Monthly Archives: April 2012

The Nutmeg State’s Senate Passes Bill Protecting Right to Record Police AND Abolishes the Death Penalty in the Same Week

This week, the State of Connecticut made progress in the right direction on the criminal justice front on two issues I care deeply about: the right of individuals to record the police in public and abolishing the death penalty.

Earlier today, the Connecticut Senate passed a bill 42-11 that would hold the police liable for arresting individuals who record their activities in public. Carlos Miller writing for Pixiq writes:

The Connecticut state senate approved a bill Thursday that would allow citizens to sue police officers who arrest them for recording in public, apparently the first of its kind in the nation.

As it is now, cops act with reckless immunity knowing the worst that can happen is their municipalties [sic] (read: taxpayers) would be responsible for shelling out lawsuits.

Senate Bill 245, which was introduced by Democratic Senator Eric Coleman and approved by a co-partisan margin of 42-11, must now go before the House.
The bill, which would go into effect on October 1, 2012, states the following:

This bill makes peace officers potentially liable for damages for interfering with a person taking a photograph, digital still, or video image of either the officer or a colleague performing his or her job duties. Under the bill, officers cannot be found liable if they reasonably believed that the interference was necessary to (1) lawfully enforce a criminal law or municipal ordinance; (2) protect public safety; (3) preserve the integrity of a crime scene or criminal investigation; (4) safeguard the privacy of a crime victim or other person; or (5) enforce Judicial Branch rules and policies that limit taking photographs, videotaping, or otherwise recording images in branch facilities.

Officers found liable of this offense are entitled, under existing law, to indemnification (repayment) from their state or municipal employer if they were acting within their scope of authority and the conduct was not willful, wanton, or reckless.

While I think the fourth and fifth exceptions to the law could be problematic, this should go a long way toward holding the police accountable.

As if this wasn’t enough good news, just yesterday Gov. Dannel Malloy signed a bill to abolish the death penalty in the Nutmeg state. CNN reports:

(CNN) — Connecticut Gov. Dannel Malloy signed a bill into law Wednesday that abolishes the death penalty, making his state the 17th in the nation to abandon capital punishment and the fifth in five years to usher in a repeal.

The law is effective immediately, though prospective in nature, meaning that it would not apply to those already sentenced to death. It replaces the death penalty with life in prison without the possibility of release as the state’s highest form of punishment.

“Although it is an historic moment — Connecticut joins 16 other states and the rest of the industrialized world by taking this action — it is a moment for sober reflection, not celebration,” Malloy said in a statement.

Connecticut isn’t a state that comes to my mind when I think of a death penalty state and for a good reason: only 2 people have been executed in that state in the last 52 years (both of which wanted to be executed), according to the governor. So, if the administration of the death penalty is so infrequent, why does this abolishing of the death penalty even matter? I think Gov. Malloy said it quite well in his signing statement: “Instead, the people of this state pay for appeal after appeal, and then watch time and again as defendants are marched in front of the cameras, giving them a platform of public attention they don’t deserve.”

Keep up the good work Connecticut!

Hat Tip: The Agitator

Open Thread: If I Wanted America to Fail…

FreeMarketAmerica.org has released a great video (above) called “If I Wanted America to Fail.” It’s a pretty decent list of policies one would want to implement to cause America to fail but it’s far from complete.

Here are a few suggestions of my own:

If I wanted America to fail, I would want congress to abdicate its war powers and give those powers to the president so he could commit acts of war against any country he desires for any or no reason at all.

If I wanted America to fail, I would want these undeclared wars to be open-ended with no discernable war aim. This would lead to blowback and create more enemies for America.

If I wanted America to fail, I would have troops deployed around the world to make sure the world is “safe for democracy” but would topple regimes, even those elected by the people of these countries, if the president found the new leaders not to his liking. This would create even more enemies who would try to cause America to fail.

If I wanted America to fail, I would do away with due process – even for American citizens who the president considers “enemy combatants.” I would want the president to have the ability to detain these people indefinitely, ship them to a foreign country, and even give the president the authority to kill these people anywhere in the world they are found.

If I wanted America to fail, I would have the ATF sell arms to Mexican drug cartels so they could kill innocent people on both sides of the border. I would name this operation after a lame action movie franchise and pretend to know nothing about it when details were made public (It’s not like the media would have any interest in investigating this deadly policy because this is a Democrat administration).

Now it’s your turn. What are the policies being implemented now that you would want implemented if your goal was to make America fail?

