Free Markets, Free People


Is the Supreme Court poised to approve Arizona’s immigration law?

Apparently that depends on how Justice Kennedy decides.  Of the 8 justices on the case (Kagen recused herself) he appears to be the only one whose final stance is unknown.  As Lyle Denniston at SCOTUS blog says:

Were Kennedy to vote to uphold the law, despite apparent reservations, the result probably would be a 5-3 win for Arizona.  But if he voted to strike down the law, there seemed likely to be only three other votes to go with his, making the vote 4-4 — but Arizona still would win, because such a split vote would summarily affirm a Ninth Circuit Court decision that upheld the state’s worker control law. 

However, as he further notes, a split would only apply to that particular case and not more broadly.  It would also indicate the probability of any cases that follow it would most likely fail:

Evenly divided results, however, do not set a precedent beyond the individual case, so the result in the future, if all nine Justices took part, might well come out differently: Justice Kagan’s vote could be the swing vote.  And other test cases are on the way — including one involving an even broader Arizona anti-immigration law, and a set of alien restrictions adopted by the local government in Hazleton, Pa.

So stay tuned.  Worst case for AZ is it gets part of the law affirmed if there’s a split.  However it would also mean that the ability for states to address immigration problems would most likely be dead.  Supporters have got to hope Kennedy comes down on the side of the right of a state to address the problem that the Federal Government seems unwilling and/or unable to address.



Health insurance mandate – Obama administration now arguing it is a tax

Having made it up as they go, the Obama administration is now arguing that the mandate to buy insurance coverage under Obamacare is a perfectly legal tax.

That, of course, after the President denied it was a tax in order to sell it:

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

You can tell he was a constitutional expert when he taught, can’t you?

So much so that the Department of Justice, in a brief defending the law, claims it to be a "valid exercise of the Congressional power to impose taxes:

Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.

Except Congress doesn’t argue that at all.  Instead it relies on the Commerce Clause as its justification for the mandate:

Congress anticipated a constitutional challenge to the individual mandate. Accordingly, the law includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority.

And then, per the White House, if any additional authority is needed – other than the power to define and then levy taxes (Congress) or the commerce clause, why just consult the General Welfare Clause.  They have more Constitutional ways to make you buy something you may not want than you can imagine:

“The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law,” Mr. Pfeiffer said. “To the extent that there is any question of additional authority — and we don’t believe there is — it would be available through the General Welfare Clause.”

One has to assume they just plan on overwhelming the Court with as many “viable alternatives” as it takes to get their way.

One Yale professor says the tax argument – the one Mr. Obama denied – is the strongest argument:

Jack M. Balkin, a professor at Yale Law School who supports the new law, said, “The tax argument is the strongest argument for upholding” the individual-coverage requirement.

Mr. Obama “has not been honest with the American people about the nature of this bill,” Mr. Balkin said last month at a meeting of the American Constitution Society, a progressive legal organization. “This bill is a tax. Because it’s a tax, it’s completely constitutional.”


Smoke, mirrors, deceit and debt.  That’s what you get for trusting a snake-oil salesman with your health care.  Oh and this:

“This is the first time that Congress has ever ordered Americans to use their own money to purchase a particular good or service,” said Senator Orrin G. Hatch, Republican of Utah.

If this survives the court challenge, it won’t be the last – trust me on that.

The irony, of course, is the Constitution was written to limit government and keep it off our back.  Instead it is now being used to expand government and intrude more and more deeply in our lives.


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SCOTUS v. Obama – Mess with the bull, get the horn

And that may be exactly what will happen when, inevitably, much of the law and regulation pushed by the Obama administration and passed by the Democratic Congress are challenged in court – a poor tactical choice may come back to haunt the administration.

You probably remember the incident.  I remember remarking at the time that such a public embarrassment could come back to haunt Obama.  And that may end up being the case:

But the year’s most important moment may have come on the January evening when the justices gathered at the Capitol for President Obama’s State of the Union address.

They had no warning about what was coming.

Obama and his advisors had weighed how to respond to the court’s ruling the week before, which gave corporations the same free-spending rights as ordinary Americans. They saw the ruling as a rash, radical move to tilt the political system toward big business as they coped with the fallout from the Wall Street collapse.

Some advisors counseled caution, but the president opted to criticize the conservative justices in the uncomfortable spotlight of national television as Senate Democrats roared their approval.

Chief Justice John G. Roberts Jr. is still angered by what he saw as a highly partisan insult to the independent judiciary. The incident put a public spotlight on the deep divide between the Obama White House and the Roberts court, one that could have a profound effect in the years ahead.

