Daily Archives: January 31, 2011
I’m not a lawyer nor do I pretend to be, although I do enjoy discussing legal matters very much.
Anyway, as you might imagine, Judge Vinson’s ruling has created a bit of a stir with the left, of course, accusing him of “extreme activism” and the right saying “right on”. In reality, all it means is the future of the law depends on what Justice Kennedy is feeling like when the SCOTUS hears it because they are going to have to review it now.
So, back to me not being a lawyer, I’d like to turn to someone who is and who has followed this closely and, in fact, wrote amicus briefs for two of the governors involved in the lawsuits – Hans Bader who is a senior attorney with the Competitive Enterprise Institute. Here’s his opinion of the ruling:
A judge in Florida just declared the health care law known as “Obamacare” unconstitutional, ruling it void in its entirety. Judge Vinson rightly declared the health care law’s individual mandate unconstitutional, since the inactivity of not buying health insurance is not an “economic activity” that Congress has the power to regulate under the Interstate Commerce Clause. (Under the Supreme Court’s decision in United States v. Morrison (2000), which I helped litigate, only “economic activity” can be regulated under the Commerce Clause, with the possible exception of those non-economic activities that harm instrumentalities of interstate commerce or cross state lines.)
Judge Vinson also rightly declared the law as a whole unconstitutional. The health care law lacks a severability clause. So if a major provision like the individual mandate is unconstitutional — as it indeed was — then the whole law must be struck down.
The absence of a severability clause meant that, at a minimum, the burden of proof shifted to the government to prove (among other things) that the law would have passed even without the individual-mandate provision that the court has just ruled unconstitutional. The government could not, and did not, meet that burden of proof, given the incredibly narrow margin by which the health care law passed in the House, and the fact that it circumvented a filibuster with no votes to spare in the Senate.
As I noted earlier in The Washington Examiner, “To justify preserving the rest of the law, the judge” in the earlier Virginia case “cited a 2010 Supreme Court ruling [Free Enterprise Fund v. PCAOB] that invalidated part of a law — but kept the rest of it in force. But that case involved a law passed almost unanimously by Congress, which would have passed it even without the challenged provision. Obamacare is totally different. It was barely passed by a divided Congress, but only as a package. Supporters admitted that the unconstitutional part of it — the insurance mandate — was the law’s heart. Obamacare’s legion of special-interest giveaways that are ‘extraneous to health care’ does not alter that.” In short, Obamacare’s individual mandate is not “volitionally severable,” as case law requires.
The individual mandate provision also was not “functionally” severable from the rest of the law, since the very Congress that passed deemed it absolutely “essential” to the Act’s overarching goals (as Judge Vinson in Florida correctly noted).
(In our amicus brief in the Florida case for Governors Tim Pawlenty and Donald L. Carcieri, we also argue that Obamacare violates the Tenth Amendment by exceeding Congress’s power under the Spending Clause, a so-called Pennhurst argument.)
In footnote 27, the judge cited with approval the thoughtful brief of legal scholar Ken Klukowski explaining why Obamacare should be struck down in its entirety under settled principles of severability.
So there it is with all the links. I’m hoping that’s how the SCOTUS sees it as well. So for the lawyers among us – have at it guys.
’m not sure what else to call it but it does indeed seem a fitting example of a discussion we recently had here about colleges failing to teach critical thinking.
Think Progress (of course) has a blog post headlined with “Income inequality in US worse than Egypt”. Never let a crisis go to waste, huh?
First you are asked to believe that it is “income inequality” which is leading the pack of reasons the country wants Mubarak gone. If not, what’s the purpose of the headline?
Secondly, there’s the equivalence this writer makes between the US and Egypt. My guess Pat Garafalo has never been to Egypt (or perhaps even out of the US to a nation in which “poor” actually means poor) so he has no frame of reference in his comparison. Its all about income inequality, that’s always "bad" and that is the leading reason for unrest, or so the reasoning, such that it is, seems to conclude.
Usually “income inequality” isn’t even on the radar screen when these sorts of things happen. The grievances are more focused more generally on “freedom”, “liberty”, “oppression” and/or “democracy”. You may, as you have in the case of Egypt, even hear “economic opportunity” as a reason.
No, “income inequality” is one of those terms the left likes to use as a sort of euphemism for “capitalist exploiters” – a part of their perpetual war on business. “Capitalist exploiters” include any corporation and most business owners. Of course they can’t use “capitalist exploiters” without revealing their game (and being dismissed out of hand), so “income inequality” has to do. The implication, of course, is if we just took the money from those capitalist exploiters and spread it around (because, you know, those folks collect it and bury it in a coffee can in the back yard or stuff their mattress with it), all would be lovely.
The fact remains that economic opportunity is lacking in Egypt not because of “capitalist exploiters” but because of government oppression and favoritism.
Somehow though, and certainly there are problems with government intrusion here, what has gone on in Egypt is relevant to what is going on here and the proof is “income inequality”. Make the connection for heaven sake – what’s wrong with you?
Garafalo takes a wave at trying to sound fair about his point, but remember, to swallow this whole you have to believe two things – one, that economics is a zero-sum game, so if the rich are getting richer the poor must get poorer and two, there is no opportunity for the poor to better their condition. The rich are just making it worse and worse for the poor by
earning taking more than their “fair share”.
