Obama allows Holder to “hide behind” executive privilege
I’m sure no one is surprised that the most transparent administration in history has chosen to invoke executive privilege in the Fast and Furious investigation being conducted by Congress and deny that institution it’s ability to conduct its oversight responsibility.
Here’s President Obama as candidate Obama in 2007 talking about the use of executive privilege (btw, irony alert – note the CNN banner – the answer? No.):
That was then when it was the GOP’s fat in the fire. However, now that it is his and Eric Holder’s that’s being roasted, well that’s different.
Sen. Charles Grassley (R., Iowa) criticized the White House. "How can the president exert executive privilege over documents he’s supposedly never seen?" Mr. Grassley said.
Details, details.
At issue are Justice Department documents that Messrs. Issa and Grassley have sought and that the department resisted turning over in the congressional investigation into a botched gun-trafficking probe called Fast and Furious. The department said the documents reflected internal deliberation or were related to continuing criminal investigations and therefore weren’t subject to congressional subpoena.
Of course no one knows if any of that is true (or true of all the documents requested) since no one outside the Justice Department is able to inspect them. And this was an operation that AG Holder characterized as a “low-level operation”. Now, suddenly it needs executive protection? Seems like a heck of a sudden escalation in “levels” doesn’t it?
Apparently the decision to invoke executive privilege came after a meeting between AG Holder and Rep. Issa:
Messrs. Issa and Holder met Tuesday for 20 minutes. From their accounts, it has become a game of chicken, with each side insisting the other act first to resolve the standoff.
Mr. Holder said Mr. Issa rejected his offer to provide documents because the lawmaker wouldn’t agree that they would fulfill a subpoena, effectively ending the contempt threat. Mr. Issa said the attorney general didn’t come prepared to provide documents and that the contempt threat can’t be removed until the documents are produced.
Holder then proceeded to take the documents off the table via the President and executive privilege.
Mr. Grassley said Tuesday night: "The attorney general wants to trade a briefing and the promise of delivering some small, unspecified set of documents tomorrow for a free pass today. He wants to turn over only what he wants to turn over and not give us any information about what he’s not turning over. That’s unacceptable. I’m not going to buy a pig in a poke. Chairman Issa is right to move forward to seek answers about a disastrous government operation."
Contempt of Congress should now move forward. Frankly, Holder has been contemptuous of the law since the first day he took the office of the Attorney General.
And, for most folks, human nature says that those who have something they don’t want known have a tendency to try to hide it. Whether true or not, that’s how it appears … just as it did in the example in the video when Obama spoke out against the use of what he invoked today.
Matt Burden came up with my favorite bit of irony today as concerns this burgeoning fiasco:
Okay, I want to know what freaking idiot leaks all kinds of classified operations putting military, civilian agents, and allies at risk but pulls EXECUTIVE PRIVILEGE on Fast and Furious documents (that AG Holder said was a low level op)?!
Oh, wait…
Heh …
~McQ
Twitter: @McQandO
Quote of the Day: McCain says more dumb things edition
In a recent rant about money in politics, a still bitter Sen. John McCain, had this to say about billionaire Sheldon Adleson’s 10 million dollar donation to the pro-Romney Super PAC, Restore Our Future.
"Much of Mr. Adelson’s casino profits that go to him come from his casino in Macau, which says that obviously, maybe in a roundabout way foreign money is coming into an American political campaign," McCain said in an interview on PBS’s News Hour.
"That is a great deal of money, and we need a level playing field and we need to go back to the realization… that we have to have a limit on the flow of money and corporations are not people," he said.
That is one of the stupidest attempts to tie money to a foreign government I’ve yet seen. And make no mistake, that’s precisely what McCain is trying to imply here. There is no other reason to bring up the source. It’s a bit like saying that if Adelson had casinos on the French Riviera that he would be funneling French money into the election.
Hey, McCain, he also owns half of Las Vegas. Oh, and the “profits” from “Macau”? They come from people who have lost money there (and, btw, they’re not all Chinese).
McCain still can’t get over the fact that his attempt to stifle free speech was found to be unconstitutional.
McCain called the decision "the most misguided, naïve, uninformed, egregious decision of the United States Supreme Court in the 21st Century," and money would be playing a dominant role in American politics for the foreseeable future.