Quote Of The Day

The AP, lamenting the fact that so many new college grads are having trouble finding work:

College graduates who majored in zoology, anthropology, philosophy, art history and humanities were among the least likely to find jobs appropriate to their education level

Actually, like the guy interviewed with a “creative writing” degree who now works as a barista, I think these folks are finding exactly the sort of jobs appropriate to their education level.

Frontline Investigates the State of Forensic Science in “The Real CSI”

Is the forensic science used in the courtroom reliable? The PBS documentary series Frontline makes an attempt at answering this question in an episode entitled: “The Real CSI.”

I cannot recommend this episode enough.

Watch The Real CSI on PBS. See more from FRONTLINE.

Also, the producers of this episode hosted a live chat for viewers to ask some follow-up questions (I’m sorry I missed it). Here is the archive from the chat.

Related Posts
Popular Mechanics Separates CSI Fact from CSI Fiction
Dr Michael West Filmed Committing Attempted Murder
An Innocent Man Was Probably Executed on Gov. Rick Perry’s Watch…Not That Anyone Cares
200 Innocent and Counting
25 More Reasons for Criminal Justice Reform

Quote Of The Day

From M.S. @ The Economist’s Democracy In America blog:

To say that most American political discourse takes place at the intellectual level of baboons would be an insult to baboons. Baboons are capable of handling two-factor reasoning problems: if I eat all the bananas now, I’ll have none left for later; better eat enough to quell my hunger now, but leave some for later. In contrast, political discourse generally takes place at the one-factor level that could be handled by, say, flatworms: Banana yummy! Hunger bad!

And politics takes place at the same level: Spend now! What consequences?!

Milton Friedman on Libertarianism and Humility

On August 14, 1990, Milton Friedman gave a speech at the International Society for Individual Liberty’s 5th World Libertarian Conference on the subject of libertarianism and humility. There are many adjectives which can be ascribed to libertarians but “humble” usually isn’t one of them. Among the quotable parts of the speech, Friedman said the following:

On the one hand, I regard the basic human value that underlies my own beliefs as tolerance based on humility. I have no right to coerce someone else because I cannot be sure that I am right and he is wrong. On the other hand, some of our heros…people who have, in fact, done the most to promote libertarian ideas, who have been enormously influential, have been highly intolerant as human beings and have justified their views, with which I largely agree, in ways that I regard as promoting intolerance.

In searching for the above transcription of what I thought was very profound and wise, I found a couple of bloggers who thought this particular quotation as “an inadequate defense of liberty” or one of the “failures” of Milton Friedman.

I happen to disagree with these notions.

Maybe because I have been humbled in realizing that I had been wrong on some issues of great importance. By far the most difficult (yet ultimately liberating) post I have ever written was the post in which I declared that I was wrong about my support for the war in Iraq. I was so certain that regime change in Iraq would bring about peace in the Middle East and freedom would take hold. I thought the Ron Paul and big “L” Libertarian position on preemptive war was naïve and dangerous but now I believe the opposite to be true (for reasons I stated in the aforementioned post).

Having experiencing this, I can’t help but think that Friedman was right to say that each of us should be open to the possibility we may be wrong. If we aren’t open to this possibility, what is the point of debating an issue? Obviously, if I argue that X is correct and my opponent says Y is correct, I’m going to do my best to convince my opponent that I am right and s/he is wrong (meanwhile, my opponent is doing the same).

But what if I realize in the course of the debate that my opponent is at least partially right about Y being correct and/or that my reasoning is flawed or the facts do not support X? As a normal human being, I might not concede right away but if I am being intellectually honest, I’ll revise my thinking based on new information or new reasoning I hadn’t considered.

If Milton Friedman was willing to be open to the possibility of being wrong, how could I, someone whose mind will never in the same league as his, be so stubborn?

One thing I notice in watching Friedman debate people who are diametrically opposed to his positions was how patient he was with them. Something that many of us libertarians seem to forget is that much of what we believe to be true is counterintuitive to at least half of the people we encounter on a daily basis because many of these people have not been exposed to our philosophy. Friedman understood this. He knew that much of what he was saying was new territory for many who would hear his lectures or read his books.

Before he could make the case about any of his ideas to others, he had to be satisfied that the facts backed up his theory. These two sentences from the NPR obituary for Friedman summed up his approach beautifully:

Friedman was an empiricist, whose theories emerged from his study of the evidence, not the other way around. He also was a champion of the free market and small government.

We are supposed to believe this to be a weakness? I find this to be so refreshing!

Quote Of The Day

From Steven Greenhut, writing at Reason:

Americans suffer under the delusion that transportation systems are just that—systems for transporting people from one destination to another. What most of us fail to recognize is that the politicians, activists and planners who play the greatest role in creating those systems have far different goals than improving the way we move from Point A to Point B.

