It’s Friday, March 23rd, 2012….and here’s The Gouge!

First up, the WSJ accurately states the stakes of the upcoming contest:

Liberty and ObamaCare

The Affordable Care Act claims federal power is unlimited. Now the High Court must decide.

 

Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.

Consider a White House strategy memo that leaked this month, revealing that senior Administration officials are coordinating with liberal advocacy groups to pressure the Court. “Frame the Supreme Court oral arguments in terms of real people and real benefits that would be lost if the law were overturned,” the memo notes, rather than “the individual responsibility piece of the law and the legal precedence [sic].” Those nonpolitical details are merely what “lawyers will be talking about.”

The White House is even organizing demonstrations during the proceedings, including a “‘prayerful witness’ encircling the Supreme Court.” The executive branch is supposed to speak to the Court through the Solicitor General, not agitprop and crowds in the streets.

The Supreme Court will not be ruling about matters of partisan conviction, or the President’s re-election campaign, or even about health care at all. The lawsuit filed by 26 states and the National Federation of Independent Business is about the outer boundaries of federal power and the architecture of the U.S. political system.

The argument against the individual mandate—the requirement that everyone buy health insurance or pay a penalty—is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.

This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly—though not without limit—and it has. It could even mandate that people use insurance to purchase the services of doctors and hospitals, because then it would be regulating market participation. But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.

This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.

The framers feared arbitrary and centralized power, so they designed the federalist system—which predates the Bill of Rights—to diffuse and limit power and to guarantee accountability. Upholding the ObamaCare mandate requires a vision on the Commerce Clause so broad that it would erase dual sovereignty and extend the new reach of federal general police powers into every sphere of what used to be individual autonomy.

These federalist protections have endured despite the shifting definition and scope of interstate commerce and activities that substantially affect it. The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was “an addition which few oppose, and from which no apprehensions are entertained.” The Father of the Constitution also noted that the powers of the states are “numerous and infinite” while the federal government’s are “few and defined.”

That view changed in the New Deal era as the Supreme Court blessed the expansive powers of federal economic regulation understood today. A famous 1942 ruling, Wickard v. Filburn, held that Congress could regulate growing wheat for personal consumption because in the aggregate such farming would affect interstate wheat prices. The Court reaffirmed that precedent as recently as 2005, in Gonzales v. Raich, regarding homegrown marijuana.

The Court, however, has never held that the Commerce Clause is an ad hoc license for anything the government wants to do. In 1995, in Lopez, it gave the clause more definition by striking down a Congressional ban on carrying guns near schools, which didn’t rise to the level of influencing interstate commerce. It did the same in 2000, in Morrison, about a federal violence against women statute.

A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.

The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses—think of housing, or credit-card debt. Health costs are unpredictable—but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage—though then again, similar cost-shifting is the foundation of bankruptcy law.

The reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service. The government is asserting that because there are ultimate economic consequences it has the power to control the most basic decisions about how people spend their own money in their day-to-day lives. The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else.

Confronted with these concerns, the Administration has echoed Nancy Pelosi when she was asked if the individual mandate was constitutional: “Are you serious?” The political class, the Administration says, would never abuse police powers to create the proverbial broccoli mandate or force people to buy a U.S.-made car.

But who could have predicted that the government would pass a health plan mandate that is opposed by two of three voters? The argument is self-refuting, and it shows why upholding the rule of law and defending the structural checks and balances of the separation of powers is more vital than ever.

Another Administration fallback is the Constitution’s Necessary and Proper Clause, which says Congress can pass laws to execute its other powers. Yet the Court has never hesitated to strike down laws that are not based on an enumerated power even if they’re part of an otherwise proper scheme. This clause isn’t some ticket to justify inherently unconstitutional actions.

In this context, the Administration says the individual mandate is necessary so that the Affordable Care Act’s other regulations “work.” Those regulations make insurance more expensive. So the younger and healthier must buy insurance that they may not need or want to cross-subsidize the older and sicker who are likely to need costly care. But that doesn’t make the other regulations more “effective.” The individual mandate is meant to offset their intended financial effects.