"There will be scandals, there’s just too much money washing around Washington today… I’m afraid we’re for a very bleak period in American politics," he said. "To somehow view money as not having a corrupting effect on elections flies in the face of reality."
His reasoning is a bit like the gun grabbers reasoning that it is guns that are the cause of violent crime, not people. He believes that if the means of corruption is removed, there’ll be no corruption.
Really? What is naïve, misguided and uniformed is thinking like that, not to mention repeated attempts to control political speech by this man.
If there is a Tea Party in Arizona, please, do a Dick Lugar on this guy.
~McQ
Twitter: @McQandO
Civil asset forfeiture: a legal scam
As I’ve mentioned before, this is one that burns me up about as much as anything that government/law enforcement does. Again, I want to make it clear – this nonsense exists because of the drug war.
Civil asset forfeiture is based on the premise that a piece of property — a car, a pile of cash, a house — can be guilty of a crime. Laws vary from state to state, but generally, law enforcement officials can seize property if they can show any connection between the property and illegal activity. It is then up to the owner of the property to prove in court that he owns it or earned it legitimately. It doesn’t require a property owner to actually be convicted of a crime. In fact, most people who lose property to civil asset forfeiture are never charged.
The laws were created to go after the ill-gotten gains of big-time dealers, but critics say they’ve since become a way for police departments to generate revenue — often by targeting lower-level offenders.
In fact, in the case I’m about to relate, law enforcement has put together as much a “sure thing” as can be imagined. Read this and be disgusted:
When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail.
She used part of her disability payment and her tax return. Joel Greer’s wife also chipped in, as did his brother and two sisters. On Feb. 29, a judge set Greer’s bail at $7,500, and his mother called the Brown County jail to see where and how she could get him out. "The police specifically told us to bring cash," Greer says. "Not a cashier’s check or a credit card. They said cash."
So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.
Instead jail officials called in the same Drug Task Force that arrested Greer. A drug-sniffing dog inspected the Greers’ cash, and about a half-hour later, Beverly Greer said, a police officer told her the dog had alerted to the presence of narcotics on the bills — and that the police department would be confiscating the bail money.
"I told them the money had just come from the bank," Beverly Greer says. "We had just taken it out. If the money had drugs on it, then they should go seize all the money at the bank, too. I just don’t understand how they could do that."
The Greers had been subjected to civil asset forfeiture, a policy that lets police confiscate money and property even if they can only loosely connect them to drug activity. The cash, or revenue from the property seized, often goes back to the coffers of the police department that confiscated it. It’s a policy critics say is often abused, but experts told The HuffPost that the way the law is applied to bail money in Brown County is exceptionally unfair.
Indeed it was. Why? Because the county demanded cash, and, as Snopes tells us, about 80% of the cash in the US has traces of drugs on them (specifically cocaine):
In one 1985 study done by the U.S. Drug Enforcement Administration on the money machines in a U.S. Federal Reserve district bank, random samples of $50 and $100 bills revealed that a third to a half of all currency tested bore traces of cocaine. Moreover, the machines themselves were often found to test positive, meaning that subsequent batches of cash fed through them would also pick up cocaine residue. Expert evidence given before a federal appeals court in 1995 showed that three out of four bills randomly examined in the Los Angeles area bore traces of the drug. In a 1997 study conducted at Argonne National laboratory, nearly four out of five bills in Chicago suburbs were found to bear discernible traces of cocaine. In another study, more than 135 bills from seven U.S. cities were tested and all but four were contaminated with traces of cocaine. These bills had been collected from restaurants, stores and banks in cities from Milwaukee to Dallas.
A single bill used to snort cocaine or otherwise mingled with the drug can contaminate an entire cash drawer. When counting and sorting machines (which fan the bills, and thus the cocaine) are factored in, it’s no wonder that so much of the currency now in circulation wouldn’t pass any purity tests.
Of course, you can bet Brown County law enforcement is completely aware of this little factoid, thus the cash requirement for bail and, for them, the profitable inevitable outcome.
That’s why I call it what it truly is – a scam to cheat people out of their money perpetrated by the very people whose job it is to protect you from scam artists. You have law enforcement knowingly setting up a situation in which they’re sure they’ll be able to take bail money under this civil asset forfeiture travesty because it will test positive for drugs.