A public challenging of the integrity and independence of the court was more than a rookie mistake. It was dumb politics.  It was an unforced error by Obama that may indeed have “profound effect” on the court’s rulings. 

The court may have had to sit there and take it at the time, but once back in their seat of power, it is they who are all powerful and can wreak havoc on the administration’s regulation regime and legislation.

That’s not to say the conservative side of the court will intentionally go after the administration’s agenda items – damn the law- but it may mean that they cut the administration no slack whatsoever and commit themselves to very strict interpretations of the Constitution that leave little latitude for meaningful legislative change to satisfy the court.

So what does that mean practically?  Take health care reform and the possible coming government arguments that the mandate to buy insurance is a) a tax or is b) covered by the interstate commerce clause.

Of course the court then has to decide on whether it is indeed a tax, if that tax is Constitutionally legal and whether Congress has the power to levy it.

Or, it will have to decide if such a mandate is indeed Constitutional under the commerce clause.

Given the incident during the State of the Union address, is there anyone who believes the administration’s arguments will be given the benefit of the doubt when it comes to a ruling on either question?  If, in fact, it could conceivably go either way, I think most believe the way it will go will be the way least favored by the administration at least on the conservative side of the house.

Of course you’ll hear charges of “judicial activism” if that happens, but I’d be more likely to find a more narrow definition of the commerce clause or Congress’s taxing power to be anything but activist in nature.

It’ll be interesting to watch this all unfold.  It’ll be a while before any of this reaches SCOTUS, but when it does, the fireworks generated will be much better than anything seen on the 4th of July.



SCOTUS – all Americans have the right to keep and bear arms

In a rather interesting ruling which, unsurprisingly, split along ideological lines, the Supreme Court today made it clear that all Americans enjoy the full right and benefit of self-defense guaranteed by the 2nd Amendment.  Mary Katharine Ham notes part of the majority opinion written by Justice Samuel Alito:

Alito writes in part, “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right,” while allowing, as in Heller, for sensible gun ownership restrictions.

Alito went on to write:

We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

Of course, the crack left by that sentence will be fully exploited by municipalities and states, calling whatever they try to do "sensible gun ownership restrictions". But Alito makes it clear that the Bill of Rights, as incorporated under the Constitution, doesn’t mean that states have the right or authority to radically change the intent of the constitutional guarantees they provide citizens:

"The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Or, screw with this ruling at your own peril.

As mentioned, the court split 5-4.  Justice Stephen Breyer wrote the dissent:

He disagreed with the majority that it is a fundamental right, and said the court was restricting state and local efforts from designing gun control laws that fit their particular circumstances, and turning over all decisions to federal judges.

"Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a nation whose constitution foresees democratic decision-making, is it so fundamental a matter as to require taking that power from the people?" Breyer wrote. "What is it here that the people did not know? What is it that a judge knows better?"

Well that’s a simple one, Justice Breyer – because rights aren’t something one votes on.  A right is something one either has or doesn’t.  What Breyer is suggesting is it should be up to a majority to “vote” to take away the rights guaranteed to all Americans by the Constitution.  In my ideological neck of the woods, that dog won’t hunt.



SCOTUS – Miranda means you have to say "yes" to silence

The Supreme Court decided yesterday, in a narrow vote, that if you want to remain silent – and stop police from peppering you with questions – you have to say you wish to remain silent (and thereby legally end the police questioning).

Our newest Supreme Court Justice, Sotomeyer, dissented saying this ruling “turns Miranda upside down.”

“Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

That’s what happens when the word “right” is thrown around haphazardly as it is in today’s culture. What Sotomeyer is attempting to do (and what the court has done in the past) is imbue a legal privilege with the mantle of “right”. Telling someone they have the option of remaining silent has nothing to do with a right. It is a privilege our legal system has granted to those who’ve been arrested so they won’t incriminate themselves mistakenly.

There’s nothing wrong with requiring an acknowledgement that they wish to invoke the privilege of silence. There is likewise nothing wrong with assuming they aren’t invoking it by their silence. They must speak when they’re asked if they understand the Miranda warning, and they must speak to acknowledge their desire for a lawyer. There’s certainly nothing wrong with speaking to say you are invoking the legal privilege of silence.

It’s an “opt in” situation (just as speaking up for a lawyer). Otherwise, police are free to assume that privilege isn’t being used and can continue to try to question the suspect.

I see no right – in real terms – violated by this ruling. And I assume that the Miranda warning will be modified to say that the person arrested must clearly state they choose to be silent and that will be recorded or attested too. The simplest way is verbally followed up by a standard form invoking the privilege and signed by the defendant. I don’t see a problem there.