Some good-faith critics have also warned that overturning the law would amount to conservative “judicial activism,” saying that the dispute is only political. This is reductive reasoning. Laws obey the Constitution or they don’t. The courts ought to defer to the will of lawmakers who pass bills and the Presidents who sign them, except when those bills violate the founding document.

As for respect of the democratic process, there are plenty of ordinary, perfectly constitutional ways the Obama Democrats could have reformed health care and achieved the same result. They could have raised taxes to fund national health care or to make direct cross-subsidy transfers to sick people. They chose not to avail themselves of those options because they’d be politically unpopular. The individual mandate was in that sense a deliberate evasion of the accountability the Constitution’s separation of powers is meant to protect.

Meanwhile, some on the right are treating this case as a libertarian seminar and rooting for the end of the New Deal precedents. But the Court need not abridge stare decisis and the plaintiffs are not asking it to do so. The Great Depression farmer in Wickard, Roscoe Filburn, was prohibited from growing wheat, and that ban, however unwise, could be reinstated today. Even during the New Deal the government never claimed that nonconsumers of wheat were affecting interstate wheat prices, or contemplated forcing everyone to buy wheat in order to do so.

The crux of the matter is that by arrogating to itself plenary police powers, the government crossed a line that Justice Anthony Kennedy drew in his Lopez concurrence. The “federal balance,” he wrote, “is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scale too far.”

The constitutional questions the Affordable Care Act poses are great, novel and grave, as much today as they were when they were first posed in an op-ed on these pages by the Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The appellate circuits are split, as are legal experts of all interpretative persuasions.

The Obama Administration and its allies are already planning to attack the Court’s credibility and legitimacy if it overturns the Affordable Care Act. They will claim it is a purely political decision, but this should not sway the Justices any more than should the law’s unpopularity with the public.

The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.

And if they don’t….

 ….and we for one will be willing to risk the consequences.  ‘Twill be no less a sacrifice than the Founders saw fit to offer….and in the words of the immortal Nathan Hale, our only regret will be we have but one life to lose for our country.  But trust us….we’ll make it count.

In a related item, James Taranto details the arguments offered by those who view the unlimited government inherent in ObamaScare as heralding the Golden Age of man:

The Ineffective Greenhouse

A liberal legal legend’s ludicrous ObamaCare defense.

 

Linda Greenhouse is something of an institution of legal journalism. She became the New York Times’s Supreme Court correspondent in 1978. Thirty years later, when she accepted an early-retirement package from the financially stressed newspaper, Legal Times reported that a 7-2 majority of the justices threw a going-away party for her, “complete with cheese, desserts, and prosecco wine.”

Greenhouse still writes for the Times, only she’s moved to the editorial page’s “Opinionator” blog. Last night she weighed in with a revealing post about the ObamaCare cases, in which the high court hears oral arguments next Monday through Wednesday and is expected to issue a ruling at the end of its term in early summer. She opens with a close examination of her own venerable navel:

Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over “intelligent design,” for example, and treating climate change naysayers as cranks.

Court cases are trickier. It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win.

The way to do what Greenhouse wishes to do–let readers in on the “fact” that one side in this litigation “doesn’t deserve to win”–is by doing what Greenhouse has done, namely become an opinion writer. A judgment about which side deserves to win a legal case is not a fact but an opinion. Even when it is authoritative, as it will be in this case when a majority of the justices hand down a ruling, it is still an opinion, often accompanied by differing opinions known as dissents and concurrences.

Greenhouse is not a judge, so her opinions are no more authoritative than those of your humble columnist. (She doesn’t even have a JD, let alone any special expertise in constitutional law.) What’s more, on the merits, her opinion on the ObamaCare case is shallow, disingenuous and silly:

I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word “unprecedented” 10 times, by my count–I probably missed some–not counting such other formulations of the same thought as “novel” and “first ever.” O.K., I get it. I’ll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world’s most irrational health care system. It should have happened much earlier.

Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. . . . (So THAT’S what the Constitution is all about….guaranteeing the first half-Black President his “major domestic achievement!)

The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. . . . So there must be some problem with the Affordable Care Act other than “never before.”

Although we’ve elided some of Greenhouse’s verbiage, this is a fair representation of her argument, if one can call it that. It boils down to repeatedly sneering at the word “unprecedented” as if the litigants’ claim were no more than that ObamaCare’s individual mandate is a new development in politics or policy. She simply ignores the legal significance of ObamaCare’s lack of precedent.

That significance is great. “The command of precedent has deep roots in Anglo-American legal tradition,” one Supreme Court observer has noted. “Lawyers and judges often use the Latin phrase ‘stare decisis,’ meaning ‘to stand by things decided.’ ” The court has never decided the question posed by ObamaCare: whether the Commerce Clause gives Congress the power to require that individuals purchase a financial instrument from a private company. Since no existing precedent authorizes the individual mandate, the court can strike down the ObamaCare mandate without offending stare decisis.

The Supreme Court observer we quoted in the preceding paragraph was none other than Linda Greenhouse, writing in the Times in 1991. Unless she has forgotten such an elemental legal principle, her mockery of the litigants for noting that ObamaCare is unprecedented is not merely ignorant but intellectually dishonest. (Now THERE’S a shock!) She is trying to mislead her readers, and possibly herself, into thinking that the case against ObamaCare is without merit.

To say that the case is not without merit is not to say that it will prevail. Greenhouse writes that she expects the court to uphold ObamaCare “by a wide margin,” although she acknowledges that her prediction isn’t guaranteed to pan out. Our sense from our own private conversations is that a considerable number of elite conservative lawyers agree with Greenhouse about the likely outcome of the case (if not the merits). It is quite possible that they, and she, will turn out to be right, but we are not at all convinced.

For one thing, the justices who will decide the case surely understand that they will be making new law if they uphold the individual mandate as surely as if they strike it down. Greenhouse unwittingly acknowledges this point even as she tries to deny it:

If [as the court held in Gonzales v. Raich in 2005] the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

This is the slippery slope as an affirmative argument. Undeniably the court has–wrongly, in the view of some observers, including this columnist–interpreted the Commerce Clause as granting vast powers to Congress. In Greenhouse’s mind, there is no distinction between vast and unlimited. As far as she’s concerned, the Congress has the authority to “basically do whatever it wants.” Is the Roberts court really prepared to endorse such a radical principle? Color us skeptical.

One reason for our skepticism is political. Wickard was one of a series of New Deal-era cases in which the Supreme Court, under pressure from a popular president at a time of national crisis, greatly (though not infinitely) expanded Congress’s power under the Commerce Clause. Raich, which currently defines the outer bound of congressional commerce power, involved the enforcement of federal drug laws, which have wide (if somewhat dwindling) popular support.

By contrast, ObamaCare is widely hated. Greenhouse cites a recent Kaiser Family Foundation survey finding that a majority of Americans would like to see the court overturn the individual mandate. A Gallup poll put the figure at 72%. One theory behind the speculation that the justices will uphold ObamaCare is that they wish to avoid the damage to their authority that might come from a “partisan” ruling à la Bush v. Gore. (This assumes, correctly in our view, that a ruling against ObamaCare will be 5-4, with all Democratic appointees in dissent.)

But if the court is looking to protect its authority among the general public as opposed to within the liberal elite, it would make sense to strike down a law that has always been unpopular. (As legal scholar Daniel Conkle notes, the court has one other alternative: to decide that the Anti-Injunction Act of 1793 renders the constitutional question not yet ripe for litigation.)