In this case, it didn’t turn out so well for the thieves at the sheriff’s office:
It took four months for Beverly Greer to get her family’s money back, and then only after attorney Andy Williams agreed to take their case. "The family produced the ATM receipts proving that had recently withdrawn the money," Williams says. "Beverly Greer had documentation for her disability check and her tax return. Even then, the police tried to keep their money."
In this case there’s a fairly simple way to stop this sort of blatant thievery. More options for payment (cashier’s check) other than cash.
However, it is civil asset forfeiture that needs to go the way of the Dodo bird:
In 2010, the Institute for Justice (IJ), a libertarian law firm, rated the forfeiture laws in all 50 states, assigning higher grades to states with fairer policies. The firm gave Wisconsin a "C." When there’s less than $2,000 at stake, law enforcement agencies in the state get to keep 70 percent of what they take. If more than $2,000 is taken, departments can keep half.
But in all states, police agencies can contact the Drug Enforcement Administration (DEA), making the case federal, and under federal law, local police departments can keep up to 80 percent of forfeiture proceeds, with the rest going to the Department of Justice. The institute reports that between 2000 and 2008, police agencies in Wisconsin took in $50 million from this "equitable sharing" program with the federal government.
When provided such an incentive, what is the usual reaction? As demonstrated by this particular case where they took bail money, it has nothing to do with the pursuit of “big-time dealers” does it? Instead, they’re just after low hanging fruit, which in this case also happened to be low-income people who had to scrape and borrow just to raise the bail.
That’s “law enforcement”?
That’s scamming the public for profit. And it is an inexcusable breach of trust between law enforcement and the public.
If anyone should be in jail, it is those who’ve perpetrated this travesty and those who use it to cheat the public.
~McQ
Twitter: @McQandO
Another bad day at the Supreme Court for the Obama administration
When the oral arguments were being made for ObamaCare, I made the observation that Solicitor General Donald Verrilli sounded like a man trying to defend arguments he really didn’t believe in. Add to that the fact that they were weak arguments and you have a man facing the Supreme Court who sounded like he was in over his head.
Verrilli had another such day yesterday, as John Hinderaker at Powerline notes. This time the court was hearing arguments about the Arizona immigration law. Hinderaker reviewed the transcript of Verilli’s arguments and concluded, “the problem was not with Verrilli but rather with the quality of the arguments that he was required to make by his client, the Obama administration.”
Example:
JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?
GENERAL VERRILLI: No. We have a legitimate interest in enforcing the law, of course, but it needs to be — but these — this Court has said over and over again, has recognized that the — the balance of interest that has to be achieved in enforcing the — the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations, it involves humanitarian concerns, and it also involves public order and public –
Hinderaker calls the response “incoherent”. Scalia follows up:
JUSTICE SCALIA: So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?
GENERAL VERRILLI: No, Your Honor, but what — no, Your Honor, I’m not saying that –
JUSTICE SCALIA: Sounded like what you were saying.
That’s pretty pointed. That also indicates that the argument isn’t resonating with the court. Hinderaker summarizes the argument that Verrilli is being forced to defend:
Of course, what is going on here is that the Obama administration doesn’t want to enforce the immigration laws that Congress has enacted. The essence of its position in the Arizona case is that the federal government has the right to decide not to enforce the law, and if it so decides, then no state has the power, under the Constitution, to do anything that would tend to enforce those federal laws. So if the Obama administration decides that it will gain political advantage by ignoring federal laws against illegal immigration, states like Arizona just have to take the consequences without complaining.
That understanding is what is driving questions like those from Scalia and Kennedy. It is indeed an indefensible position, especially in a nation that claims to be a nation of laws, not men.
How indefensible? Even Justice Sotomayor isn’t buying:
JUSTICE SOTOMAYOR: Can I get to a different question? I think even I or someone else cut you off when you said there were three reasons why — 2(B). Putting aside your argument that this — that a systematic cooperation is wrong — you can see it’s not selling very well — why don’t you try to come up with something else? Because I, frankly — as the chief has said to you, it’s not that it’s forcing you to change your enforcement priorities. You don’t have to take the person into custody. So what’s left of your argument?
