Commentary Magazine


Topic: federal law

Appeals Court Orders DOJ to Clarify “Judicial Restraint” Position

An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.

CBS News reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

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An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.

CBS News reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Was this an honest request, or a political stunt? Obviously, the Obama administration’s position on this is relevant in this case. However, this is only going to feed into the latest contention from Democrats that there’s too much politicization in the courts. At Volokh Conspiracy, Orin Kerr writes that the 5th Circuit’s request was inappropriate, particularly since the DOJ lawyer had already responded to the question in court:

Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

President Obama has also clarified his comments since Monday, which could change the court’s mind about the order before the deadline tomorrow.

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Toomey Support for DADT Repeal Highlights a Conservative’s Independent Streak

The announcement that Pennsylvania Senator-elect Pat Toomey will support repeal of the Don’t Ask, Don’t Tell policy about gays in the military may signal the end of this pointless rule. Those who haven’t followed Toomey’s career may be surprised that a hard-core conservative Republican and devout pro-life Catholic like Toomey would support a gay-rights measure. But Toomey’s libertarian instincts and abhorrence of big government have led him to the correct conclusion that seeking to ban a portion of the population that might usefully serve their country is a mistake. Nor is this a new position for Toomey.

During his successful Senate campaign, Toomey made it clear that he wanted to end DADT. In fact, he mentioned it in an op-ed in the Pittsburgh Post-Gazette he wrote last summer in which he detailed why he would have voted against Elena Kagan’s nomination to the Supreme Court. In the piece, he criticized Kagan for banning military recruiters from Harvard Law School because of DADT. Toomey wrote:

I share the view that the “don’t ask, don’t tell,” policy regarding gay servicemen and women has outlived its usefulness and, subject to the military’s conclusion of the feasibility of removing it, I support its repeal. However, one’s disagreement with a federal law does not give one license to circumvent it.

While Toomey won’t be able to cast a vote on the repeal attempt during the lame-duck session of Congress, his willingness to do so after January may change the mathematics of this debate. Moreover, Toomey — whose reputation as a pro-life stalwart, Tea Party favorite, and libertarian hardliner on fiscal matters renders him largely impervious to attacks from the right — could help give cover to other wavering Republicans. Previously, the only Republicans to announce support for the end of DADT were the liberal Susan Collins and Olympia Snowe of Maine.

Toomey’s stand on gays in the military might put him in conflict with conservative culture-war advocates, who will lament his willingness to put this issue to rest. Indeed, this puts him at odds with Rick Santorum, the former Pennsylvania senator who has recently been beating the bushes in New Hampshire promoting a possible 2012 presidential candidacy (though not too many people are taking Santorum’s ego-trip of a campaign seriously). But the irony here is that six years ago, Santorum, the man who now proclaims himself as the true guardian of conservative values, did his best to torpedo Toomey’s primary challenge of liberal Arlen Specter. Though Santorum and President Bush urged Toomey to step aside, he wouldn’t compromise and stayed in the race, ultimately narrowly losing the primary to Specter. Six years later, Toomey, who stuck to his guns on his conservative principles, is now about to take the place of the turncoat Specter, who was beaten out for the Democratic nomination earlier this year.

Six years is a lifetime in politics, but Pennsylvania Democrats are already looking ahead to 2016, since they believe the election of a conservative like Toomey was a fluke that cannot be repeated. They may be right, but what we will see until then is a senator who denounces big government and actually means it. That may not earn Toomey many friends in a state that has long counted upon its representatives to fight for local special interests, something that Toomey is unlikely to do. But as we are seeing with the issue of gays in the military, Toomey’s principled independence is a factor that political observers ought not to take for granted.

The announcement that Pennsylvania Senator-elect Pat Toomey will support repeal of the Don’t Ask, Don’t Tell policy about gays in the military may signal the end of this pointless rule. Those who haven’t followed Toomey’s career may be surprised that a hard-core conservative Republican and devout pro-life Catholic like Toomey would support a gay-rights measure. But Toomey’s libertarian instincts and abhorrence of big government have led him to the correct conclusion that seeking to ban a portion of the population that might usefully serve their country is a mistake. Nor is this a new position for Toomey.

During his successful Senate campaign, Toomey made it clear that he wanted to end DADT. In fact, he mentioned it in an op-ed in the Pittsburgh Post-Gazette he wrote last summer in which he detailed why he would have voted against Elena Kagan’s nomination to the Supreme Court. In the piece, he criticized Kagan for banning military recruiters from Harvard Law School because of DADT. Toomey wrote:

I share the view that the “don’t ask, don’t tell,” policy regarding gay servicemen and women has outlived its usefulness and, subject to the military’s conclusion of the feasibility of removing it, I support its repeal. However, one’s disagreement with a federal law does not give one license to circumvent it.

While Toomey won’t be able to cast a vote on the repeal attempt during the lame-duck session of Congress, his willingness to do so after January may change the mathematics of this debate. Moreover, Toomey — whose reputation as a pro-life stalwart, Tea Party favorite, and libertarian hardliner on fiscal matters renders him largely impervious to attacks from the right — could help give cover to other wavering Republicans. Previously, the only Republicans to announce support for the end of DADT were the liberal Susan Collins and Olympia Snowe of Maine.

Toomey’s stand on gays in the military might put him in conflict with conservative culture-war advocates, who will lament his willingness to put this issue to rest. Indeed, this puts him at odds with Rick Santorum, the former Pennsylvania senator who has recently been beating the bushes in New Hampshire promoting a possible 2012 presidential candidacy (though not too many people are taking Santorum’s ego-trip of a campaign seriously). But the irony here is that six years ago, Santorum, the man who now proclaims himself as the true guardian of conservative values, did his best to torpedo Toomey’s primary challenge of liberal Arlen Specter. Though Santorum and President Bush urged Toomey to step aside, he wouldn’t compromise and stayed in the race, ultimately narrowly losing the primary to Specter. Six years later, Toomey, who stuck to his guns on his conservative principles, is now about to take the place of the turncoat Specter, who was beaten out for the Democratic nomination earlier this year.

Six years is a lifetime in politics, but Pennsylvania Democrats are already looking ahead to 2016, since they believe the election of a conservative like Toomey was a fluke that cannot be repeated. They may be right, but what we will see until then is a senator who denounces big government and actually means it. That may not earn Toomey many friends in a state that has long counted upon its representatives to fight for local special interests, something that Toomey is unlikely to do. But as we are seeing with the issue of gays in the military, Toomey’s principled independence is a factor that political observers ought not to take for granted.

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Memo to Congress: Do Nothing!

Gilbert and Sullivan made fun of the British House of Lords in Iolanthe thus:

When Wellington thrashed Bonaparte,

As every child can tell,

The House of Peers, throughout the war,

Did nothing in particular,

And did it very well.

The American Congress — not itself unknown for doing nothing in particular on occasion — has an opportunity in the next couple of weeks to do nothing at all and render the country a considerable service thereby.

What it needs to do nothing about is ethanol, one of the truly epic boondoggles in American history. As the ball falls in Times Square on New Year’s Eve, both the 45-cent-a-gallon tax credit on ethanol (which goes to companies that blend ethanol and gasoline, i.e., Shell, Exxon, et al.) and the 54-cent-a-gallon tariff on foreign ethanol will expire, unless Congress acts.

The 45-cent tax credit costs the government $5-6 billion a year and is opposed by such strange bedfellows as the Sierra Club and the National Taxpayers Union. Those in favor are, no surprise, ethanol producers and the farmers who grow the corn it is made from. The 54-cent tariff, which, of course, is paid by American consumers, keeps cheaper foreign (mostly Brazilian) ethanol out of the American market.

Ethanol was supposed to be the road to American energy independence (sticking it to big oil into the bargain), while cutting down on the risk to the environment from traditional oil drilling. But even Al Gore is now against it. “One of the reasons I made that mistake [of supporting subsidies for corn ethanol],” he recently said, “is that I paid particular attention to the farmers in my home state of Tennessee, and I had a certain fondness for the farmers in the state of Iowa because I was about to run for president.”

Since federal law now mandates that motor fuel contain 10 percent ethanol, both the tax credit and the tariff favor only the few (corn farmers and ethanol producers) at the expense of the many (taxpayers and drivers).

Once a tax or a credit is in place, it is often very hard to get it repealed, because the special interests benefited fight fiercely to see that it remains on the books, while the general interest does not fight nearly as hard to get senators and congressmen to vote to repeal. Political inertia is the lobbyist’s best friend. But in this case, Congress merely has to do nothing: let the tariff and the credit get lost in the hectic final days of the lame duck session and call it a job well done.

Even members of Congress should be able to that.

Gilbert and Sullivan made fun of the British House of Lords in Iolanthe thus:

When Wellington thrashed Bonaparte,

As every child can tell,

The House of Peers, throughout the war,

Did nothing in particular,

And did it very well.

The American Congress — not itself unknown for doing nothing in particular on occasion — has an opportunity in the next couple of weeks to do nothing at all and render the country a considerable service thereby.

What it needs to do nothing about is ethanol, one of the truly epic boondoggles in American history. As the ball falls in Times Square on New Year’s Eve, both the 45-cent-a-gallon tax credit on ethanol (which goes to companies that blend ethanol and gasoline, i.e., Shell, Exxon, et al.) and the 54-cent-a-gallon tariff on foreign ethanol will expire, unless Congress acts.

The 45-cent tax credit costs the government $5-6 billion a year and is opposed by such strange bedfellows as the Sierra Club and the National Taxpayers Union. Those in favor are, no surprise, ethanol producers and the farmers who grow the corn it is made from. The 54-cent tariff, which, of course, is paid by American consumers, keeps cheaper foreign (mostly Brazilian) ethanol out of the American market.

Ethanol was supposed to be the road to American energy independence (sticking it to big oil into the bargain), while cutting down on the risk to the environment from traditional oil drilling. But even Al Gore is now against it. “One of the reasons I made that mistake [of supporting subsidies for corn ethanol],” he recently said, “is that I paid particular attention to the farmers in my home state of Tennessee, and I had a certain fondness for the farmers in the state of Iowa because I was about to run for president.”