There is an assumption among the conservative elite that the court, and in particular Justice Anthony Kennedy, is especially attuned to liberal elite sensitivities. Dahlia Lithwick, Slate’s younger, edgier version of Linda Greenhouse, explained and disputed it back in 2005:

“The Greenhouse Effect” is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times.The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia. Robert Bork recently told the New York Times, “It’s hard to pick the right people in the sense of those who won’t change, because there aren’t that many of them. . . . So you tend to get people who are wishy-washy, or who are unknown, and those people tend to drift to the left in response to elite opinion.” Similarly, Max Boot argues that Anthony Kennedy “is no Warren or Brennan, to be sure, but whenever he has a chance to show the cognoscenti that he’s a sensitive guy–not like that meany Scalia–Justice Kennedy will grab at it.”

The problem with this theory is that it accepts a great conservative fiction: that there is vast, hegemonic liberal control over the media and academia. This may have been somewhat true once, but it’s patently untrue today.

At least with respect to the media, we agree with the thrust of that last sentence, though we’d reverse two of the words: This may have been patently true once, but it’s somewhat untrue today. Still, it is manifestly true that the liberal intelligentsia does not have as much power as it used to.

To judge by Linda Greenhouse’s inane post–in which, as National Review’s Ed Whelan notes, she actually cites Nancy Pelosi as an authority on constitutional law!—it doesn’t have much intellectual power either.

And since we’re on the subject of willful ignorance, it’s the subject of Conn Carroll’s latest installment of the Morning Examiner:

Who’s Ignorant About Energy?

 

If the tone of the rhetoric coming from the White House is a reflection of how President Obama feels about House Budget Committee Chairman Paul Ryan’s new Path to Prosperity plan, then the Wisconsin Republican has scared Obama silly.

Yesterday, from a podium in front of the White House seal, Press Secretary Jay Carney said of the clean energy subsidy cuts in Ryan’s budget, “You have to be aggressively and deliberately ignorant of the world economy not to know and understand that clean energy technologies are going to play a huge role in the 21st century. You have to have severely diminished capacity to understand what drives economic growth in industrialized countries in this century.”

Which is an interesting statement considering an anecdote liberal author Noam Scheiber revealed in his new book The Escape Artists: How Obama’s Team Fumbled the Recovery:

Energy was a particular obsession of [Obama]’s, and therefore a particular source of frustration. Week after week, [economic adviser Christina] Romer would march in with an estimate of the jobs all the investments in clean energy would produce; week after week, Obama would send her back to check the numbers. “I don’t get it,” he’d say. “We make these large-scale investments in infrastructure. What do you mean, there are no jobs?” But the numbers rarely budged.

No, Obama doesn’t “get it.” And apparently neither does Jay Carney. Government subsidies do not drive economic growth. Just the opposite, they distort and slow growth. Investors know that if the only reason a business is profitable is because of artificial government subsidies, then the profit signal from that business is fake and should be ignored.

Economic growth occurs when entrepreneurs are allowed to discover new ways of producing goods and services that people need or want to buy. Those that identify new methods of delivering value to consumers that is greater than the cost of producing it, earn profits. Government policies that least interfere with this method of discovery are most likely to produce faster economic growth.

This is what Ryan understands and it is what his budget delivers: a simpler tax code, fewer disruptive regulations, and far less government spending in the health and energy sectors. Ryan’s budget passed the House Budget Committee last night and is expected to pass the full House next week. Meanwhile, the Democratic Senate has not passed a budget in three years.

Meanwhile, back at the ranch with The Gang That Still Can’t Shoot Straight, Bill McGurn, writing at Ricochet.com, offers his insight into Mitt Romney’s latest self-inflicted foot wound:

Etch-a-Sketch

If Mitt’s continuing refusal to disavow Romneycare is any indication, it will be deja vu all over again.

Next up, the WSJ quotes Walter Williams on the failure of liberal politics to help impoverished, urban black Americans:

….It’s not unreasonable to ask how valuable the variously labeled liberal, Democratic or progressive agenda has been to black Americans and whether blacks should proceed in political lock step with this agenda.