To today’s transportation movers and shakers, such systems are giant jobs-creation programs designed to boost the economy and provide high wages to members of influential unions; and the key means by which to remake society in a way that is nicer to the environment and leads to a changed citizenry that is less likely to use automobiles to get around. Think of transportation these days less as civil engineering and more as social engineering.

It sounds like a grand thesis statement, because it is. He goes on in the rest of his article to expand and justify it. But these two paragraphs crystallize why the supporters and opponents of HSR are so exasperatingly talking right past each other.

On Judge Jerry Smith’s “Homework Assignment” And Judicial Deference To The Legislature

Last Tuesday, a federal judge in the 5th Circuit, Jerry Smith, blasted a DOJ lawyer on an ObamaCare case in the wake of Obama’s comments on judicial activism. The Judge assigned the lawyer a three-page, single spaced homework assignment to draft a position on whether the judiciary has the legitimate right to overturn Unconstitutional legislation.

Everyone was up in arms over this, and to be honest, I frankly think it was pointless, in bad taste, and didn’t do anything but spin up a news cycle for about 24 hours. After reading a particular Popehat piece, I’m not all that surprised, but I’m certainly a bit dismayed that Jerry Smith decided that this was a necessary act.

Well, the homework assignment is here for all to see:

DOJ Letter to 5th Circuit re Judicial Authority

There’s a section in here that is particularly interesting. One aspect of this is an “F-U” to the judge, but points to something that I think is a bit unnecessary in Constitutional jurisprudence:

While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. See, e.g. , Nature’s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Brown Group, 1995 WL 938594, at *6.

The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nullify more of a legislature’s work than is necessary” because they recognize that’” [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people’”(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc., 512 U.S. at 665-66. The “Court accords ‘ great The “Court accords ‘ great weight to the decisions of Congress”‘ in part because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J.)

So the Supreme Court should grant a great deal of deference to Congress, because Congress cares deeply about their Constitutional obligation!

Paging the folks over at Volokh:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest […] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

So some don’t care, and some just assume the authority exists but can’t cite it, and some make up new sections of text in the Constitution that don’t even exist. Deferring to Congress on whether or not legislation is Constitutional is like deferring to Philip Morris on whether cigarettes are good for your health.

Quote Of The Day

Arnold Kling, on the “gotcha” mentality of partisanism:

If your goal is to accumulate a fan base and fire them up, then of course calling intellectual fouls on the other side is the way to go. However, I claim that if your goal is to contribute to a discussion in which fair-minded people will consider changing their minds, then calling the other side’s intellectual fouls does not get you very far.

It’s easy, and sometimes feels good too, to blast your opponents when they do something particularly egregious. But it doesn’t accomplish much.

Wayne Allyn Root: Once Again, A Phony Libertarian

You may remember Wayne Allyn Root as the sports betting “expert” cum political commentator who ended up being Bob Barr’s running mate on the 2008 Libertarian Party Presidential ticket. In 2010 he was elected to a position on the Libertarian National Committee and, while many had figured he’d be running for the Presidential nomination this year, he doesn’t appear to be doing so.

Perhaps that’s because he’s decided that Libertarians need to vote for Mitt Romney.

Yes, you heard that right, a member of the Libertarian Party’s governing body said on the Cinncinnati-based Bill Cunningham show [Podcast here] that he’s supporting Mitt Romney and so should other libertarians:

I think the important thing now is to make sure Obama is not elected,and that means in my mind, I would love for a libertarian like Gary Johnson the two term governor of New Mexico would actually get elected President, but I think we all know that’s not going to happen so therefore it’s got to be Romney there is no choice.

Root purported to defend himself in a comment thread at the Independent Political Report:

I said in a perfect world I’d like to see Gary Johnson elected President, he’d be the best choice out there…I also said several times on the call that Mitt Romney is a big spending, big government Northeast liberal…that he will make very little difference because of this…

And that the difference between Obama and Romney…

Is that Romney will slow down our path off a cliff just a bit…and Obama will take us off the cliff in a matter of minutes.

But neither is good enough to save USA from long decline towards mediocrity.

And that Romney’s victory will most probably prove that neither party can change our problems enough to save the economy…so hopefully it will lead to a serious Libertarian third party threat in 2016…of which I plan to be the Presidential candidate.

That’s what I said. It’s on tape. Sorry folks but you can’t take things out of context.

Nobody’s taking anything out of context Wayne. In fact, I think your comment at IPR makes it fully clear what this is really all about. Since you can’t be the LP nominee  in 2012 you apparently have no problem with throwing the guy who most likely will be the nominee under the bus, clinging on to the theory that you’re going to somehow be the nominee in 2016. What happened to that promise in your book that you were going to be the LP nominee in 2012, 2016, and then win the White House in 2020?