Since federal law now mandates that motor fuel contain 10 percent ethanol, both the tax credit and the tariff favor only the few (corn farmers and ethanol producers) at the expense of the many (taxpayers and drivers).

Once a tax or a credit is in place, it is often very hard to get it repealed, because the special interests benefited fight fiercely to see that it remains on the books, while the general interest does not fight nearly as hard to get senators and congressmen to vote to repeal. Political inertia is the lobbyist’s best friend. But in this case, Congress merely has to do nothing: let the tariff and the credit get lost in the hectic final days of the lame duck session and call it a job well done.

Even members of Congress should be able to that.

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Do Whatever They Want, but Not on Our Dime

NPR is quite properly on the receiving end of a jumbo backlash over the firing of Juan Williams. As this report details, the listeners’ complaints are pouring in. Moreover:

At least one station wants to distance itself from the firing. In Miami, WLRN general manager John Labonia said he was hearing dozens of complaints from angry citizens and loyal donors. He said one called to cancel a $1,000 pledge. The station’s fundraising drive had already ended when the furor erupted.

“We don’t want that negative halo of NPR’s decision to affect us, so we are making it perfectly clear that we were not part of this decision and we do not agree with it,” Labonia said. “It was a short-sighted and irresponsible decision by NPR.”

Republicans are threatening to cut off funding when Congress returns. NPR is nervous about the impact on the bottom line:

As for NPR’s headquarters operation, federal grants account for less than 2 percent — or $3.3 million — of its $166 million annual budget. It is funded primarily by its affiliates, corporate sponsors and major donors.

In a statement, Patricia Harrison, president and CEO of the Corporation for Public Broadcasting and a former co-chair of the Republican National Committee, said federal law gives public broadcasting stations “maximum freedom” from interference in their activities.

NPR’s [spokeswoman Dana Davis] Rehm warned that if Congress cut off funding, “stations across the country would be hurt by that and would have to make up that balance elsewhere. In many places that would be difficult to do.”

She said that threats to cut off funding are “inappropriate” but that NPR takes them seriously and is talking with its member stations. “Stations as a whole are not happy this is happening at this time,” she said. “They’re in a difficult situation.”

How could 2 percent of its budget have such devastating impact? Well, those stations also receive money from the Corporation for Public Broadcasting. But in any event, they’ve got lots of rich liberal donors.

And if it does cause hardship to the radio stations? I guess they’d have to put on programing that listeners actually like. It’s called the free market. With over 500 TV stations as well as satellite and over-the-air radio, why in the world do taxpayers need to pay for left-wing propaganda masquerading as news? Seriously, that’s what the New York Times, the Huffington Post, and Fox News’s cable competitors are there for.

NPR is quite properly on the receiving end of a jumbo backlash over the firing of Juan Williams. As this report details, the listeners’ complaints are pouring in. Moreover:

At least one station wants to distance itself from the firing. In Miami, WLRN general manager John Labonia said he was hearing dozens of complaints from angry citizens and loyal donors. He said one called to cancel a $1,000 pledge. The station’s fundraising drive had already ended when the furor erupted.

“We don’t want that negative halo of NPR’s decision to affect us, so we are making it perfectly clear that we were not part of this decision and we do not agree with it,” Labonia said. “It was a short-sighted and irresponsible decision by NPR.”

Republicans are threatening to cut off funding when Congress returns. NPR is nervous about the impact on the bottom line:

As for NPR’s headquarters operation, federal grants account for less than 2 percent — or $3.3 million — of its $166 million annual budget. It is funded primarily by its affiliates, corporate sponsors and major donors.

In a statement, Patricia Harrison, president and CEO of the Corporation for Public Broadcasting and a former co-chair of the Republican National Committee, said federal law gives public broadcasting stations “maximum freedom” from interference in their activities.

NPR’s [spokeswoman Dana Davis] Rehm warned that if Congress cut off funding, “stations across the country would be hurt by that and would have to make up that balance elsewhere. In many places that would be difficult to do.”

She said that threats to cut off funding are “inappropriate” but that NPR takes them seriously and is talking with its member stations. “Stations as a whole are not happy this is happening at this time,” she said. “They’re in a difficult situation.”

How could 2 percent of its budget have such devastating impact? Well, those stations also receive money from the Corporation for Public Broadcasting. But in any event, they’ve got lots of rich liberal donors.

And if it does cause hardship to the radio stations? I guess they’d have to put on programing that listeners actually like. It’s called the free market. With over 500 TV stations as well as satellite and over-the-air radio, why in the world do taxpayers need to pay for left-wing propaganda masquerading as news? Seriously, that’s what the New York Times, the Huffington Post, and Fox News’s cable competitors are there for.

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Dumbest Policy Response, 2010 Award

A significant mismatch of “policy” with “problem” arose yesterday in a speech by James Clapper, Obama’s new director of national intelligence (DNI), addressed to the audience of a Washington think tank. This AFP report summarizes Clapper’s thesis (emphasis added):

US President Barack Obama is full of “angst” over a “hemorrhage” of leaks of sensitive intelligence from government officials, the director of national intelligence said on Wednesday.

James Clapper, the new chief of the country’s spy services, also said that intelligence agencies would have to be more restrained about sharing information with each other as a result of the leaks, citing the recent release of secret files on the Afghan war by the WikiLeaks website.

To begin with, the allusion to WikiLeaks is a political strawman. Interagency intelligence sharing wasn’t the point of vulnerability in that leak, which involved a soldier leaking the tactical Army intelligence to which he had routine access. Limiting information sharing between agencies won’t stop that kind of leak. Nor is it the key to stopping the practice of higher-level political leaking. The political leakers of the George W. Bush years leaked classified information that was within their own agencies’ purview.

This policy gambit doesn’t compute. When the Clinton administration solidified the famous “wall” between FBI and CIA intelligence, the putative purpose was to protect civil liberties. The policy went too far, but it was at least grounded in an idea with some political merit. Americans should be protected against intelligence agencies sharing information about them outside the constraints of civil law.

But now the DNI wants to limit information sharing between agencies as a means of addressing the problem of leaks. There are not enough clichés to adequately express how absurd this is. There’s no evidence that information sharing, per se, is even the problem. Meanwhile, the alternative of investigating and prosecuting the leaks, as painfully and inconveniently as necessary to actually discourage them, doesn’t seem to occur to anyone. The leakers are, after all, committing felonies every time they leak the classified information they have sworn — on pain of punishment under federal law — to keep secure.

There is little appetite in Washington for prosecution and punishment, because political partisans, including members of Congress, find leaks a convenience. It’s valid, moreover, to point out that clamping down on leaks could be abused by an administration inclined to be overly secretive about policy in general. These countervailing factors, along with the presumptive privilege enjoyed by the media, will always discourage the systematic prosecution of leakers.

But reverting to a pre-9/11 posture respecting information sharing is too high a price to pay for the convenience of leaving these entrenched assumptions undisturbed, especially when information sharing isn’t the root of the problem in the first place. Congress needs to inquire promptly into the policy trend previewed this week by Clapper. It doesn’t make sense. Its dangers for the American people are obvious — and we can only hope that, as a signal of the Obama administration’s intentions, “dumb” is the worst thing it is.

A significant mismatch of “policy” with “problem” arose yesterday in a speech by James Clapper, Obama’s new director of national intelligence (DNI), addressed to the audience of a Washington think tank. This AFP report summarizes Clapper’s thesis (emphasis added):

US President Barack Obama is full of “angst” over a “hemorrhage” of leaks of sensitive intelligence from government officials, the director of national intelligence said on Wednesday.

James Clapper, the new chief of the country’s spy services, also said that intelligence agencies would have to be more restrained about sharing information with each other as a result of the leaks, citing the recent release of secret files on the Afghan war by the WikiLeaks website.

To begin with, the allusion to WikiLeaks is a political strawman. Interagency intelligence sharing wasn’t the point of vulnerability in that leak, which involved a soldier leaking the tactical Army intelligence to which he had routine access. Limiting information sharing between agencies won’t stop that kind of leak. Nor is it the key to stopping the practice of higher-level political leaking. The political leakers of the George W. Bush years leaked classified information that was within their own agencies’ purview.

This policy gambit doesn’t compute. When the Clinton administration solidified the famous “wall” between FBI and CIA intelligence, the putative purpose was to protect civil liberties. The policy went too far, but it was at least grounded in an idea with some political merit. Americans should be protected against intelligence agencies sharing information about them outside the constraints of civil law.

But now the DNI wants to limit information sharing between agencies as a means of addressing the problem of leaks. There are not enough clichés to adequately express how absurd this is. There’s no evidence that information sharing, per se, is even the problem. Meanwhile, the alternative of investigating and prosecuting the leaks, as painfully and inconveniently as necessary to actually discourage them, doesn’t seem to occur to anyone. The leakers are, after all, committing felonies every time they leak the classified information they have sworn — on pain of punishment under federal law — to keep secure.

There is little appetite in Washington for prosecution and punishment, because political partisans, including members of Congress, find leaks a convenience. It’s valid, moreover, to point out that clamping down on leaks could be abused by an administration inclined to be overly secretive about policy in general. These countervailing factors, along with the presumptive privilege enjoyed by the media, will always discourage the systematic prosecution of leakers.

But reverting to a pre-9/11 posture respecting information sharing is too high a price to pay for the convenience of leaving these entrenched assumptions undisturbed, especially when information sharing isn’t the root of the problem in the first place. Congress needs to inquire promptly into the policy trend previewed this week by Clapper. It doesn’t make sense. Its dangers for the American people are obvious — and we can only hope that, as a signal of the Obama administration’s intentions, “dumb” is the worst thing it is.

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Is There a Solution to Romney’s Dilemma?