BTW, Elaina Kagen, now a SCOTUS nominee, had this to say about the case to the court as solicitor general:

“An unambiguous-invocation requirement for the right to remain silent and terminate questioning strikes the appropriate balance between protecting the suspect’s rights and permitting valuable police investigation.”

I agree.



SCOTUS strikes down ban on animal cruelty videos

And it wasn’t even close – 8-1.  The court finding is based in the First Amendment right of free speech.

So – who do you suppose the lone dissenter was?  I would almost bet you won’t guess correctly.  I didn’t.

Anyway, the court found that the law was overly broad and while aimed at outlawing some dispicable videos known as “crush videos” (as an aside, when you read what a crush video is, you will indeed understand that there are some very sick people in this world).  However, the law could also be used to prosecute hunting videos as well. 

The government had argued that “certain categories of speech deserve constitutional protection depends on balancing the value of the speech against its societal costs”.

Writing for the majority Chief Justice John Roberts explains why the court rejected that argument:

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” Roberts wrote. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Or said another way, the court refused to allow the government to institute arbitrary or “ad hoc” standards that “balance relative social costs and benefits”.  One can, or should be able to see the very slippery slope to where that sort of reasoning leads – and it certainly could lead to serious restrictions of the right to free speech depending on how government deicides to “balance” those costs and benefits in the future.  Remember – the First Amendment is a restriction on government, not the people.  And the court enforced that.

The lone dissenter?  Sam Alito who wrote:

“The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.”

The prosecute the criminal for the crime he has filmed for you.  I can think of nothing that stops the law from doing that.  And that has nothing to do with restricting the First Amendment.




Possible SCOTUS picks

Daniel Foster at NRO lays out what most people feel are the most probable picks by President Obama for the upcoming vacancies on the Supreme Court:

Merrick Garland –  a former federal prosecutor and current D.C. Circuit appeals judge. A Clinton appointee, Garland is well-liked by Democrats and even some Republicans in the Senate.

Elena Kagan – The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. She is well-respected by just about everybody on both sides, but lacks the paper trail that would reveal just how far to the left she’d sit.

Diane Wood – Another Clinton appointee, considered the heaviest liberal counterweight to the conservative Chicago Seventh Circuit Court of Appeals dominated by Richard A. Posner. Wood was a colleague of President Obama at the University of Chicago Law School.

Pamela Karlan – A professor at Stanford Law School, Karlan is a longshot once was described by the New York Times as a “snarky. . . Antonin Scalia for the left.” Karlan is openly gay, and an outspoken liberal.

As Foster says, Pamela Karlan is probably the least likely of the 4 listed to be nominated, but still a possibility.  Since it is a liberal seat that’s being filled, the current balance won’t change.  From what I’ve read, the least liberal of the bunch is Garland, and, as Foster implies, is the one with the most reasonable chance of confirmation of the four.  If he’s the nominee, I’d imagine that the GOP won’t put up that much of a fight.  If, however, any of the other three should be nominated, expect a fight.  Also expect the usual charges of sexism to be thrown out there during that fight.



SCOTUS Chief grumbles

Chief justice John Roberts is obviously not happy about the SCOTUS being the focus of an attack by the President during the State of the Union address recently and said so in answer to a question after a lecture at the University of Alabama law school:

Responding to a University of Alabama law student’s question, Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions.

“So I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum.

“The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.”

Breaking from tradition, Obama criticized the court’s decision that allows corporations and unions to freely spend money to run political ads for or against specific candidates.

The whole point, of course, is the term “breaking from tradition”. What Roberts objects too isn’t the criticism, it’s the manner and place in which the criticism was leveled. I think it is a fair point.

And it is interesting to me that the one who got heat from the press was Justice Alito for mouthing the words “not true” – not Barack Obama for “breaking from tradition”.

My guess is this year’s SOTU may be the last one for some of the justices, at least for the near future:

“I’m not sure why we’re there,” said Roberts, a Republican nominee who joined the court in 2005.

Justice Antonin Scalia once said he no longer goes to the annual speech because the justices “sit there like bumps on a log” in an otherwise highly partisan atmosphere. Six of the nine justices attended Obama’s address.

I’d bet it may be 3 of 9 next year. The Supreme Court isn’t a subordinate branch of government. It is a co-equal branch. I can imagine the outcry from the administration if the court criticized the administration and its policies from the bench. That sort of criticism is traditionally avoided. It also points out that Obama’s confrontational attitude isn’t only reserved for the GOP. And for a post-partisan president who claims to want to change the way business is done in Washington, this isn’t the way to do that.