Of course this sets up the inevitable “shock” on the left. I’m sure they thought that, as in the case of ObamaCare, their arguments were Constitutionally ironclad.
While Verrilli may not be the smoothest SG we’ve ever had, he’s been consistently thrust before the court with abysmal arguments in which he is forced to defend laws or actions which are at best questionably constitutional. At best.
When even a Obama appointed justice isn’t buying the administration’s argument, well, it must be a pretty lousy argument. And, of course, claiming the right not to enforce the law and then claiming Constitutional cover to force states to have to live with the results of the federal government’s decision not to enforce the laws of the land is a pretty lousy argument.
But that’s what he’s stuck with.
Obviously none of this means the court will end up finding for Arizona. But, as Lyle Denniston at SCOTUS blog points out, indications seem to point to some interest in the court in doing so:
In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally. And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active.
At the end of the argument in Arizona v. United States (11-182), though, the question remained how a final opinion might be written to enlarge states’ power to deal with some 12 million foreign nationals without basing that authority upon the Scalia view that states have a free hand under the Constitution to craft their own immigration policies. The other Justices who spoke up obviously did not want to turn states entirely loose in this field. So perhaps not all of the four clauses would survive — especially vulnerable may be sections that created new state crimes as a way to enforce federal immigration restrictions.
As should be clear, there seems to be an interest in accommodating portions of the Arizona law that the court feels are “reasonable”. That is contrary to what the left assured us would be the courts position on Arizona’s “draconian” immigration law.
In fact, should the court find for Arizona in some of the key provisions, I’m sure we’ll hear the left’s usual defense – judicial activism.
The irony, of course, is that the Obama economy has been the best means of reversing the tide of illegal immigration. According to reports we now have net illegal emigration taking place.
That seems like the perfect point to settle this. The federal government, under the Constitution, has a legal obligation to enforce the laws passed by Congress. It hasn’t been doing that. And that’s the real point here. It will be interesting to see how the court handles that particular point. Meanwhile, it appears that key portions of the AZ bill may survive.
~McQ
Twitter: @McQandO
There’s a reason Nancy Pelosi is the least popular member of Congress
She’s dangerously thick but in a position of power. This is the woman who attempted to redefine what it means to be Catholic (because actual Catholicism didn’t support her views on abortion). She passed a piece of legislation called ObamaCare without even knowing what was in it.
Now she wants to redefine free speech. Said Ms. Pelosi, while discussing Citizens United v. FEC (via The Rightscoop):
We have a clear agenda in this regard: Disclose, reform the system reducing the roll of money in campaigns, and amend the Constitution to rid it of this ability for special interests to use secret, unlimited, huge amounts of money flowing to campaigns.
I think one of the presenters [at a Democratic forum on amending the Constitution] yesterday said that the Supreme Court had unleashed a predator that was oozing slime into the political system, and that, indeed, is not an exaggeration. Our Founders had an idea. It was called democracy. It said elections are determined by the people, the voice and the vote of the people, not by the bankrolls of the privileged few. This Supreme Court decision flies in the face of our Founders’ vision and we want to reverse it.
Obviously she’s about as much a Constitutional Scholar as our President.
The First Amendment pertains to freedom of political speech and requires Congress to “make no law …” that would suppress it.
Ed Morrissey said it best:
The best campaign finance reform is still transparency. If burning a flag in the street is free speech, then so are political contributions, especially when made in the open. If the reformers in Congress want to clean up elections, then force immediate reporting on the Internet of all contributions to all presidential, Senate, and Congressional races, and full weekly financial reports on expenditures. That will do more than all of the speech-restricting, unconstitutional efforts made since Watergate, and make the entire system a lot more honest.
That’s where she and the left should be headed with this (after this campaign season of course – they want all that slime to flow into their coffers for at least the rest of this year).
Bottom line, Ms. Pelosi – “Congress shall make no law …”.
What part of that don’t you understand?
~McQ
Twitter: @McQandO
Congress to mandate “black box” on all cars after 2015?
Yesterday I pointed to a piece of legislation that is in the House right now (after being passed by the Senate) which would give the IRS the power to confiscate your passport without judicial review and merely on the suspicion you owe a certain amount of back taxes.