ObamaCare is making life miserable for many Democrats on the 2010 ballot. But that is nothing compared to the fits it will cause Mitt Romney, should he, as is widely expected, run for president in 2012. This report explains:

“I guarantee that, at the top of everyone’s list on how to differentiate your guy from Mitt Romney, the top of the list is health care — until and unless he takes the opportunity to say, ‘We tried, and it didn’t work. The individual mandate at the heart of Obamacare and Romneycare was wrong,’” said Bill Pascoe, a Republican strategist who wrote a post on his blog earlier this year titled “Say Goodbye to Mitt.”

So far, anyway, Romney is showing no signs of backing down. His message is the same today as it was in March, when there was still hope that voters would warm up to the Obama legislation once it passed. Romney blasts the federal law as a takeover of health care, while defending the 2005 Massachusetts version. He argues the two are as different as night and day, despite their common and most reviled feature, the mandate on individuals to purchase insurance.

I don’t think that’s going to fly; nor do I think simply “apologizing” for what he considers his signature achievement (as many Republicans are urging him to) will carry the day. Since 2008, Romney seems to have settled into his own skin, showing expertise on economic issues and a solid grasp of foreign policy. He’s less defensive and more at ease with a focus on pro-growth policies. However, a reversal on health-care reform will simply revive the concerns about flip-flopping and sincerity that weighed him down in 2008. On this one, I agree with Brent Bozell’s take: “I don’t know of any other potential candidate who has as big of a potential single-issue problem as this one.”

Well, some say, John McCain overcame the concerns from the base regarding his stance on immigration and managed to win the nomination in 2008. Yes, but “Repeal immigration reform!” was not the party’s clarion call.

If ObamaCare is repealed or is effectively neutralized before the 2012 primary season heats up, might that help Romney’s predicament? Perhaps, but as that debate rages, Romney will be queried as to where he stands and why he presumably favors the repeal of ObamaCare but not of RomneyCare.

Perhaps there is a more compelling distinction Romney can make between the president’s plan and his own. But sometimes there is no “solution” to a politician’s dilemma. Indeed, the upcoming tsunami that will wipe out many Democrats will testify to the proposition that officials can’t run from their records. If they are fundamentally out of sync with voters on a key issue, there’s no amount of clever packaging that will help them.

ObamaCare is making life miserable for many Democrats on the 2010 ballot. But that is nothing compared to the fits it will cause Mitt Romney, should he, as is widely expected, run for president in 2012. This report explains:

“I guarantee that, at the top of everyone’s list on how to differentiate your guy from Mitt Romney, the top of the list is health care — until and unless he takes the opportunity to say, ‘We tried, and it didn’t work. The individual mandate at the heart of Obamacare and Romneycare was wrong,’” said Bill Pascoe, a Republican strategist who wrote a post on his blog earlier this year titled “Say Goodbye to Mitt.”

So far, anyway, Romney is showing no signs of backing down. His message is the same today as it was in March, when there was still hope that voters would warm up to the Obama legislation once it passed. Romney blasts the federal law as a takeover of health care, while defending the 2005 Massachusetts version. He argues the two are as different as night and day, despite their common and most reviled feature, the mandate on individuals to purchase insurance.

I don’t think that’s going to fly; nor do I think simply “apologizing” for what he considers his signature achievement (as many Republicans are urging him to) will carry the day. Since 2008, Romney seems to have settled into his own skin, showing expertise on economic issues and a solid grasp of foreign policy. He’s less defensive and more at ease with a focus on pro-growth policies. However, a reversal on health-care reform will simply revive the concerns about flip-flopping and sincerity that weighed him down in 2008. On this one, I agree with Brent Bozell’s take: “I don’t know of any other potential candidate who has as big of a potential single-issue problem as this one.”

Well, some say, John McCain overcame the concerns from the base regarding his stance on immigration and managed to win the nomination in 2008. Yes, but “Repeal immigration reform!” was not the party’s clarion call.

If ObamaCare is repealed or is effectively neutralized before the 2012 primary season heats up, might that help Romney’s predicament? Perhaps, but as that debate rages, Romney will be queried as to where he stands and why he presumably favors the repeal of ObamaCare but not of RomneyCare.

Perhaps there is a more compelling distinction Romney can make between the president’s plan and his own. But sometimes there is no “solution” to a politician’s dilemma. Indeed, the upcoming tsunami that will wipe out many Democrats will testify to the proposition that officials can’t run from their records. If they are fundamentally out of sync with voters on a key issue, there’s no amount of clever packaging that will help them.

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ObamaCare, Missouri, and the Coming Inflection Point

What happened in Missouri yesterday is quite remarkable. By nearly a 3-to-1 margin, voters rejected a key provision of President Obama’s health-care law. More than 70 percent of Missouri voters backed a ballot measure, Proposition C, that would prohibit the government from requiring people to have health insurance or from penalizing them for not having it.

“It is likely to give Republicans a chance to brag about the unpopularity of ObamaCare,” Karen Ball of Time reports, “but the vote will be largely symbolic.” (Courts will decide whether Missouri and other states can legally trump federal law and exempt citizens from the mandate to buy insurance.)

Symbolic is one way to describe Tuesday’s vote; ominous (for the Democrats) is another.

This is yet one more electoral manifestation of the dismal polling numbers the Democrats have been facing for many months now. We saw rising popular opposition to ObamaCare throughout last summer, which many liberals ignored or ridiculed. Then came the gubernatorial elections in Virginia and New Jersey and the Senate election Massachusetts. Since then the opposition to ObamaCare specifically, and to Obama more generally, has increased; as a result we saw the 40-plus point trouncing in Missouri, a margin far higher than most people anticipated.

It is hard to overstate the toxicity of the Obama agenda. Losing a net total of 65 or more Democratic House seats is now possible (if not yet likely). We are less than 100 days away from what looks to be an inflection point, one of those rare mid-term elections that alter the trajectory of American politics.

What happened in Missouri yesterday is quite remarkable. By nearly a 3-to-1 margin, voters rejected a key provision of President Obama’s health-care law. More than 70 percent of Missouri voters backed a ballot measure, Proposition C, that would prohibit the government from requiring people to have health insurance or from penalizing them for not having it.

“It is likely to give Republicans a chance to brag about the unpopularity of ObamaCare,” Karen Ball of Time reports, “but the vote will be largely symbolic.” (Courts will decide whether Missouri and other states can legally trump federal law and exempt citizens from the mandate to buy insurance.)

Symbolic is one way to describe Tuesday’s vote; ominous (for the Democrats) is another.

This is yet one more electoral manifestation of the dismal polling numbers the Democrats have been facing for many months now. We saw rising popular opposition to ObamaCare throughout last summer, which many liberals ignored or ridiculed. Then came the gubernatorial elections in Virginia and New Jersey and the Senate election Massachusetts. Since then the opposition to ObamaCare specifically, and to Obama more generally, has increased; as a result we saw the 40-plus point trouncing in Missouri, a margin far higher than most people anticipated.

It is hard to overstate the toxicity of the Obama agenda. Losing a net total of 65 or more Democratic House seats is now possible (if not yet likely). We are less than 100 days away from what looks to be an inflection point, one of those rare mid-term elections that alter the trajectory of American politics.

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The Incredibly Unpopular Individual Mandate

It doesn’t have the force of law, but this is a telling rebuke of the president:

Missouri voters on Tuesday overwhelmingly rejected a key provision of President Barack Obama’s health care law, sending a clear message of discontent to Washington and Democrats less than 100 days before the midterm elections.

With about 70 percent of the vote counted late Tuesday, nearly three-quarters of voters threw their support behind a ballot measure, Proposition C, that would prohibit the government from requiring people to have health insurance or from penalizing them for not having it. … Tuesday’s vote was seen as largely symbolic because federal law generally trumps state law. But it was also seen as a sign of growing voter disillusionment with federal policies and a show of strength by conservatives and the tea party movement.

Three-quarters? It is astounding, really, in a country divided bitterly over so many things that the most popular and unifying issue may be repeal of ObamaCare’s central feature. Other states have or will pass similar measures. Will all this magically disappear by 2012, or will the Republican nominee — whoever he or she may be (and it won’t be Mitt Romney if he doesn’t get on board) — have a huge, broad coalition of support for ripping out Obama’s “historic achievement”?

The individual mandate is for many on the left (Don’t force me to buy a plan from Big Insurance!) and the right (Don’t force me to buy what I don’t want!) a sore point, a reminder of Obama’s statist-corporatist agenda. We are now seeing just how many Americans across the political spectrum want it abolished before it goes into effect. It’s almost like “Repeal and Reform!” could be a popular campaign slogan.

It doesn’t have the force of law, but this is a telling rebuke of the president:

Missouri voters on Tuesday overwhelmingly rejected a key provision of President Barack Obama’s health care law, sending a clear message of discontent to Washington and Democrats less than 100 days before the midterm elections.

With about 70 percent of the vote counted late Tuesday, nearly three-quarters of voters threw their support behind a ballot measure, Proposition C, that would prohibit the government from requiring people to have health insurance or from penalizing them for not having it. … Tuesday’s vote was seen as largely symbolic because federal law generally trumps state law. But it was also seen as a sign of growing voter disillusionment with federal policies and a show of strength by conservatives and the tea party movement.

Three-quarters? It is astounding, really, in a country divided bitterly over so many things that the most popular and unifying issue may be repeal of ObamaCare’s central feature. Other states have or will pass similar measures. Will all this magically disappear by 2012, or will the Republican nominee — whoever he or she may be (and it won’t be Mitt Romney if he doesn’t get on board) — have a huge, broad coalition of support for ripping out Obama’s “historic achievement”?

The individual mandate is for many on the left (Don’t force me to buy a plan from Big Insurance!) and the right (Don’t force me to buy what I don’t want!) a sore point, a reminder of Obama’s statist-corporatist agenda. We are now seeing just how many Americans across the political spectrum want it abolished before it goes into effect. It’s almost like “Repeal and Reform!” could be a popular campaign slogan.