According to an American Community Survey, by the U.S. Census Bureau, the top 10 poorest cities with populations more than 250,000 are Detroit, with 33 percent of its residents below the poverty line; Buffalo, N.Y., 30 percent; Cincinnati, 28 percent; Cleveland, 27 percent; Miami, 27 percent; St. Louis, 27 percent; El Paso, Texas, 26 percent; Milwaukee, 26 percent; Philadelphia, 25 percent; and Newark, N.J., 24 percent.

The most common characteristic of these cities is that for decades, all of them have been run by Democratic and presumably liberal administrations. Some of them—such as Detroit, Buffalo, Newark and Philadelphia—haven’t elected a Republican mayor for more than a half-century. What’s more is that, in some cases for decades, the mayors of six of these high-poverty cities have been black Americans. . . . I’m not stating a causal relationship between poverty and Democratic and/or black political control over a city. What I am saying is that if one is strategizing on how to help poor people, he wants to leave off his list of objectives Democratic and black political control of cities.

On the Lighter Side….

And in the Psychology Section, there’s this from Best of the Web:

Spring Fling

 

Last November PhysOrg.com reported from the frontiers of science on a fascinating study by Emory University psychobiologists:

A lot of people who have gone to the zoo have become the targets of feces thrown by apes or monkeys, and left no doubt wondering about the so-called intellectual capacity of a beast that would resort to such foul play. Now however, researchers studying such behavior have come to the conclusion that throwing feces . . . is actually a sign of high ordered behavior.

Higher primate species can also fling their feces, as the New York Post reports:

Police are seeking at least two Occupy Wall Street demonstrators suspected of dumping buckets full of urine and feces outside JP Morgan Chase and inside an ATM vestibule. Jordan Brooks Amos, 25, of Philadelphia, was arrested on March 16 after he was caught on a surveillance camera dumping what police believe to be the protesters’ own waste, a source said. He is charged with unlawful possession of noxious matter, aggravated unlicensed operation of a motor vehicle and possession of a weapon–a stun gun found inside his car.

In the tape, Amos and at least two accomplices are seen carrying a large bucket full of urine and feces and disposing of it down a staircase near the corner of Nassau and Cedar streets, just outside JP Morgan Chase.

About 20 minutes later, one of the men walks into a Chase bank vestibule at 155 Water St. and dumps the waste right by an ATM machine.

So maybe we were too hard on the “Occupy” guys when we suggested yesterday that they are stupid.

Not stupid….just ig’nant!

Speaking of ig’nant….

Woman faces felony charges after bragging on the radio how she faked PTSD to avoid jury duty

 

A Colorado woman was charged with two felonies after allegedly calling into a local radio station and bragging about how she posed as mentally unstable to get excused from jury duty, KDVR reports. An arrest warrant was issued for Susan Cole after she reportedly called Denver’s “Dave Logan Show” and described how she dressed and acted oddly for jury duty in the hopes she would appear to have mental problems.

“I put black eyebrows on, red lipstick on, left my hair in curlers and wore a tee shirt that read ‘Ask Me About My Best Seller,’ ” Cole allegedly told the station, calling herself “Char from Denver.” “I put my lipstick on like someone who really didn’t know how to put lipstick on.” During the jury selection, Cole allegedly told prosecutors she had post-traumatic stress disorder from being in the military, was the victim of domestic violence and had been homeless. The judge dismissed her immediately from the case.

“For about two weeks after when my roommate and I would think about it, or I would tell my clients about it, we would cry we would laugh so hard,” Cole reportedly told the show.

Unfortunately for Cole, one listener didn’t find the stunt as hilarious as she did; the judge she’d conned:

As we’ve often observed, ’tis better to silent and thought a fool than to open one’s mouth and remove all doubt!

Enjoy the weekend.

Magoo