That said, I wouldn’t want to be representing the administration in the SCOTUS anytime soon on a controversial issue that the court must hear. I would imagine that some on the court will come as close as tradition allows to making the point that two can play this game. Of course the difference will be it won’t be on national TV in prime time.



SCOTUS prepared to “incorporate” 2nd Amendment via 14th?

It appears that may be the case as the Supreme Court hears oral arguments in the Chicago gun ban case (McDonald v. Chicago).  Great write up at the SCOTUSblog if you haven’t read it.  Per Lyle Denniston, the court appears to be leaning toward incorporating the individual right to keep and bear arms interpretation of the amendment nationally:

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.  The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

Make sure you read the whole thing as there’s lots of interesting discussion about why most feel that will be the final decision of the court. Also note that while it is believed the court will incorporate the 2nd Amendment as an individual right, it will leave state and local governments with, as Denniston says “considerable authority to regulate that right”. That part of it, I’m sure, will continue to be fought in the courts over the years. But if this turns out as it appears it might, it will be an almost fatal blow to the “2nd Amendment is a collective right” crowd.



SCOTUS Kills McCain-Feingold. Lady Liberty Smiles

The Democrats and the NY Times are howling about the SCOTUS decision which effectively rendered the anti-First Amendment McCain-Feingold Campaign Finance Law moot.

Essentially their argument boils down to “the public is too stupid to be able to separate the political wheat from the chaff and must be protected from political advertising by corporate entities with an agenda”.

Of course, advertising by politicians with an agenda is just peachy keen.

Reality: anyone or any group which advertised during a political campaign has an agenda.  In America, per the 1st Amendment, they have the freedom to pursue it.  Or should have that freedom, anyway.  McCain-Feingold limited or prohibited that freedom and what SCOTUS did to overturn those prohibitions is long overdue.

Judge Andrew Napalitano gives us a good rundown of the ruling:

The Supreme Court today invalidated its own 20 year old ruling on group political contributions and it also invalidated a portion of the McCain-Feingold Campaign finance law. The 20 year old ruling had prohibited all political expenditures by groups such as corporations, labor unions, and advocacy groups (like the NRA and Planned Parenthood). Ruling that all persons, individually and in groups, have the same unfettered free speech rights, the Court blasted Congress for suppression of that speech. Thus, from today forward, all groups are free to spend their own money on their own political campaigns and to mention the names of the candidates.

The Court also threw out the portion of McCain-Feingold that had permitted persons to contribute to Political Action Committees (PACs), but barred those PACs from using those funds in the sixty day period preceding an election. Since that sixty day period preceding the election is the most vital in any campaign, the Court held that the prohibition on expenditures during that time was a violation of the free speech guaranteed to all persons, individually and in groups, by the First Amendment.

Thus, as a result of the ruling today, all groups may spend their own money as they wish on their own campaigns, but they still may not–as groups–contribute directly to political campaigns. The direct political contribution prohibition in McCain-Feingold was not challenged in this case, thus its constitutionality was not an issue before the Court. Groups will thus effectively be running and financing their own campaigns for candidates on their own.

That means the FEC no longer has a say in what is or isn’t appropriate or who can or can’t run what during an election season. Apparently, according to Napalitano, one of the questions asked by Justice Scalia which elicited an answer from the FEC infuriated most of the justices:

During the course of oral argument on this case in October in the Supreme Court, one of the FEC’s lawyers replied to a question from Justice Antonin Scalia to the effect that the FEC could ban books if they were paid for by corporations, labor unions, or advocacy groups. This highly un-American statement in the Supreme Court–that the federal government can ban books–infuriated a few of the justices.

Anyone reading this want to raise their hand and back book banning?

Democrats are concentrating their ire on the fact that the court found that a corporation has the same right to express itself as an individual. It is another battle in their long war against corporate America.   It’s not an effective or particularly compelling argument.  A PAC isn’t an individual but enjoyed the same advertising rights as an individual.  Why shouldn’t a corporation enjoy them as well?   So don’t get balled up in their nonsense argument.  The fact remains that free speech doesn’t discriminate.  It means free speech for all, regardless of what group or entity represented.

This is a long overdue dismantling of a anti-liberty law.  Most people understand that fundamental truth.  And most people also understand that government should not be in the business of deciding who can or can’t speak out during a political campaign.  In fact, the fundamental purpose of the 1st Amendment was the protection of political speech.  Congress seems to have lost sight of that.

Any argument for the reinstatement of this law or any law which resembles it is an argument to limit political speech.   While you may not be happy with the fact that you’ll now see even more advertising than before, it is a fundamental victory for liberty and those that love liberty should applaud it.