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ObamaCare Lawsuit Clears First Hurdle

There was a significant development in the ObamaCare lawsuit today. The attorney general of Virginia Ken Cuccinelli put out the following statement:

A federal judge ruled today that Virginia does indeed have standing to bring its lawsuit seeking to invalidate the federal Patient Protection and Affordable Care Act.  The judge also ruled that Virginia had stated a legally sufficient claim in its complaint.  In doing so, federal district court judge Henry E. Hudson denied the federal government’s motion to dismiss the commonwealth’s suit. …

The U.S. Department of Justice argued that Virginia lacked the standing to bring a suit, that the suit is premature, and that the federal government had the power under the U.S. Constitution to mandate that citizens must be covered by government-approved health insurance or pay a monetary penalty.

In denying the motion to dismiss, Judge Hudson found that Virginia had alleged a legally recognized injury to its sovereignty, given the government’s assertion that the federal law invalidates a Virginia law, the Health Care Freedom Act. …

The Court recognized that the federal health care law and its associated penalty were literally unprecedented. Specifically, the Court wrote that “[n]o reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”

Well, well. It seems that the conservative scholars were right, and those arguing a legal challenge was frivolous were wrong. Moreover, it is not simply a procedural ruling on standing or “ripeness” (that is, whether there is an actual case at present). Todd Gaziano of the Heritage Foundation explains:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED. … Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Obama’s “historic” accomplishment is both legally and politically vulnerable. (Republicans aren’t waiting for the courts to rule it unconstitutional and are thinking up ways to defund ObamaCare.) It seems there really are limits to the left’s statist ambitions.

There was a significant development in the ObamaCare lawsuit today. The attorney general of Virginia Ken Cuccinelli put out the following statement:

A federal judge ruled today that Virginia does indeed have standing to bring its lawsuit seeking to invalidate the federal Patient Protection and Affordable Care Act.  The judge also ruled that Virginia had stated a legally sufficient claim in its complaint.  In doing so, federal district court judge Henry E. Hudson denied the federal government’s motion to dismiss the commonwealth’s suit. …

The U.S. Department of Justice argued that Virginia lacked the standing to bring a suit, that the suit is premature, and that the federal government had the power under the U.S. Constitution to mandate that citizens must be covered by government-approved health insurance or pay a monetary penalty.

In denying the motion to dismiss, Judge Hudson found that Virginia had alleged a legally recognized injury to its sovereignty, given the government’s assertion that the federal law invalidates a Virginia law, the Health Care Freedom Act. …

The Court recognized that the federal health care law and its associated penalty were literally unprecedented. Specifically, the Court wrote that “[n]o reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”

Well, well. It seems that the conservative scholars were right, and those arguing a legal challenge was frivolous were wrong. Moreover, it is not simply a procedural ruling on standing or “ripeness” (that is, whether there is an actual case at present). Todd Gaziano of the Heritage Foundation explains:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED. … Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Obama’s “historic” accomplishment is both legally and politically vulnerable. (Republicans aren’t waiting for the courts to rule it unconstitutional and are thinking up ways to defund ObamaCare.) It seems there really are limits to the left’s statist ambitions.

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Flotsam and Jetsam

The local Pennsylvania media find Joe Sestak’s answers on earmarks to be all wet (“a vague, disingenuous attempt to polish his own credentials”): “The Democratic congressman and Senate candidate should work a little harder to reconcile taking campaign contributions from those benefiting from federal ‘earmarks’ (which direct money to be spent on specific projects) while claiming ‘a personal policy’ against doing so.”

As hopes for direct peace talks slip away, Hillary frantically “burns up the phone lines” to the players in the Middle East.

Obama’s approval ratings in Gallup continue to nosedive (45% approval, 49% disapproval).

A federal-court judge torpedoes the Arizona immigration law (a ruling certain to be appealed): “Judge [Susan] Bolton took aim at the parts of the law that have generated the most controversy, issuing a preliminary injunction against sections that called for police officers to check a person’s immigration status while enforcing other laws and that required immigrants to carry their papers at all times. Judge [Susan] Bolton put those sections on hold while she continued to hear the larger issues in the challenges to the law. ‘Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,’ she said. ‘There is a substantial likelihood that officers will wrongfully arrest legal resident aliens.’”

Democrats are awaiting the November wave – so what’s the message for avoiding a wipeout? The other guys are wackos. This is the argument: “The Republicans want to be mayors of crazy-town. They’ve embraced a fringe and proto-racist isolationist and ignorant conservative populism that has no solutions for fixing anything and the collective intelligence of a wine flask.” How can the voters resist?

Al Gore is in hot water: “Before all the unpleasantness, the former vice president was mainly known as the planet’s premiere environmentalist and anti-global-warming crusader. He has been a bestselling author, Oscar-winning filmmaker, successful businessman and, lest we forget, the man millions still believe should have been sworn in as president in January 2001. But now the 62-year-old Gore is tabloid fodder—notorious as a ‘crazed sex poodle.’”

Obama’s plea that he really isn’t anti-business is being drowned out: “Republicans and business groups led by the U.S. Chamber of Commerce have driven home the message that the Obama administration is curtailing private-sector growth. They point to tax increases proposed by the White House as well as an uncertain regulatory environment brought about by massive reforms to the healthcare sector and Wall Street. Businesses are said to be sitting on $2 trillion in income but are not hiring, partly because of the administration’s policies, according to Republicans.”

The local Pennsylvania media find Joe Sestak’s answers on earmarks to be all wet (“a vague, disingenuous attempt to polish his own credentials”): “The Democratic congressman and Senate candidate should work a little harder to reconcile taking campaign contributions from those benefiting from federal ‘earmarks’ (which direct money to be spent on specific projects) while claiming ‘a personal policy’ against doing so.”

As hopes for direct peace talks slip away, Hillary frantically “burns up the phone lines” to the players in the Middle East.

Obama’s approval ratings in Gallup continue to nosedive (45% approval, 49% disapproval).

A federal-court judge torpedoes the Arizona immigration law (a ruling certain to be appealed): “Judge [Susan] Bolton took aim at the parts of the law that have generated the most controversy, issuing a preliminary injunction against sections that called for police officers to check a person’s immigration status while enforcing other laws and that required immigrants to carry their papers at all times. Judge [Susan] Bolton put those sections on hold while she continued to hear the larger issues in the challenges to the law. ‘Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,’ she said. ‘There is a substantial likelihood that officers will wrongfully arrest legal resident aliens.’”

Democrats are awaiting the November wave – so what’s the message for avoiding a wipeout? The other guys are wackos. This is the argument: “The Republicans want to be mayors of crazy-town. They’ve embraced a fringe and proto-racist isolationist and ignorant conservative populism that has no solutions for fixing anything and the collective intelligence of a wine flask.” How can the voters resist?

Al Gore is in hot water: “Before all the unpleasantness, the former vice president was mainly known as the planet’s premiere environmentalist and anti-global-warming crusader. He has been a bestselling author, Oscar-winning filmmaker, successful businessman and, lest we forget, the man millions still believe should have been sworn in as president in January 2001. But now the 62-year-old Gore is tabloid fodder—notorious as a ‘crazed sex poodle.’”

Obama’s plea that he really isn’t anti-business is being drowned out: “Republicans and business groups led by the U.S. Chamber of Commerce have driven home the message that the Obama administration is curtailing private-sector growth. They point to tax increases proposed by the White House as well as an uncertain regulatory environment brought about by massive reforms to the healthcare sector and Wall Street. Businesses are said to be sitting on $2 trillion in income but are not hiring, partly because of the administration’s policies, according to Republicans.”

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RE: What Would Reagan Have Thought?

Jennifer Rubin draws attention to the elephant in the room — that is, the GOP’s unfortunate posturing toward immigration, of which John McCain has lately become the embodiment.

It should be of some consolation that before he could find someone to cast in the nativist role he sought, McCain had to do quite a bit of fruitless searching and, in the end, resort to “synthesizing” his ad from the scenery of a border town and the commentary of a sheriff from a different county. Indeed, the sheriff who enthusiastically confirms McCain’s bona fides as “one of us” — whatever that means — hails from Pinal county, not even on the border, while the ad is shot in Nogales, a border town in the county of Santa Cruz, whose sheriff, Antonio Estrada, has blasted the Arizona immigration bill in no uncertain terms:

“Local law enforcement has a great relationship with the Hispanic community, and something like this is really going to scare these people,” said [Sheriff] Estrada. “They’re going to look at us as immigration officers every time they see us.”

Clarence Dupnik, the sheriff of Pima — another county in Southern Arizona, which shares with Mexico the longest border in the state — has called the bill “disgusting,” “racist,” and “unnecessary.”

The ad merely reveals McCain to be a politician, evidently less principled than his supporters took him for in 2008. His presidential ambitions now thwarted, in order to at least not lose his Senate seat, he has gone to great lengths — as far as to endorse the anti-immigration bill of Arizona after having supported the pro-immigration bill of President Bush. But no matter that a politician should flip-flop. Most troubling is the fact that McCain judged this ad expedient because it can find a sympathetic audience among the GOP base.

Incendiary as some of them might be, it is hard to dismiss the complaints against the Arizona immigration bill, for it

makes it a state misdemeanor crime for an alien to be in Arizona without carrying registration documents required by federal law, and obligates police to make an attempt, when practicable during a “lawful stop, detention or arrest made by a law enforcement official,” to determine a person’s immigration status if there is reasonable suspicion that the person is an illegal alien. Police may arrest a person if there is probable cause that the person is an alien not in possession of required registration documents.

Therefore, the law relies for its execution on the discretion of law-enforcement agents, known to misfire even before the bill invested in them so much authority. Take, for example, the detention of a U.S. citizen of Hispanic descent in Phoenix a few months back:

Abdon was told he did not have enough paperwork on him when he pulled into a weigh station to have his commercial truck checked. He provided his commercial driver’s license and a social security number but ended up handcuffed.

An agent called his wife and she had to leave work to drive home and grab other documents like his birth certificate. …

Both were born in the United States and say they are now both infuriated that keeping important documents safely at home is no longer an option.

Jackie says, “It doesn’t feel like it’s a good way of life, to live with fear, even though we are okay, we are legal … still have to carry documents around.”

