor to reach a particular result, it thinks it’s being fair and decent. But what it really is doing is making the system less fair and more arbitrary. This ruling creates a system where the truly twisted can escape justice because of the date of their birth, while less depraved others face greater punishments.

It will only be a matter of time before you see your first 60 Minutes show about some poor murdering teen who is in jail for life when other teens who tortured and maimed their victims are roaming free. When that liberal 60 Minutes anchor turns to the screen and asks you “how can we let such an unfair system exist,” look them straight in the eye and tell them “because a group of liberal judges wanted to make the system more fair, and this is what their illogic wrought.”


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Elena Kagan Is A "Racist"

As you know, whenever the left doesn’t like someone, they call them a racist. Yawn, whatever. And when that person also refuses to advocate adopting an Apartheid-like system of racial spoils and preferences in America? Then, I guess, they're double-racists? Well, get this, using the left's definition, it turns out that Elena Kagan is a racist. . . a dirty, dirty double-racist.

Ever since Martin Luther King said that he wished that we would judge people by the content of their character rather than the color of their skin, the left has been busy trying to make sure that the law judges people by their race without regard to their characters. Indeed, nothing obsesses the left more than separating people by race. And nothing angers them more than character tests.

But in the mid-1990s, a group of “New Democrats” appeared who felt that there was no way this country would ever move beyond race so long as we continued to give out legal protections, benefits, school seats, jobs, Congressional seats, and even government funding on the basis of race. Yeah, they were crazy like that. In fact, these people, who would have been considered dirty racists if they had been on the right, somehow managed to infiltrate the highest levels of the Clinton administration -- much to the chagrin of the old-line Apartheidists. . . er, civil rights types.

What this group argued was that it was counterproductive and harmful to the country to keep separating people by race and ensconcing race-based legal preferences into the law. Instead, they advocated using broad-based, color-blind assistance to help poor people, regardless of color, and limiting affirmative action to narrowly-tailored circumstances to remedy actual past discrimination. That’s almost the conservative view, if you drop the affirmative action crap.

So what does this have to do with Kagan? She was smack dab in the middle of this group of modern New Democrat bigots. Oh the humanity! Yep. And this isn’t sitting well with the race hustlers. Indeed, they have begun an angry “muttering” campaign against her, pointing our several damning facts:

1. She never did the kind of “civil rights” work that other Democrats do.

2. Not one single black person became a tenured or tenured-track professor at Harvard Law School while Elena “Bull Connor” Kagan guarded the doors as Dean.

3. Recently released memos from the Clinton Presidential Library and Dirty Book Store show that she “clashed with and sometimes mocked” Clinton’s advisers who were involved with Clinton’s initiative on race. As if these people know what true mocking is. One little whiner, Chris Edley, complained that Kagan ignored his efforts to contact her by phone, email and even “hallway greeting.” It got so bad that the poor dear threatened to resign and go work at UC Berkeley as the dean of their law school. Oh no! Hey Chris, if you read this (if you can read), give me a call and I’ll show you real mocking.

4. In November 1997, she co-authored a memo that said: “We believe that the central focus of the race initiative should be a race-neutral opportunity agenda that reflects these common values and aspirations.”

Well, I’ve never heard such unbelievably vile thoughts. And she wasn’t even done there: “The best hope for improving race relations and reducing racial disparities over the long term is a set of policies that expand opportunities across race lines and, in doing so, force the recognition of shared interests.”

The monster! This woman is worse than Hitler! What have you done Barack Obama? Have you no shame?! This woman clearly wants to set back the clock to the age of slavery.

In all seriousness, this is great news. If she follows through on these views, and there is no reason to think she won’t -- unless you want to believe that she’s gone through the last twenty years hiding her views in the hopes of one day sitting on the Court -- then she will push the court irretrievably to the right on race. And even if she doesn’t, we still don’t lose anything because we’re replacing one of the Court’s most liberal members. So the worst we can do is break even. But the left, the left has a lot to lose here. They could find themselves going from 4-5 to 3-6, from which they will probably not recover in our lifetimes.

Maybe there is something I like about Barack Obama after all?

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