Root has every right to his opinion, of course, what he doesn’t have the right to do is trash the party he’s purporting to represent for his own personal interests. If he wants to endorse and vote for Mitt Romney in 2012, that’s his choice. I think it’s a stupid one, but people have the right to make stupid choices. What I don’t understand is how he can continue holding a position of supposed responsibility in the Libertarian Party while endorsing a Republican instead of his own party’s nominee, and I’m not even a member of the LP. The point isn’t that Root doesn’t have a right to endorse Romney, but that it’s an insult to the party he claims to represent that he does so while sitting on the party’s National Committee.

Of course, I was telling people Root was a phony two years ago, and when he almost participated in a birther “trial” of Barack Obama, and then again when he took the side of religious bigots in the controversy over the so-called Ground Zero Mosque.

Nobody should be surprised his latest antics, really.

Quote of the Day: In Response to Van Jones’ Remarks About “so-called libertarians”

Over at Reason, Mike Riggs responded to President Obama’s former Green Jobs czar Van Jones’ tirade about “so-called libertarians” at an Occupy rally in L.A. In case you missed it, Van Jones said that libertarians “say they love America but they hate the people, the brown folk, the gays, the lesbians, the people with piercings.” Clearly, he has never been to a Libertarian Party convention; I have. These people are more welcome in the LP than either of the big two political parties, I assure you.

Riggs responds:

I’m going to have to mic check you there, Mr. Jones. You’re not talking about so-called libertarians, but your former boss and current president. See, it’s Barack Obama who supports “traditional marriage”; Barack Obama who supports a drug war that sends an alarming number of black men to prison and destroys their employment prospects; Barack Obama who supports a foreign policy that kills children; Barack Obama who supports regulatory barriers that require the poorest of the poor to borrow their way into the workforce; Barack Obama who supports an immigration strategy that rips apart families and sees the children of undocumented workers put up for adoption.

Whether Obama’s support for those policies means he hates gays or brown folk is not for me to say. As the scriptures tell us, “For who has known the mind of the Lord that he may instruct him?”

Libertarians, on the other hand, love brown folk, the gays, the lesbians, the people with piercings, and immigrants. Many of us, after all, fit rather neatly into those categories, and we show our affection for ourselves and our neighbors by supporting the right of all peoples to live free of state-sponsored violence, discrimination, undue imprisonment, and theft; as well as the entirely predictable consequences of both left-wing and right-wing social engineering.

In fairness to Van Jones, there are a fair number of social conservatives,* NeoCons, and yes, certain unwelcome elements who do advocate these things who try to call themselves libertarians, but damn man. Would it be too much trouble for Jones to go on the series of tubes that is the interweb and do a search on the Libertarian Party Platform before shooting off his mouth about “so-called libertarians”? If so, he would find that true libertarians are the polar opposite of what he described.

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How far we have fallen…

Reading the point/counterpoint posts on the question of how the supreme court would decide on Obamacares constitutionality, was quite disturbing to me in several ways.

On the one hand I was heartened, because clearly both Brad and Doug are sane and rational folks with a reasonably solid background in both law and politics, and a foundational understanding of the constitution…

Of course, that only highlights how many people in this country are not.

Any reading of the constitution… of the very intent of the founding of this nation… makes it clear that our federal government is meant to be one of of limited and enumerated powers. If the government can mandate this, they can mandate anything. This is the fundamental argument about the necessity for a limiting principle to any government act.

And anyone who doesn’t want unlimited, unconstrained government can see that. Sadly, it seems that the idea of unlimited, unconstrained government is quite popular in some quarters… even with some supreme court justices.

The basic liberal/progressive/leftist argument for socialized medicine is “we should do this even if it IS illegal and unconstitutional, because it’s the right thing to do so the supreme court should uphold it”.

I.E. “It’s good because we want it, and therefore it should be legal because it is good; and we need to get rid of this whole “limited government” thing, because it gets in the way of us doing what is right and good.”

What I also find heartening is that both Brad and Doug both seem to have a good sense of all of this…

But that is also disturbing…

Because both of them seem to share the same actual opinion:

Both believe that Obamacare is ACTUALLY unconstitutional, and should be struck down…

…It’s just that Brad is cynical enough about the supreme court and the political aspects of the decision that he thinks enough justices will be able to argue themselves into ignoring the constitution and doing what they want to do, rather than what is right.

… and Doug believes that there’s a good possibility of that as well; he just has a bit more hope that they won’t.