Disgraceful incidents such as this cannot but multiply now in Arizona. And it would be sad to see the fetish for birth certificates spread from the small lunatic band of “birthers,” who refuse to believe that President Obama is a natural-born U.S. citizen, into the broader base of the GOP, which seems to support the Arizona bill.

As a legal alien, I would shudder if such a bill as this came to pass in New York, where I live — though, on second thought, I’d have little to fear, since I am and look European. Indeed, does anyone think that racial profiling will not guide the application of this law? On what other grounds can one be reasonably suspected of being an illegal alien? It is easy for those Arizonans who can boast a porcelain complexion and a flawless accent to support the bill, for by virtue of such qualifications alone they will never be subjected to any inconvenience from it. Of course, it would be another thing entirely if the bill required that at a lawful stop, detention, or arrest anyone must be extensively probed for documentation. In that case, I’d love to hear the opinion of those who now support the bill and scoff indignantly at the charges of discrimination leveled against it.

Let’s not kid ourselves. Independently, even, of this disastrous bill, the GOP’s position on immigration needs serious rethinking. At its heart lies the nativist meme Jen mentioned, that of foreigners stealing American jobs — perhaps the only talking point many on the right share with the unionists on the left. Not only is it distasteful and wrongheaded, not only does it repulse immigrants, legal ones too, but it also undermines the right’s reputation for economic literacy. True, an immigrant gainfully employed takes a job. But he or she also patronizes other businesses while living in the country, thus creating other jobs — for Americans. A bigger population means greater economic activity and more jobs. Indeed, blaming immigrants for putting Americans out of work is as sound as blaming the young, in a population reproducing above replacement rate, of stealing their elders’ jobs. Ironically, the nativists who complain thus about immigrants are often the very same ones (think John Derbyshire, think Peter Brimelow) who, in so many words, lament the impending collapse of Western Civilization due to the white man’s failure to breed as diligently as they think he should.

Republicans had better not concede their position on immigration to the few Buchananite elements in their midst.

Jennifer Rubin draws attention to the elephant in the room — that is, the GOP’s unfortunate posturing toward immigration, of which John McCain has lately become the embodiment.

It should be of some consolation that before he could find someone to cast in the nativist role he sought, McCain had to do quite a bit of fruitless searching and, in the end, resort to “synthesizing” his ad from the scenery of a border town and the commentary of a sheriff from a different county. Indeed, the sheriff who enthusiastically confirms McCain’s bona fides as “one of us” — whatever that means — hails from Pinal county, not even on the border, while the ad is shot in Nogales, a border town in the county of Santa Cruz, whose sheriff, Antonio Estrada, has blasted the Arizona immigration bill in no uncertain terms:

“Local law enforcement has a great relationship with the Hispanic community, and something like this is really going to scare these people,” said [Sheriff] Estrada. “They’re going to look at us as immigration officers every time they see us.”

Clarence Dupnik, the sheriff of Pima — another county in Southern Arizona, which shares with Mexico the longest border in the state — has called the bill “disgusting,” “racist,” and “unnecessary.”

The ad merely reveals McCain to be a politician, evidently less principled than his supporters took him for in 2008. His presidential ambitions now thwarted, in order to at least not lose his Senate seat, he has gone to great lengths — as far as to endorse the anti-immigration bill of Arizona after having supported the pro-immigration bill of President Bush. But no matter that a politician should flip-flop. Most troubling is the fact that McCain judged this ad expedient because it can find a sympathetic audience among the GOP base.

Incendiary as some of them might be, it is hard to dismiss the complaints against the Arizona immigration bill, for it

makes it a state misdemeanor crime for an alien to be in Arizona without carrying registration documents required by federal law, and obligates police to make an attempt, when practicable during a “lawful stop, detention or arrest made by a law enforcement official,” to determine a person’s immigration status if there is reasonable suspicion that the person is an illegal alien. Police may arrest a person if there is probable cause that the person is an alien not in possession of required registration documents.

Therefore, the law relies for its execution on the discretion of law-enforcement agents, known to misfire even before the bill invested in them so much authority. Take, for example, the detention of a U.S. citizen of Hispanic descent in Phoenix a few months back:

Abdon was told he did not have enough paperwork on him when he pulled into a weigh station to have his commercial truck checked. He provided his commercial driver’s license and a social security number but ended up handcuffed.

An agent called his wife and she had to leave work to drive home and grab other documents like his birth certificate. …

Both were born in the United States and say they are now both infuriated that keeping important documents safely at home is no longer an option.

Jackie says, “It doesn’t feel like it’s a good way of life, to live with fear, even though we are okay, we are legal … still have to carry documents around.”

Disgraceful incidents such as this cannot but multiply now in Arizona. And it would be sad to see the fetish for birth certificates spread from the small lunatic band of “birthers,” who refuse to believe that President Obama is a natural-born U.S. citizen, into the broader base of the GOP, which seems to support the Arizona bill.

As a legal alien, I would shudder if such a bill as this came to pass in New York, where I live — though, on second thought, I’d have little to fear, since I am and look European. Indeed, does anyone think that racial profiling will not guide the application of this law? On what other grounds can one be reasonably suspected of being an illegal alien? It is easy for those Arizonans who can boast a porcelain complexion and a flawless accent to support the bill, for by virtue of such qualifications alone they will never be subjected to any inconvenience from it. Of course, it would be another thing entirely if the bill required that at a lawful stop, detention, or arrest anyone must be extensively probed for documentation. In that case, I’d love to hear the opinion of those who now support the bill and scoff indignantly at the charges of discrimination leveled against it.

Let’s not kid ourselves. Independently, even, of this disastrous bill, the GOP’s position on immigration needs serious rethinking. At its heart lies the nativist meme Jen mentioned, that of foreigners stealing American jobs — perhaps the only talking point many on the right share with the unionists on the left. Not only is it distasteful and wrongheaded, not only does it repulse immigrants, legal ones too, but it also undermines the right’s reputation for economic literacy. True, an immigrant gainfully employed takes a job. But he or she also patronizes other businesses while living in the country, thus creating other jobs — for Americans. A bigger population means greater economic activity and more jobs. Indeed, blaming immigrants for putting Americans out of work is as sound as blaming the young, in a population reproducing above replacement rate, of stealing their elders’ jobs. Ironically, the nativists who complain thus about immigrants are often the very same ones (think John Derbyshire, think Peter Brimelow) who, in so many words, lament the impending collapse of Western Civilization due to the white man’s failure to breed as diligently as they think he should.

Republicans had better not concede their position on immigration to the few Buchananite elements in their midst.

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The Buried Sestak Scandal

Because of the Gaza terrorist flotilla and the BP oil spill, the Joe Sestak job scandal has taken a back seat in news coverage — precisely what the White House intended when it released its counsel memo on the Friday before Memorial Day.

But in the words of Janet Napolitano, this is not a “one-off” thing. The Denver Post is on the Colorado version of SestakGate — involving Senate candidate Andrew Romanoff. The Post rightly suggests that the administration come clean on that one. But the media shows little interest in hassling Obama over allegations that, at worst, the White House violated federal law; and, at best, Obama has brought sleazy Chicago politics into the Oval Office.

Because of the Gaza terrorist flotilla and the BP oil spill, the Joe Sestak job scandal has taken a back seat in news coverage — precisely what the White House intended when it released its counsel memo on the Friday before Memorial Day.

But in the words of Janet Napolitano, this is not a “one-off” thing. The Denver Post is on the Colorado version of SestakGate — involving Senate candidate Andrew Romanoff. The Post rightly suggests that the administration come clean on that one. But the media shows little interest in hassling Obama over allegations that, at worst, the White House violated federal law; and, at best, Obama has brought sleazy Chicago politics into the Oval Office.

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No Executive Privilege Invoked by White House in Black Panther Case

The U.S. Commission on Civil Rights resumes its hearings tomorrow. On tap will be civil rights division chief Thomas Perez. Today the commission sent a letter to two Justice Department officials, which reads in part:

[T]his is to confirm your representation that there has been no formal assertion of executive privilege with regard to any of the items sought by the Commission pursuant to its discovery requests. As discussed, this matter needs to be clarified. In its response to the Commission’s discovery requests, the Department claimed deliberative process privilege with regard to the materials sought. As recognized by the courts, the deliberative process privilege is a subset of executive privilege and “does not shield documents that simply state or explain a decision the government has already made or protect the material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” See In re Sealed Case, 326 U.S. App. D.C. 276, 284, 121 F.3d 729, 737 (1997).

In short, the Justice Department can’t have it both ways. If Obama has not invoked executive privilege, there is no legal basis for refusing any requested documents or for declining to answer the commission’s questions completely. In prior correspondence to the Justice Department, the commission cited binding precedent from the Office of Legal Counsel — which presumably has not changed its view since Eric Holder arrived – that unless the president or a top official invokes executive privilege, there is no other statutory or common law basis available to the department that would justify refusing to disclose information. And indeed, there is a federal law requiring the executive branch to co-operate with the commission’s work.

So what will Perez do tomorrow? It remains to be seen whether he will continue to stonewall as the commission presses for a detailed explanation as to why the case was dismissed and who played a role in ordering the dismissal. Will he suggest that the department’s trial team of lawyers was incompetent or derelict in bringing the case against the New Black Panther Party? Surely the professional staff at Justice, including those attorneys in the appellate section that endorsed the trial team’s recommendation, would find that quite shocking. And if those career lawyers were not mistaken in their assessment of the law and the facts, then what was the basis for dismissing the case? Moreover, is this Justice Department committed to enforcing the civil rights laws even when minorities are the perpetrators of voter intimidation? It should be an interesting proceeding tomorrow.