Given the Orwellian name Moving Ahead for Progress in the 21st Century Act or MAP-21, the legislation also mandates that all new cars have a “event data recorder” installed starting in 2015.
Now other than for government use, there are very few reasons why an owner of a vehicle would want such a device installed in his or her car.
The only reason an owner might want one was in case of an accident, it may provide some proof of their innocence in terms of fault. But we’ve become quite sophisticated in accident investigation already and seem quite capable of determining that now without the aid of an onboard “event data recorder”.
Section 31406 of Senate Bill 1813 (known as MAP-21), calls for “Mandatory Event Data Recorders” to be installed in all new automobiles and legislates for civil penalties to be imposed against individuals for failing to do so.
“Not later than 180 days after the date of enactment of this Act, the Secretary shall revise part 563 of title 49, Code of Federal Regulations, to require, beginning with model year 2015, that new passenger motor vehicles sold in the United States be equipped with an event data recorder that meets the requirements under that part,” states the bill.
Nice.
Although the text of legislation states that such data would remain the property of the owner of the vehicle, the government would have the power to access it in a number of circumstances, including by court order, if the owner consents to make it available, and pursuant to an investigation or inspection conducted by the Secretary of Transportation.
And, one would assume, government access to such data would be expanded as government found additional reasons to want it. Not to mention the addition of new “recording” devices or the like which might be even more intrusive in the future (if they manage to get away with this). Like imposing a road use tax. How handy would such a device be to government then?
This sort of government intrusion bothers the heck out of me. Never mind that this mandate (along with new CAFÉ standards) will increase the cost of a new car, the real point is this is being done as something government desires, not the individual. There’s no hew and cry or demand for such a device now. This serves one constituency and one constituency only – government.
Additionally, it isn’t optional. You have no choice but to pay for one if you buy a new car. And you will most likely be prosecuted if you disable it.
These are the sorts of intrusions citizens ought to be fighting tooth and nail. It isn’t the job of government to mandate recording devices on private vehicles. If they want to have them installed on their vehicle fleets, that’s fine.
But not mine. Not without my consent and damn sure not as a mandate with legal consequences for non-compliance.
There are now two reasons MAP-21 should be shot down in the House.
~McQ
Twitter: @McQandO
IRS to have power to confiscate passport?
Iguess we’ve moved into the realm of “guilty until you prove yourself innocent”:
The Republican House of Representatives may soon follow the Democratic Senate and give the IRS the power to confiscate your passport on mere suspicion of owing taxes. There’s no place like home, comrade.
‘America, Love It Or Leave It" might be an obsolete slogan if the "bipartisan transportation bill" that just passed the Senate is approved by the House and becomes law. Contained within the suspiciously titled "Moving Ahead for Progress in the 21st Century Act," or "MAP 21," is a provision that gives the Internal Revenue Service the power to keep U.S. citizens from leaving the country if it finds that they owe $50,000 or more in unpaid taxes — no court ruling necessary.
Note … “mere suspicion”. Like the IRS screws up its audit and thinks you owe more than you do (and at least $50k), your passport is yanked without going to court.
Let freedom ring, eh?
And, as the lede points out, it isn’t just the Democrats. Another attempt by both parties to shred the Constitution.
This is not the sort of power an unaccountable agency should be given. Any idea of how many people will suddenly find themselves on the wrong end of a suspicion they owe $50k or more in taxes? Whether true or not, with the power to grab your passport and only a suspicion needed (no court order), the IRS will likely “suspect” many people owe at least that much.
That’s certainly consistent with the history of such granted power. Go to the extreme quickly – there’s no reason not too. No penalty for them, certainly. Oh, you don’t owe $50k? Here’s your passport.
“Moving Ahead for Progress in the 21st Century”?
Since when is changing the IRS to a form of the KGB a “move ahead?”
~McQ
Twitter: @McQandO
In praise of lazy Harry Reid
Okay, yes, it’s a bit of a sarcastic title, but in a sense I mean it:
For those who need proof that the Senate was a do-nothing chamber in 2011 beyond the constant partisan bickering and failure to pass a federal budget, there is now hard evidence that it was among the laziest in 20 years.