… and if you look around the commentariat, that’s pretty much the split of positions that every other knowledgable observer has as well.

And if that isn’t disturbing to you, then you really have no idea what is going on, do you?

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Counterpoint: The Supreme Court Will Find The Individual Mandate Unconstitutional

Earlier this week, Brad Warbiany started out the latest in our occasional series of Point-Counterpoint exchanges by arguing that the Supreme Court will ultimately uphold the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate. I’ll start off by saying that this is not an all implausible. Indeed, I’ve argued myself in the past that the odds were quite good that the Supreme Court would uphold the constitutionality of the mandate. Moreover, as Brad notes, the history of the Supreme Court’s Commerce Clause jurisprudence has been one where the Court has essentially been nearly completely deferential to Congressional exercises of authority in this area. If one were making a bet, the safe bet would be the one that says the mandate would be upheld. Nonetheless, as I argue below I believe that the Supreme Court will in the end strike down the mandate, although the fate of the rest of the PPACA remains far from certain.

The Mandate Forces Citizens To Act In A Manner Never Before Seen In American History

Brad argues against the assertion that the mandate is unique in American history because it forces citizens to purchase a product from a private seller by pointing to examples of other things that the government forces people to do, such as the military draft and jury service. It’s correct that these programs are, at least theoretically, authorized by various provisions of Article I, Section 8. However, that’s very different from what the mandate purports to set in place, which is a requirement that every person in the United States engage in a specific commercial transaction whether they choose to or not. As more than one legal commentator has noted, this is unprecedented in American history and likely one of the main reasons that the PPACA itself has aroused the ire of such a large segment of the American public. As a general rule, Americans don’t like being told what to do by the government and, for many people, this was a bridge too far.

The question is whether it is authorized under the Constitution, and I think the case in favor of it is far stronger than the supporters of the law have been willing to admit up until last week’s hearings.

The Commerce Clause

As I noted above, the Supreme Court has, at least since the New Deal Era, been very deferential to Congressional assertions of authority under the Commerce Clause. This started, as Brad notes, with the case of Wickard v. Filburn in which the Court upheld a provision of the Agricultural Adjustment Act that allowed Federal authorities to bar a farmer from growing “excess” wheat even though he would not be selling it and would solely be using it for personal use on his farm. The Court reasoned that this was acceptable because the farmer’s actions had an impact on Interstate Commerce, even though it might only be a small one. It’s a decision that has always aroused the ire of advocates of limited government and it’s implications are wide ranging. Thanks to Wickard, the Court spent some 50 years rubber stamping Federal assertions of authority under the Commerce Clause. Indeed, after the New Deal Era there were very few challenges to such laws that even made it to the Supreme Court.

Then, in the late 90s things took a surprising change. In Morrison v. United States, the Court struck down several provisions of the Violence Against Women Act which purported to make domestic violence a matter for federal law enforcement under certain circumstances. The Court held that there was no evidence that domestic violence had any connection at all to interstate commerce that would justify giving the Feds police authority that is properly the authority of state governments. Several years later, in Lopez v. United States, the Court struck down the Gun Free School Zones Act on the ground that there was not a sufficient nexus with interstate commerce. Suddenly, it seemed, the Court was finding limits to the Commerce power. There seemed to be a setback when the Court upheld Federal drug charges against a California medical marijuana dealer in Gonalez v. Raich, but there’s a good argument to be made that this case is distinguishable based on the fact that it dealt with illegal drugs and that the Court was unwilling to issue a ruling that would have thrown every single Federal drug law into Constitutional doubt. Had Gonzalez dealt with any other commodity, it’s quite conceivable that it would have gone the other way.

It’s been said by PPACA advocates that striking down the mandate would require the Court to overrule 70 years of Commerce Clause precedent, but Morrison, Lopez and even Raich, show that this isn’t necessarily true. Each of the courts that have struck down the mandate have held that the problem with the mandate isn’t that the Courts have been wrong for the past three-quarters of a century about the Commerce Clause, but that even those precedents do not authorize what Congress wishes to do in this particular case. Indeed, it is perfectly easy to distinguish Wickard and its progeny from the PPACA mandate in a way that preserves precedent and yet compels the conclusion that the mandate is a Constitutional bridge too far.

This is what I expect the Supreme Court to do when it issues its opinion in June. Much to the relief of liberals and the chagrin of conservatives, striking down the individual mandate will not mean that the New Deal will be rolled back. What it will mean, though, is that, as in Lopez and Morrison, the Court will be drawing a line and saying that Congress cannot cross it because it does not have the Constitutional authority to do so. It will, in other words, further articulate a limiting principle for the Commerce Clause.