The U.S. Commission on Civil Rights resumes its hearings tomorrow. On tap will be civil rights division chief Thomas Perez. Today the commission sent a letter to two Justice Department officials, which reads in part:

[T]his is to confirm your representation that there has been no formal assertion of executive privilege with regard to any of the items sought by the Commission pursuant to its discovery requests. As discussed, this matter needs to be clarified. In its response to the Commission’s discovery requests, the Department claimed deliberative process privilege with regard to the materials sought. As recognized by the courts, the deliberative process privilege is a subset of executive privilege and “does not shield documents that simply state or explain a decision the government has already made or protect the material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” See In re Sealed Case, 326 U.S. App. D.C. 276, 284, 121 F.3d 729, 737 (1997).

In short, the Justice Department can’t have it both ways. If Obama has not invoked executive privilege, there is no legal basis for refusing any requested documents or for declining to answer the commission’s questions completely. In prior correspondence to the Justice Department, the commission cited binding precedent from the Office of Legal Counsel — which presumably has not changed its view since Eric Holder arrived – that unless the president or a top official invokes executive privilege, there is no other statutory or common law basis available to the department that would justify refusing to disclose information. And indeed, there is a federal law requiring the executive branch to co-operate with the commission’s work.

So what will Perez do tomorrow? It remains to be seen whether he will continue to stonewall as the commission presses for a detailed explanation as to why the case was dismissed and who played a role in ordering the dismissal. Will he suggest that the department’s trial team of lawyers was incompetent or derelict in bringing the case against the New Black Panther Party? Surely the professional staff at Justice, including those attorneys in the appellate section that endorsed the trial team’s recommendation, would find that quite shocking. And if those career lawyers were not mistaken in their assessment of the law and the facts, then what was the basis for dismissing the case? Moreover, is this Justice Department committed to enforcing the civil rights laws even when minorities are the perpetrators of voter intimidation? It should be an interesting proceeding tomorrow.

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Conflict — What Conflict?

Some might find it off-putting that the “most ethical administration ever” (or is that the Congress?) would see its White House counsel Greg Craig representing the administration’s juiciest and most fortuitous target, Goldman Sachs. How can this happen? Politico reports:

“A former White House employee cannot appear before any unit of the Executive Office of the President on behalf of any client for 2 years—one year under federal law and another year under the pledge pursuant to the January 2009 ethics E0,” said a White House official.

The official also said that the White House had no contact with the SEC on the Goldman Sachs case. “The SEC by law is an independent agency that does not coordinate with the White House any part of their enforcement actions.”

Well how do we know there was no coordination? In fact, the entire Goldman strategy is that this was a political set-up from the very beginning:

An attempt to discredit the Securities and Exchange Commission by painting the case as tainted by politics because it was announced just as President Barack Obama was ramping up his push for financial regulatory reform, including a planned trip to New York on Thursday.

“The charges were brought in a manner calculated to achieve maximum impact at point of penetration,” a Goldman executive said.

Among the points Greg Palm, co-general counsel, plans to emphasize on the call is “how out of the ordinary the process was with the SEC,” the executive said. The SEC usually gives firms a chance to settle such charges before they are made public. Goldman executives say they had no such chance, and learned about the filing while watching CNBC.

So if the White House was meddling, or doing so with intermediaries, and this is central to Goldman’s defense, what is Craig doing litigating against the U.S. government?

Some might find it off-putting that the “most ethical administration ever” (or is that the Congress?) would see its White House counsel Greg Craig representing the administration’s juiciest and most fortuitous target, Goldman Sachs. How can this happen? Politico reports:

“A former White House employee cannot appear before any unit of the Executive Office of the President on behalf of any client for 2 years—one year under federal law and another year under the pledge pursuant to the January 2009 ethics E0,” said a White House official.

The official also said that the White House had no contact with the SEC on the Goldman Sachs case. “The SEC by law is an independent agency that does not coordinate with the White House any part of their enforcement actions.”

Well how do we know there was no coordination? In fact, the entire Goldman strategy is that this was a political set-up from the very beginning:

An attempt to discredit the Securities and Exchange Commission by painting the case as tainted by politics because it was announced just as President Barack Obama was ramping up his push for financial regulatory reform, including a planned trip to New York on Thursday.

“The charges were brought in a manner calculated to achieve maximum impact at point of penetration,” a Goldman executive said.

Among the points Greg Palm, co-general counsel, plans to emphasize on the call is “how out of the ordinary the process was with the SEC,” the executive said. The SEC usually gives firms a chance to settle such charges before they are made public. Goldman executives say they had no such chance, and learned about the filing while watching CNBC.

So if the White House was meddling, or doing so with intermediaries, and this is central to Goldman’s defense, what is Craig doing litigating against the U.S. government?

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ObamaCare Bedevils Romney

Mitt Romney is the most experienced presidential candidate of the 2012 aspirants, having slogged through the 2008 primary and pre-primary campaigns. He has written a book and developed an easier, less stilted demeanor and public persona. He speaks authoritatively on foreign policy. But he has a big problem: ObamaCare looks a good deal like the ex-governor’s RomneyCare, his signature health-care legislation. A former advisor and MIT economist Jonathan Gruber remarks: “If any one person in the world deserves credit for where we are now (with the passage of the new federal law) it’s Mitt Romney.” Yikes.

Romney’s plan includes mandatory insurance for individuals — an anathema to conservatives. And the plan faces hard realities, which conservatives predict will befall ObamaCare too. The Wall Street Journal editors explain:

Three of largest four — Blue Cross Blue Shield, Tufts Health Plan and Fallon Community Health — posted operating losses in 2009. In an emergency suit heard in Boston superior court yesterday, they argued that the arbitrary rate cap will result in another $100 million in collective losses this year and make it impossible to pay the anticipated cost of claims. It may even threaten the near-term solvency of some companies.

So until the matter is resolved, the insurers have simply stopped selling new policies. A court decision is expected by Monday, but state officials have demanded that the insurers — under the threat of fines and other regulatory punishments — resume offering quotes by today and to revert to year-old base premiums. Let that one sink in: Mr. Patrick has made the health insurance business so painful the government actually has to order private companies to sell their products (albeit at sub-market costs). . . .

On top of that, like ObamaCare, integral to the Massachusetts overhaul are mandates that require insurers to cover anyone who applies regardless of health status or pre-existing conditions and to charge everyone about the same rates. This allows people to wait until they’re about to incur major medical expenses before buying insurance and transfer the costs to everyone else. This week Blue Cross Blue Shield reported a big uptick in short-term customers who ran up costs more than four times the average, only to drop the coverage within three months.

Romney cites the differences between the bills — his contained no massive tax hike and didn’t savage Medicare. Mostly, he’s focused on the Tenth Amendment — the argument that the federal government shouldn’t and can’t constitutionally occupy the health-care field, which has been subject to state regulation. It’s far from clear that this will be enough to satisfy the Republican primary electorate, which is going to hear Romney’s opponents attack him for passing ObamaCare-lite. They likely will be proposing market-based plans akin to those which the GOP proposed in Congress. But for whatever reason — perhaps concern about reviving the flip-flop label — Romney isn’t disowning his past effort and he’ll have to withstand the onslaught if he’s going to do better than second place this time around. Every candidate has handicaps but in an election in which the Republicans are trying to elect a president to rip out ObamaCare before it takes root, Romney will have his work cut out for him, living down what was once a selling point for his candidacy.

Mitt Romney is the most experienced presidential candidate of the 2012 aspirants, having slogged through the 2008 primary and pre-primary campaigns. He has written a book and developed an easier, less stilted demeanor and public persona. He speaks authoritatively on foreign policy. But he has a big problem: ObamaCare looks a good deal like the ex-governor’s RomneyCare, his signature health-care legislation. A former advisor and MIT economist Jonathan Gruber remarks: “If any one person in the world deserves credit for where we are now (with the passage of the new federal law) it’s Mitt Romney.” Yikes.

Romney’s plan includes mandatory insurance for individuals — an anathema to conservatives. And the plan faces hard realities, which conservatives predict will befall ObamaCare too. The Wall Street Journal editors explain:

Three of largest four — Blue Cross Blue Shield, Tufts Health Plan and Fallon Community Health — posted operating losses in 2009. In an emergency suit heard in Boston superior court yesterday, they argued that the arbitrary rate cap will result in another $100 million in collective losses this year and make it impossible to pay the anticipated cost of claims. It may even threaten the near-term solvency of some companies.

So until the matter is resolved, the insurers have simply stopped selling new policies. A court decision is expected by Monday, but state officials have demanded that the insurers — under the threat of fines and other regulatory punishments — resume offering quotes by today and to revert to year-old base premiums. Let that one sink in: Mr. Patrick has made the health insurance business so painful the government actually has to order private companies to sell their products (albeit at sub-market costs). . . .

On top of that, like ObamaCare, integral to the Massachusetts overhaul are mandates that require insurers to cover anyone who applies regardless of health status or pre-existing conditions and to charge everyone about the same rates. This allows people to wait until they’re about to incur major medical expenses before buying insurance and transfer the costs to everyone else. This week Blue Cross Blue Shield reported a big uptick in short-term customers who ran up costs more than four times the average, only to drop the coverage within three months.

Romney cites the differences between the bills — his contained no massive tax hike and didn’t savage Medicare. Mostly, he’s focused on the Tenth Amendment — the argument that the federal government shouldn’t and can’t constitutionally occupy the health-care field, which has been subject to state regulation. It’s far from clear that this will be enough to satisfy the Republican primary electorate, which is going to hear Romney’s opponents attack him for passing ObamaCare-lite. They likely will be proposing market-based plans akin to those which the GOP proposed in Congress. But for whatever reason — perhaps concern about reviving the flip-flop label — Romney isn’t disowning his past effort and he’ll have to withstand the onslaught if he’s going to do better than second place this time around. Every candidate has handicaps but in an election in which the Republicans are trying to elect a president to rip out ObamaCare before it takes root, Romney will have his work cut out for him, living down what was once a selling point for his candidacy.

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Is It Worth It?