In her latest report, Secretary of the Senate Nancy Erickson revealed a slew of data that put the first session of the 112th Senate at the bottom of Senates since 1992 in legislative productivity, an especially damning finding considering that it wasn’t an election year when congressional action is usually lower.
For example, while the Democratically-controlled Senate was in session for 170 days, it spent an average of just 6.5 hours in session on those days, the second lowest since 1992. Only 2008 logged a lower average of 5.4 hours a day, and that’s when action was put off because several senators were running for president, among them Hillary Clinton, Barack Obama and John McCain.
On the passage of public laws, arguably its most important job, the Senate notched just 90, the second lowest in 20 years, and it passed a total of 402 measures, also the second lowest. And as the president has been complaining about, the chamber confirmed a 20-year low of 19,815 judicial and other nominations.
Frankly, I think Congress should be a part-time job. That was the way it was designed at the founding. Come in, do the work necessary – you know, such as pass a budget? – and then go back to your real job.
So, in reality, I’m not against a Senate that doesn’t do much. Unfortunately, we have an activist president who is more than happy to use the Senate’s laziness as a pretext for issuing executive orders and accomplishing his agenda via executive agencies with no accountability to the people.
And, it appears, Harry Reid is fine with that – not that anyone should be particularly surprised by that.
It is the only way Reid can apparently assist the President in doing what he wants to do. You know, provide an excuse. “We can’t wait on Congress”, something that is only a problem since the GOP took the House one assumes. Of course somehow even lazy Harry Reid managed to at least rouse himself long enough to pass that abomination we know as ObamaCare.
Once that was done, he went back into tax-payer subsidized hibernation.
But with Reid, how do you tell?
~McQ
Twitter: @McQandO
Obama’s criticism of SCOTUS hardly “scholarly”
There are times when even I’m a bit surprised at what manages to work its way out of our President’s mouth. After all, included in what little we do know about the guy is the claim that he was a “Constitutional lawyer”. He even taught that in Chicago to law students, or so we’re told.
Yet yesterday, in a press conference with the leaders of Mexico and Canada he was asked about the pending Supreme Court decision on ObamaCare and said:
“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress.”
I can’t imagine a more supremely arrogant and yet profoundly ignorant statement than that. Of course, at least in my day, most school children would have understood the ignorance of that statement.
I’ll illustrate it for you if necessary by adding a bit to his words:
“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress that allows whites to lynch blacks.”
Obviously he’d be clamoring for the SCOTUS to overturn a law like that. And he wouldn’t hesitate to condemn the “strong majority of democratically-elected” officials that passed such a law n the first place (and lets pretend this was signed before he assumed office – you know, Bush did it). Strong majorities (in the case of ObamaCare it was 219 to 212) passing anything are irrelevant if what they pass is in conflict with the Constitution – period.
In the hypothetical most of us would immediately identify the fact that a) murder and lynching are not within the power of any majority to sanctify and certainly not a power granted in the Constitution and b) it is the job of the Supreme Court to strike down laws that are unconstitutional regardless of how strong the majority voting for it.
I can’t imagine a supposed, or at least self-described, Constitutional scholar making such an ignorant statement to begin with … but there it is. He then followed it up with this:
“I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.”
Smartest guy in the room? I’m sorry, but that just doubles down on ignorance.
As we’ve discussed (most recently on the podcast) it isn’t the job of the Supreme Court to do the job of Congress. Instead, its job is to determine whether or not what Congress has done is compliant with the limits the Constitution places on it. That’s it. There is nothing which requires the Supreme Court to “fix” laws that Congress has passed.
Justice Kennedy alluded to this when he said that the removal of the individual mandate would completely change the law in a way that was clearly not what Congress intended. Thus the “conservative” thing for the court to do would be to strike down the entire law and tell Congress to go back to work. Of course the Democrats and Obama know that if the entire law is struck down, the likelihood of it being “fixed”, given the Republican House, are remote. Thus we hear the usual nonsense about “judicial activism” and the other garbage Obama tossed out above making the rounds on the left.
Then there’s the remark about “an unelected group of people”. My goodness Constitutional scholar, they’re “unelected” and appointed for life for a reason. And that reason is to remove politics, as much as possible, from their deliberations and allow them to focus entirely on the law and Constitution. Obviously, it seems, politics haven’t been kept out of the Supreme Court, but for the President to take a juvenile shot like that at the Court while it is in deliberations is fairly outrageous.