Which brings me to the next part of Brad’s argument I need to address.

Limiting Principles

Brad is correct that the Court could construct a limiting principle if it ends up saying that the mandate is Constitutional. Perhaps this is what it will end up doing. However, it is worth understanding the importance of the failure of the Government to articulate a limiting principle when asked for one by the Court. For one thing, this isn’t the first time that the Court has failed to do so. Reviewing the transcripts of oral argument in many of the lower court proceedings, one runs into other occasions when Judges inquired of the attorneys for the Government whether they believed that there was any limit on the Commerce Power given their arguments in favor of the mandate. In no case were the attorneys willing or able to do so. In some cases, this was cited by Judges as a reason that the mandate cannot be upheld, in others it wasn’t (athough it is worth noting that lower Court judges are bound by precedent from the Supreme Court in a manner that Supreme Court Justices are not).

As a purely tactical matter, it strikes me that an attorney who is unable to provide an answer when a Judge asks “If I rule in your favor, what guarantee is there that I won’t be establishing a precedent to do X” is potentially damaging their case. Most judges are not, by their nature, radicals.Meaning that if they can avoid issuing an opinion that could have far reaching consequences they are likely to do so. It was quite evident from the questioning during last week’s oral argument over the individual mandate that the Court, and specifically Justice Kennedy, has some concerns about the future implications of issuing an opinion upholding the mandate. The Solicitor General’s failure to provide an answer may end up being fatal to the Government’s case.

The Necessary And Proper Clause

This is perhaps the strongest argument that Brad raises. Under the broadest interpretation of the Supreme Court precedents on this case, anything that is necessary for Congress to carry out one of it’s authorized powers is Constitutional. Indeed, this is pretty much what the Supreme Court said when it authorized the creation of the First Bank Of  The United States in McCullough v. Maryland. For that reason alone, it’s interesting that there was so little discussion of the necessary and proper clause during the oral argument last week. Partly, this may be because the law here is pretty much settled and has been for nearly two centuries but one would have thought that Paul Clement, the attorney for the states would have been subjected to some strong questioning on this topic by the Justices on this issue. He really wasn’t, although there was some discussion about whether the health care market was “unique” in some way that made this mandate permissible.

The problem with this argument that it still leaves the Court searching for a limiting principle. If Congressional power under the Commerce Clause to regulate the interstate health care/health insurance market is so broad that it can enact a law that includes a requirement that all Americans purchase insurance, then does that mean that its power to regulate the interstate automobile market is so broad that it can enact a law requiring Americans to buy only American made cars? Even if the Court were to decide that the Necessary and Proper Clause was sufficient authorization for the mandate, it would still be left with the limiting principle question. And my reading of the Court at this time is that there is a majority right now that is unwilling to issue an opinion that would essentially be an open door to Congressional intrusion in even more aspects of the economy, and an end to any hope that there could be limits imposed on Washington, D.C.

Conclusion

I could end up being totally wrong about this, of course. This case is so closely dividing the Court that it’s impossible to guess how it will turn out. I will say that I think that if the mandate is struck down we are looking at a 5-4 decision because there is just no way that I can see Breyer, Ginsburg, Sotomayor, or Kagan going over to the side of the conservatives on this issue. However, if the mandate is upheld I would not be surprised to see it be a 6-3 decision for a very specific reason. Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

However, if the Court were to strike down the mandate, I believe I’ve laid out a perfectly rational, Constitutional basis on which they would do so. That doesn’t mean there won’t be a political firestorm, of course, but there is going to be a political firestorm no matter how the Court rules. I don’t think there’s ever been a time in American history when such an important case was in the hands of the Court in the same year as a Presidential election. Especially an election where the very issue the Court is dealing with, the limitations on the authority of the state contained in the Constitution, were also the central issue in the Presidential election. It’s going to be a very interesting opinion regardless of which way it comes down.

Point: How The Supreme Court Will Find The Individual Mandate Constitutional

This is part of The Liberty Papers’ continuing Point/Counterpoint series, where two contributors (or a contributor and a guest) argue competing sides of an issue. In this installment, I will argue that the Supreme Court has a realistic defensible argument to find the Individual Mandate in ObamaCare Constitutional. Tomorrow, Doug Mataconis will respond with a rebuttal. Links will be updated in each post as they appear.

UPDATE 4/4: Doug’s rebuttal is available here.

As always, we’re constantly looking for good debate topics for this series, and qualified guest posters to argue one side against one of the contributors.