Virginia Attorney General Ken Cuccinelli is pushing back against Democrats’ complaints that he is wasting the Commonwealth’s money in suing to declare ObamaCare unconstitutional. Well, aside from the obligation of all elected officials to defend the Constitution, it seems it’s as smart a use of public funds as one could possibly find. In a news release, the AG explains:

The court filing fee for the case of Commonwealth v. Kathleen Sebelius in the United States District Court for the Eastern District of Virginia was $350.  There has been no additional cost above this amount, as the litigation is being handled entirely by the attorney general’s staff.  The office also does not expect much outside cost, as outside counsel has not been retained.

Additionally, since the case is centered around a purely legal constitutional argument, the office anticipates no material costs for things such as discovery, witnesses, etc.

If the suit is successful, the savings to the Commonwealth of Virginia alone is estimated by the governor’s office to be about $1.1 billion from 2015-2022.  This is because if the health care reform act remains law, Virginia would realize an additional $1.1 billion in costs for the new Medicaid requirements called for in the act.  This savings figure does not take in to account the tax and fee savings to individuals and businesses if the federal law is struck down as unconstitutional.

That is $1.1 billion for a middle-sized state. If you think the fiscal impact of ObamaCare and the hue and cry resulting from the gush of red ink it will send spewing forth will be limited to the federal government, think again. All 50 states and  their elected officials will be coping with this — or trying to figure out how to rip it out before it wrecks not only the federal budget but state and local ones as well.

Virginia Attorney General Ken Cuccinelli is pushing back against Democrats’ complaints that he is wasting the Commonwealth’s money in suing to declare ObamaCare unconstitutional. Well, aside from the obligation of all elected officials to defend the Constitution, it seems it’s as smart a use of public funds as one could possibly find. In a news release, the AG explains:

The court filing fee for the case of Commonwealth v. Kathleen Sebelius in the United States District Court for the Eastern District of Virginia was $350.  There has been no additional cost above this amount, as the litigation is being handled entirely by the attorney general’s staff.  The office also does not expect much outside cost, as outside counsel has not been retained.

Additionally, since the case is centered around a purely legal constitutional argument, the office anticipates no material costs for things such as discovery, witnesses, etc.

If the suit is successful, the savings to the Commonwealth of Virginia alone is estimated by the governor’s office to be about $1.1 billion from 2015-2022.  This is because if the health care reform act remains law, Virginia would realize an additional $1.1 billion in costs for the new Medicaid requirements called for in the act.  This savings figure does not take in to account the tax and fee savings to individuals and businesses if the federal law is struck down as unconstitutional.

That is $1.1 billion for a middle-sized state. If you think the fiscal impact of ObamaCare and the hue and cry resulting from the gush of red ink it will send spewing forth will be limited to the federal government, think again. All 50 states and  their elected officials will be coping with this — or trying to figure out how to rip it out before it wrecks not only the federal budget but state and local ones as well.

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Racism by Any Other Name

The Washington Post ombudsman Andrew Alexander is out to gently chide his employer for not doing better on “diversity.” In the process, he reveals the discriminatory practices and mindset at the heart of seemingly high-minded “diversity” programs.

First comes the revelation that Post managers are being instructed to hire or consider hiring based on race or suffer adverse treatment themselves: “The Post’s top editors were warned in a memo that they needed to expand newsroom diversity ‘or suffer the consequences.’” It is not legally acceptable to say, “Hire more minorities or your job is in jeopardy,” so it is dressed up in diversity- speak, but the mandate is clear. It’s plain that we’re talking about more than simply removing barriers to hiring minorities or expanding the Post’s hiring beyond mostly white, Ivy League graduates. Alexander fesses up, quoting Peter Perl, who oversees newsroom personnel: “Pools of job candidates must include minorities, he said, adding, ‘It’s a mandate, and every manager here knows it.’” It’s the result — the headcount — that matters:

Minorities are 43 percent of The Post’s circulation area, and a large part of the region is edging toward “majority minority” status. For The Post, being “good on diversity” isn’t enough. [Executive Editor Marcus] Brauchli and his leadership team acknowledged the same in a note to the staff last Monday. “We are in danger of losing ground if we do not consistently try to recruit the best minority journalists,” they wrote.

Sorry guys, but that violates federal  law, which prohibits hiring on the basis of race — no matter what laudatory goal the proponents think they are pursuing.

And next comes the noxious justification for hiring by race:

“You can’t cover your community unless you look like your community,” said Bobbi Bowman, a former Post reporter and editor who is a diversity consultant for ASNE. (Full disclosure: I sit on its board). “If you have a community of basketball players, it’s difficult for a newsroom of opera lovers to cover them.”

The Washington area has an exploding Spanish-speaking population. Yet Hispanics on The Post’s staff include only eight reporters and four supervising editors. Similarly, African Americans account for about 12 percent of the staff, but the African American percentage of the population in parts of The Post’s core circulation area is more than four times greater.

Imagine saying that only whites can cover certain neighborhoods or particular beats. The lawsuits would be flying, and the pickets would be gathering outside the Post’s offices. The Post seems to argue for re-segregation of the news: African American cover “their” neighborhood and whites their own. (And does the Post management actually imagine that only Hispanics can speak Spanish?) This is the voice of “wise Latina” Sonia Sotomayor, who assumes that ability, skills, intellectual perspective, and empathy are determined by race or ethnicity. (“Predictably, what is ‘news’ risks being seen through a white prism.”)

Alexander, seemingly inured to the perniciousness of what he is writing, sums up:

“You use diversity as an advantage in these economic times to get a leg up on the next guy,” said former Post reporter Richard Prince, who writes “Journal-isms,” an online column about minorities and the media. Or you suffer the consequences.

Welcome to the post-racial world in which race is a weapon to be wielded against competitors and a stick with which to beat hiring managers. No, it’s not remotely legal, and it is nothing short of shameful.

The Washington Post ombudsman Andrew Alexander is out to gently chide his employer for not doing better on “diversity.” In the process, he reveals the discriminatory practices and mindset at the heart of seemingly high-minded “diversity” programs.

First comes the revelation that Post managers are being instructed to hire or consider hiring based on race or suffer adverse treatment themselves: “The Post’s top editors were warned in a memo that they needed to expand newsroom diversity ‘or suffer the consequences.’” It is not legally acceptable to say, “Hire more minorities or your job is in jeopardy,” so it is dressed up in diversity- speak, but the mandate is clear. It’s plain that we’re talking about more than simply removing barriers to hiring minorities or expanding the Post’s hiring beyond mostly white, Ivy League graduates. Alexander fesses up, quoting Peter Perl, who oversees newsroom personnel: “Pools of job candidates must include minorities, he said, adding, ‘It’s a mandate, and every manager here knows it.’” It’s the result — the headcount — that matters:

Minorities are 43 percent of The Post’s circulation area, and a large part of the region is edging toward “majority minority” status. For The Post, being “good on diversity” isn’t enough. [Executive Editor Marcus] Brauchli and his leadership team acknowledged the same in a note to the staff last Monday. “We are in danger of losing ground if we do not consistently try to recruit the best minority journalists,” they wrote.

Sorry guys, but that violates federal  law, which prohibits hiring on the basis of race — no matter what laudatory goal the proponents think they are pursuing.

And next comes the noxious justification for hiring by race:

“You can’t cover your community unless you look like your community,” said Bobbi Bowman, a former Post reporter and editor who is a diversity consultant for ASNE. (Full disclosure: I sit on its board). “If you have a community of basketball players, it’s difficult for a newsroom of opera lovers to cover them.”

The Washington area has an exploding Spanish-speaking population. Yet Hispanics on The Post’s staff include only eight reporters and four supervising editors. Similarly, African Americans account for about 12 percent of the staff, but the African American percentage of the population in parts of The Post’s core circulation area is more than four times greater.

Imagine saying that only whites can cover certain neighborhoods or particular beats. The lawsuits would be flying, and the pickets would be gathering outside the Post’s offices. The Post seems to argue for re-segregation of the news: African American cover “their” neighborhood and whites their own. (And does the Post management actually imagine that only Hispanics can speak Spanish?) This is the voice of “wise Latina” Sonia Sotomayor, who assumes that ability, skills, intellectual perspective, and empathy are determined by race or ethnicity. (“Predictably, what is ‘news’ risks being seen through a white prism.”)

Alexander, seemingly inured to the perniciousness of what he is writing, sums up:

“You use diversity as an advantage in these economic times to get a leg up on the next guy,” said former Post reporter Richard Prince, who writes “Journal-isms,” an online column about minorities and the media. Or you suffer the consequences.

Welcome to the post-racial world in which race is a weapon to be wielded against competitors and a stick with which to beat hiring managers. No, it’s not remotely legal, and it is nothing short of shameful.

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RE: What the Health-Care Bill Means

John, the opponents are wasting no time with the legal challenges. In my e-mail box bright and early is a message from the Virginia attorney general (a conservative swept into office on a wave of anti-Obama sentiment):

The Office of the Attorney General of Virginia will move forward with our lawsuit against the federal government and its unconstitutional overreach of its authority with the passage of the federal health care bill. We will file our complaint with the court as soon as the president signs it into law.

With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce. We contend that if a person decides not to buy health insurance, that person — by definition — is not engaging in commerce, and therefore, is not subject to a federal mandate.

Virginia is in a unique situation that allows it the standing to file such a suit since Virginia is the only state so far to pass a law protecting its citizens from a government-imposed mandate to buy health insurance. The health care reform bill, with its insurance mandate, creates a conflict of laws between the federal government and Virginia. Normally, such conflicts are decided in favor of the federal government, but because we believe the federal law is unconstitutional, Virginia’s law should prevail.

Just being alive is not interstate commerce. If it were, there would be no limit to the U.S. Constitution’s commerce clause and to Congress’s authority to regulate everything we do. There has never been a point in our history where the federal government has been given the authority to require citizens to buy goods or services. … The suit will be filed in the United States District Court for the Eastern District of Virginia, Richmond Division.

You can imagine that dozens of suits will follow. This then becomes an issue in every state attorney general’s race. And in state legislative races, Republican candidates will promise to pass state laws prohibiting mandatory insurance. ObamaCare then becomes the issue not only in every congressional and Senate race but in state races too. It is in some ways a GOP-campaign godsend.