Bottom line: If those Obama quotes now illustrate “Constitutional scholarship” in this day and age, this Republic is in very deep trouble.
~McQ
Twitter: @McQandO
The liberal shock at the collapse of ObamaCare’s “Constitutional” arguments
I think it is felt, whether true or not at this point since we really don’t know, that ObamaCare is in real trouble. You can see it everywhere with the NY Time opining that overturning it would be judicial activism and the various and sundry liberal blogs bleating out the same refrain. They’re shocked. They’re stunned. They’ve decided they have to somehow characterize this as they tried to do Bush v. Gore, as a form of judicial malfeasance.
But as Don Surber points out, the arguments against the law aren’t new even if the left tried to wave them off and pretend they were weak.
And so, as John Podhoretz argues:
I diagnose the shock at the powerful Constitutional arguments advanced against Obama’s health-care plan as another example of the self-defeating parochialism of American liberals, who are continually surprised that conservative ideas and conservative arguments are formidable and can only be bested if they are taken seriously: “the strength of the conservative arguments only came as a surprise to [Jeffrey] Toobin, [Linda] Greenhouse and others because they evidently spent two years putting their fingers in their ears and singing, ‘La la la, I’m not listening’ whenever the conservative argument was being advanced.”
Its really not “conservative” ideas we’re talking about here (honestly, they’ve gone along with plenty of laws which shred the Constitution), but instead fundamental ideals on which the country was founded. They were certainly advanced by conservatives in this case. They are powerful ideas and I agree with Podhoretz, that liberals just waved them off. They could not conceive of a law filled to the brim with good intentions (no matter how abysmal its execution or horrendous its cost) could be found as anything but Constitutional.
I can only suggest that their earlier takeover of the public education system left them in a civics class knowledge deficit about what the Constitutions says. Must have happened about the time they decided schools had the job of indoctrinating youth about sex education and the like.
So as the law’s date with SCOTUS approached the left was supremely confident:
Twenty-six states and the National Federation of Independent Business challenged the constitutionality of President Obama’s signature piece of domestic legislation, the Patient Protection and Affordable Care Act. The sophistries on which the Obamaphiles relied to defend their health care power grab were perhaps best summarized by Slate legal columnist Dahlia Lithwick: “That the law is constitutional is best illustrated by the fact that — until recently — the Obama administration expended almost no energy defending it.”
That lack of energy came back to haunt them Tuesday when Solicitor General Donald Verrilli turned in a stammering, barely coherent performance worthy of the public defender in My Cousin Vinny as he struggled to articulate a constitutional defense of Obamacare. The arguments went only slight better for Verrilli yesterday. The administration seemed ill prepared to answer even basic, predictable questions about the law’s constitutional basis.
Absolutely correct. Verrilli was awful and that is acknowledged by both sides (it was like he was arguing for something he just really didn’t believe in at times).
It’s not surprising that liberals, most of whom have not read or shown interest in the arguments of the challengers, were stunned to learn that there really is a constitutional difference between taxing and regulating and between inducing one into commerce and regulating commerce that already exists. It is this failure to understand, let alone imagine that constitutional text has meaning and there are actual limitations on federal power, that explains the stunned reaction of the liberal elite. Like puppies smacked on the nose by a rolled-up copy of the Constitution, they are flabbergasted.
Greg Sargent seems to understand the point:
But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.
But as usual, tries to make it personal and political instead of acknowledging the power of the arguments against the law:
All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.
Or in other words, sticking up for the foundational principles underlying the US Constitution is now a “hard right” thing. Any possibility they’ll continue to be “shocked” in the future?
They will if they repeat the “arrogant, dismissive and ill-prepared” tactic in the future.
Again, we don’t know how this will actually end and have to be careful about reading too much into the oral arguments, but that said it is hard not to note how poorly those arguments went for the administration and at least realize that after arrogantly ramming the bill through the Democratic controlled Congress and waving it around triumphantly in the face of those who opposed it, its at least an enjoyable bit of schadenfreude going on right now, isn’t it?
~McQ
Twitter: @McQandO