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Stipulated up front — I believe that ObamaCare is a severe affront to individual rights, limited government, and the ideals upon which our Republic was founded. In my own view of Constitutional jurisprudence, overturning the law is a no brainer. But as with most things our government does, they’re not listening to me, so the question is simple:

Does the Supreme Court have enough precedent to find the individual mandate Constitutional?

I think they do. And the argument has several elements.

Forcing You To Act

One of the first points of contention is the question of regulating activity versus regulating inactivity. The question being whether or not the Congress can force you to act if you choose not to. Many claim that Congress forcing you to purchase a good from a private seller is a bridge farther than they’ve ever gone before.

But taking the question of “buying from a private seller” out of the equation, is anyone suggesting that the government can’t force you to do something under threat of fine or jail? Ever heard of the Selective Service? I’d say a government that can force me to report for military service to die for my country is asking something a fair bit more serious than demanding I have health insurance. The government in this case can COMPEL you to do something within its rightful power — the power to raise armies. Or on a subject less likely to result in ending up full of lead, there’s Federal jury service. The government can COMPEL you to do something within its rightful power — the power to raise courts and ensure defendants a fair trial judged by their peers.

The question isn’t whether or not the government can force you to do something — Republicans, Democrats, Presidents, and Supreme Court Justices have all agreed that it can. The question is whether or not forcing you to buy health insurance falls within the power of what they can force you to do.

The Commerce Clause

Most of the debate so far has centered around whether the mandate — a regulation of inactivity, not of activity, is within Congress’ commerce clause power. We’ve had cases like Wickard v. Filburn, where the Court has ruled that someones activity can be regulated whether or not it directly engages in interstate commerce, because the act of growing your own wheat [and not buying it from the market] may have an affect on interstate commerce. We’ve even had Gonzales v. Raich, where the Court has ruled that the grasp of Congress extends even to activities which affect an interstate market in goods the government would prefer have no market at all.

The Government’s lawyers in this case say that the mandate is Constitutional because not buying insurance may affect interstate commerce. The opposition states that Congress can regulate activity related to interstate commerce, but regulating inactivity is a bridge too far. Supporters of ObamaCare, however, do have a point here. It can hardly be argued that refusing to purchase health insurance means that you’re not impacting the US healthcare system. Unless you have an ironclad “do not treat” waiver stapled to your forehead at all times, I’m pretty certain that if you’re in a car wreck and unconscious, you’re going to become a participant in the healthcare market. And if you don’t have insurance, that’s likely to bankrupt you, cost the taxpayer a hefty sum, or both. In this case, your supposed inactivity really is activity.

But this isn’t the only argument. One of the key points that is not argued is whether or not the US Congress has the authority to regulate the US Healthcare market at all. And the reason that’s not being argued is that it’s flatly assumed that Congress can regulate the healthcare market. In fact, even most pro-liberty Constitutionalists agree that if Congress had simply voted for a single-payer system, current Supreme Court jurisprudence wouldn’t have any cause to overturn it. So this brings us to our next point:

The Necessary and Proper Clause

This is really the crux. The clause says that Congress has power to make all laws “necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” A long time ago, that limited the government significantly. In fact, in the fight over the First Bank of The United States, the Feds argued that the Bank was necessary to engage in all the things that the government legitimately and Constitutionally needed to do. The opponents argued that while the Bank may be convenient and helpful to the government to do what it needs to do, it was hardly necessary. They took a very strong view that the word “necessary” meant what it said — if you could accomplish the goal without doing X, then X didn’t meet the Constitutional requirement of necessity.

Sadly, the Necessary & Proper clause was one of the first to get ignored by the Supreme Court, as Randy Barnett (a lawyer opposing ObamaCare in this case) pointed out in his book Restoring the Lost Constitution. One of the key growths in Government power over the early days of the Republic was to grant deference to Government lawyers if they said something was necessary.

In this case, much of the oral arguments centered around whether ObamaCare could stand without the individual mandate. Both sides agreed that Congress has the power to regulate healthcare, but they didn’t agree that the individual mandate was, on its own, Constitutional. After all, if they can mandate you purchase insurance, which might help restrain the growth of healthcare costs, might they not also mandate you purchase broccoli, as the health effects thereof might help restrain the growth of healthcare costs?

Many ObamaCare opponents cheered at the lines of questioning whether ruling the mandate Unconstitutional would cause the entire law to fall. Those opponents believed that it was a way for the Court’s conservative wing to ensure that they could toss out the whole law, rather than simply severing the mandate. But looking at the argument another way, it proves that the mandate is necessary to the law.