John, the opponents are wasting no time with the legal challenges. In my e-mail box bright and early is a message from the Virginia attorney general (a conservative swept into office on a wave of anti-Obama sentiment):

The Office of the Attorney General of Virginia will move forward with our lawsuit against the federal government and its unconstitutional overreach of its authority with the passage of the federal health care bill. We will file our complaint with the court as soon as the president signs it into law.

With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce. We contend that if a person decides not to buy health insurance, that person — by definition — is not engaging in commerce, and therefore, is not subject to a federal mandate.

Virginia is in a unique situation that allows it the standing to file such a suit since Virginia is the only state so far to pass a law protecting its citizens from a government-imposed mandate to buy health insurance. The health care reform bill, with its insurance mandate, creates a conflict of laws between the federal government and Virginia. Normally, such conflicts are decided in favor of the federal government, but because we believe the federal law is unconstitutional, Virginia’s law should prevail.

Just being alive is not interstate commerce. If it were, there would be no limit to the U.S. Constitution’s commerce clause and to Congress’s authority to regulate everything we do. There has never been a point in our history where the federal government has been given the authority to require citizens to buy goods or services. … The suit will be filed in the United States District Court for the Eastern District of Virginia, Richmond Division.

You can imagine that dozens of suits will follow. This then becomes an issue in every state attorney general’s race. And in state legislative races, Republican candidates will promise to pass state laws prohibiting mandatory insurance. ObamaCare then becomes the issue not only in every congressional and Senate race but in state races too. It is in some ways a GOP-campaign godsend.

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Obama Lawyers Fined by Federal Court

Sanctimonious Eric Holder and his equally sanctimonious minions strode into the Justice Department filled with contempt for their predecessors, who they said had “politicized” the administration of justice. (They then proceeded to override the judgment of professional lawyers in the Office of Legal Counsel on the constitutionality of D.C. voting rights, appoint a slew of left-wing lawyers who are now making policy on terrorism, and override career prosecutors who chose not to pursue charges against CIA operatives who employed enhanced interrogation techniques.)

Specifically in the civil rights arena, the Obami charged that the Bush administration had failed to act with due diligence to enforce federal law. The Obama political appointees then proceeded to dismiss the New Black Panther Party case, an egregious case of voter intimidation. When last we checked, the Obama administration was refusing to allow its lawyers to respond to a subpoena by the U.S. Commission on Civil Rights. (Responses to written discovery requests are due on January 11.) Now comes further evidence of what passes for the “administration of justice” in the Obama-Holder regime:

This week, a federal district court in Kansas imposed sanctions on the same Civil Rights Division (CRD) officials who spiked the Panthers case, Loretta King and Steve Rosenbaum, for their refusals to provide information in another case. Breaking the president’s promise to have the most transparent administration in history, Rosenbaum and King’s concealment of information will cost the taxpayers thousands of dollars. … What is clear from reading the order is that, as usual, the CRD made broad accusations of discriminatory conduct when it filed its complaint, but when it was asked to provide specific examples or actual evidence of such discrimination, it failed to do so. Lawyers for both sides have until January 20 to determine the amount of the award to be made to the defendants. While the CRD lawyers “shall be solely responsible for paying the monetary sanctions,” there is no doubt the department will reimburse them, so the American taxpayer will end up footing the bill for Rosenbaum’s outrageous behavior and his failure to properly supervise the lawyers who work for him.

It is noteworthy that these two lawyers — the ones who directly superimposed their own legal judgment in the New Black Panther Party case — are now the subject of  the court’s order, which as the report notes is unusual, in that it is “directed at individual lawyers that specifically says their employer is not responsible for paying the costs.” To boot, King is a multiple-sanctions recipient. During the Clinton administration, she was one of the Justice Department attorneys who was responsible for a fine of more than half a million dollars.

It’s important to keep in mind that, according to those most closely involved in the matter, it’s highly unlikely that King and Rosenbaum themselves initiated the dismissal of the New Black Panther Case. The Washington Times has fingered the No. 3 man in the Justice Department. Nevertheless, the Obama team has contended to Republican congressmen that it was these “professionals” who made the call. And these are among the Obama lawyers who now are going to “improve” enforcement of civil rights laws. We now know what the Obama “professional” lawyers look like in action.

Sanctimonious Eric Holder and his equally sanctimonious minions strode into the Justice Department filled with contempt for their predecessors, who they said had “politicized” the administration of justice. (They then proceeded to override the judgment of professional lawyers in the Office of Legal Counsel on the constitutionality of D.C. voting rights, appoint a slew of left-wing lawyers who are now making policy on terrorism, and override career prosecutors who chose not to pursue charges against CIA operatives who employed enhanced interrogation techniques.)

Specifically in the civil rights arena, the Obami charged that the Bush administration had failed to act with due diligence to enforce federal law. The Obama political appointees then proceeded to dismiss the New Black Panther Party case, an egregious case of voter intimidation. When last we checked, the Obama administration was refusing to allow its lawyers to respond to a subpoena by the U.S. Commission on Civil Rights. (Responses to written discovery requests are due on January 11.) Now comes further evidence of what passes for the “administration of justice” in the Obama-Holder regime:

This week, a federal district court in Kansas imposed sanctions on the same Civil Rights Division (CRD) officials who spiked the Panthers case, Loretta King and Steve Rosenbaum, for their refusals to provide information in another case. Breaking the president’s promise to have the most transparent administration in history, Rosenbaum and King’s concealment of information will cost the taxpayers thousands of dollars. … What is clear from reading the order is that, as usual, the CRD made broad accusations of discriminatory conduct when it filed its complaint, but when it was asked to provide specific examples or actual evidence of such discrimination, it failed to do so. Lawyers for both sides have until January 20 to determine the amount of the award to be made to the defendants. While the CRD lawyers “shall be solely responsible for paying the monetary sanctions,” there is no doubt the department will reimburse them, so the American taxpayer will end up footing the bill for Rosenbaum’s outrageous behavior and his failure to properly supervise the lawyers who work for him.

It is noteworthy that these two lawyers — the ones who directly superimposed their own legal judgment in the New Black Panther Party case — are now the subject of  the court’s order, which as the report notes is unusual, in that it is “directed at individual lawyers that specifically says their employer is not responsible for paying the costs.” To boot, King is a multiple-sanctions recipient. During the Clinton administration, she was one of the Justice Department attorneys who was responsible for a fine of more than half a million dollars.

It’s important to keep in mind that, according to those most closely involved in the matter, it’s highly unlikely that King and Rosenbaum themselves initiated the dismissal of the New Black Panther Case. The Washington Times has fingered the No. 3 man in the Justice Department. Nevertheless, the Obama team has contended to Republican congressmen that it was these “professionals” who made the call. And these are among the Obama lawyers who now are going to “improve” enforcement of civil rights laws. We now know what the Obama “professional” lawyers look like in action.

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Detainee Abuse Photo Case

In some legal news today, the Supreme Court in a per curium opinion tossed out a second U.S. Circuit Court of Appeals ruling that had ordered the disclosure of  detainee-abuse photographs in a lawsuit brought by the ACLU. The Court told the lower court to consider a federal law under which Secretary of Defense Gates in mid-November exercised his authority to prevent the photos’ release. If you recall, with advice from Eric Holder’s Justice Department, Obama at first didn’t oppose the release of the photos. When critical public opinion and outrage in the military surfaced over the potential to incite violence against our troops, the administration reversed course.

This is noteworthy on a few grounds. First, it demonstrates just how faulty and biased is the “legal” advice coming from the DOJ. Holder’s lefty lawyers first advised that, in effect, the president had no choice but to turn over the photos. Maybe that was the answer the White House wanted, but it was wrong and in fact an easy solution was arrived at. (An executive order would have been an even easier solution.)

Second, decisions are reversible if they prove foolhardy. Just as the photos need not be released, Guantanamo may remain in operation, and the president can put the kabosh on KSM’s civilian trial. The president really is in charge and if he can be persuaded that earlier advice was bad, there is usually a means of correcting any error. And finally, this episode should remind the administration that there is little to be gained and much to be lost by currying favor with the netroot crowd. Unless the administration wants to imperil national security and risk the wrath of the military and the majority of voters, it really won’t be able to keep the ACLU and its ilk happy. So it should stop trying.

UPDATE: Sens. Joe Lieberman and Lindsay Graham who co-sponsored the provision allowing Gates to block the photos issued a statement praising the ruling.

In some legal news today, the Supreme Court in a per curium opinion tossed out a second U.S. Circuit Court of Appeals ruling that had ordered the disclosure of  detainee-abuse photographs in a lawsuit brought by the ACLU. The Court told the lower court to consider a federal law under which Secretary of Defense Gates in mid-November exercised his authority to prevent the photos’ release. If you recall, with advice from Eric Holder’s Justice Department, Obama at first didn’t oppose the release of the photos. When critical public opinion and outrage in the military surfaced over the potential to incite violence against our troops, the administration reversed course.

This is noteworthy on a few grounds. First, it demonstrates just how faulty and biased is the “legal” advice coming from the DOJ. Holder’s lefty lawyers first advised that, in effect, the president had no choice but to turn over the photos. Maybe that was the answer the White House wanted, but it was wrong and in fact an easy solution was arrived at. (An executive order would have been an even easier solution.)

Second, decisions are reversible if they prove foolhardy. Just as the photos need not be released, Guantanamo may remain in operation, and the president can put the kabosh on KSM’s civilian trial. The president really is in charge and if he can be persuaded that earlier advice was bad, there is usually a means of correcting any error. And finally, this episode should remind the administration that there is little to be gained and much to be lost by currying favor with the netroot crowd. Unless the administration wants to imperil national security and risk the wrath of the military and the majority of voters, it really won’t be able to keep the ACLU and its ilk happy. So it should stop trying.

UPDATE: Sens. Joe Lieberman and Lindsay Graham who co-sponsored the provision allowing Gates to block the photos issued a statement praising the ruling.

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