Anyway, Garafalo says:
The Gini coefficient is used to measure inequality: the lower a country’s score, the more equal it is. Obviously, there are many things about the U.S. economy that make it far preferable to that in Egypt, including lower poverty rates, higher incomes, significantly better infrastructure, and a much higher standard of living overall. But income inequality in the U.S. is the worst it has been since the 1920′s, which is a real problem.
Using that, I’d have to guess that the former Soviet Union and it’s bloc of Eastern European satellites had very low Gini coefficient scores, wouldn’t you?
See, this is “equality” for equality’s sake. It’s nonsense. It is the turning of a concept from a positive to a negative. We have all been promised something very profound in the country – equal protection under the law and equal opportunity to pursue “happiness”. Yet it is something the left constantly and consistently pushes as a different message. It doesn’t just want equality in opportunity – it want’s equality of outcome.
That’s why you continue to see long boring posts written about the subject of “income inequality”. It is how the left justifies further intrusion by government and taking from those who “have” to give to those who “don’t have”. It’s about time we made it clear that other than the leftist chorus, no one else is buying into their preaching.
Oh and the big finish to the Garafalo piece?
Yale economist Robert Shiller has said that income inequality “is potentially the big problem, which is bigger than this whole financial crisis.” “If these trends that we’ve seen for 30 years now in inequality continue for another 30 years…it’s going to create resentment and hostility,” he said. But tax and spending policies that provide adequate services and allow for economic mobility — along with a robust social safety net — can head off trouble that may come down the road.
“Bigger than this whole financial crisis”. It will create “resentment and hostility”. There may be “trouble … down the road”.
Have you freakin’ people looked around you and figured out yet how well everyone – in comparison with most of the rest of world – live here? This constant refrain from the left is as tiresome as it is wrong. It’s nonsense on a stick. But you will continue to hear them whine about it for the foreseeable future because it is a way for them to justify taking your money for their purposes and sounding noble about it.
As Egypt burns: has the administration picked a side? And some on the left are still in “moon pony” land about the Muslim Brotherhood and the potential for a Muslim state emerging
I’m not sure how you might interpret this, but it seems to me, given what Secretary Hillary Clinton has been saying, that we’ve picked a side in Egypt.
Secretary of State Hillary Rodham Clinton called on Sunday for “an orderly transition” to a more politically open Egypt, stopping short of telling its embattled president, Hosni Mubarak, to step down but clearly laying the groundwork for his departure.
Granted it doesn’t tell Mubarak to give it up, it certainly doesn’t openly support the protesters, but make no mistake, in diplo-speak, this is pretty close to doing both. I’m not judging it one way or the other, I’m just sayin’.
Stipulating that, who does the administration think will lead the transition to that country having more “economic and political freedom?”
Well, she doesn’t say, but my guess is the administration would find Mohammad ElBaradei to be an acceptable choice. The question is does he really have the support to actually take power or, as many worry, if Mubarak flies off to Saudi Arabia – the country of choice for ousted dictators – will ElBaradei suddenly find himself on the outside looking in as more powerful factions compete for control?
Of course, there are those on the left here who are pretty sure that the Muslim Brotherhood running some sort of anti-American Muslim state is just a myth and nothing to worry about. Meanwhile, in the real world, Haarretz reports:
The Muslim Brotherhood, Egypt’s largest opposition group,is in talks with other anti-government figures to form a national unity government without President Hosni Mubarak, a group official told DPA on Sunday.
Gamal Nasser, a spokesman for the Brotherhood, told DPA that his group was in talks with Mohammed ElBaradei – the former UN nuclear watchdog chief – to form a national unity government without the National Democratic Party of Mubarak.
The group is also demanding an end to the draconian Emergency Laws, which grant police wide-ranging powers The laws have been used often to arrest and harass the Islamist group.
Nasser said his group would not accept any new government with Mubarak. On Saturday the Brotherhood called on President Mubarak to relinquish power in a peaceful manner following the resignation of the Egyptian cabinet.
So the moves within the opposition are beginning to become visible. Meanwhile useful idiots like ElBaradei are necessary to calm the rest of the world to give the “revolution” an acceptable face until power can be consolidated. And leave it to ElBaradei to cooperate fully, given the hubris of the man:
Speaking to CNN later Sunday, ElBaradei said he had a popular and political mandate to negotiate the creation of a national unity government.
"I have been authorized — mandated — by the people who organized these demonstrations and many other parties to agree on a national unity government," he told CNN.
A couple of things to remember – the Muslim Brotherhood has been the opposition in Egypt, not ElBaradei. The MB is closely identified with the revolutionary nationalism that is now evident, ElBaradei has been in “exile”. The Muslim Brotherhood has been banned from having seats in the Egyptian Parliament, yet they’ve still successfully run candidates as “independents” to capture a portion of seats.
Also remember that Egyptian prisons have been the incubators of Islamic jihad and that the MB has been well represented in those prisons.
Or, to put it more succinctly, look for the MB to make its moves when Mubarak is safely out of the country and the consolidation of power is near complete (and one way they will do that is by refusing Mubarak’s party any part in a new government). At that point, Mr. Useful, ElBaradei, may not be useful enough to keep around as the MB will be powerful enough to control Egypt without caring much how acceptable they seem to the rest of the world.