So let’s look at the “necessary and proper” test. First is propriety — laws made by Congress are only proper if they relate to one of its Constitutional powers. While I might not think Congress has legitimate authority to make sweeping healthcare legislation, I think we’ve well established that current Court jurisprudence is untroubled by the idea that Congress has commerce clause power to regulate healthcare. So the test of propriety is cleared. The second is necessity: is the mandate necessary to fulfill Congress’ authority to regulate the interstate commerce of healthcare. And I think the oral arguments proved, regardless of what side you’re on in this debate, that the mandate is absolutely necessary to the structure of the law. Get rid of the mandate, and you might as well throw the whole thing out.

So if regulating the healthcare market is a legitimate authority of Congress, within their purview granted by the commerce clause, then the question becomes whether this mandate is necessary for them to exercise their authority. I think the answer, as shown by oral argument, is yes. So the government clears the bars of both the Commerce Clause and the Necessary and Proper clause.

Limiting Principles

A final argument by the opponents has been that if the mandate stands, it grants Congress ultimate power, which the Court will not allow to happen. And they’ve been encouraged by some lines of questioning in oral argument, where the “broccoli test” showed that the Government’s lawyers were unable to articulate a limiting principle of their argument.

But as loath as I am to agree with Kevin Drum on something (or whoever he borrowed the argument from), the Government doesn’t need to articulate a limiting principle. It’s up to the Court to determine whether THIS action is Constitutional. And they could very easily craft a limiting principle that allows the individual insurance mandate but doesn’t allow for an individual broccoli mandate.

How simple is it?

Q. Is the individual insurance mandate absolutely necessary to the very structure of Obamacare?
A. Yes.
Q. Is the hypothetical broccoli mandate absolutely necessary to the very structure of Obamacare?
A. No. Are you f’ing serious?

The Court already has the “necessary & proper” clause as its limiting principle. If they accept the basic structure of ObamaCare as Constitutional, extending to Congress a provision that might be Unconstitutional on its own, but necessary as part of a wider power, would not be a shock.

Conclusion

I’m not going to claim that the above argument suggests that the Court will find ObamaCare Constitutional. I’m a firm believer in the idea that the Justices often decide — like people in all other walks of life — what they want to do and rationalize an argument into it afterwards. And I think we have a pretty decent idea how 8 of the 9 Justices will decide in this case, a 4-4 tie broken by Anthony Kennedy.

Should Kennedy vote to overturn the mandate, I expect the majority opinion to fall to one of the solid conservative justices. Should Kennedy vote to uphold, he very well might pen the majority opinion. For Kennedy to accept the mandate, I think he has to see a legitimate limiting principle — and the necessary & proper clause provides both the grounds for upholding the mandate and the inklings of a limiting principle in one fell swoop. Oh, and in case you followed the oral arguments, Kennedy was *very* interested in the concept of severability and seemed to assume, whether he votes to keep it or toss it, that the mandate was necessary to the structure.

I don’t know which way this thing’s gonna go, but I’m not as confident as other libertarians, conservatives, and small-government Constitutionalists. I see a very plausible rationale for upholding it, and thus I think we’re hoping that one oft-flighty Justice happens to come down on our side of the vote.

Arlen Specter’s Conduct Reminds Talk Radio Listeners Why He Got Booted From Office

Sen. Arlen Specter was last Friday’s guest for The Jason Lewis Show to promote his new book. The interview started casually enough, discussing topics such as the Trayvon Martin case and various policies Sen. Specter supported while in the senate. Sen. Specter’s main complaint in his book, as he explained in the interview, was that there’s no room for moderates in either party and that “compromise” has become a dirty word among the base of both parties (Sen. Specter has no love for the Tea Party which played no small role in getting him swept out of office).

After the first commercial break, Sen. Specter complained that he didn’t want his dinner interrupted to do the interview to listen to several minutes of commercials if he wasn’t going to have a chance to promote his new book. Lewis basically brushed the criticism aside and politely debated the senator on principled differences between moderates and Tea Party conservatives. As Lewis challenged the senator on various issues, Sen. Specter seemed to become agitated by his tone.

Then the next commercial break came, then all hell broke loose.

“Jason [Lewis], I have one final comment,” Specter said.

“I gave you 10 minutes. You’ve been over every subject except for my book. I’ve listened to two rounds of your commercials. I think it’s insulting. I’ve been in a lot of interviews in the course of the past 30 years and you are absolutely insulting!”

Specter continued, “This is no way to run an interview!”

“Listen, I’m talking about somebody who’s civilized!” said Specter.

“I told you the last time around I wasn’t looking to sit around and listen to your commercials, and I didn’t want to hang up on you. But I want to tell you this is no way for anybody to run an interview. I’m as experienced as you are, if not more so. And that’s all I have to tell you, so goodbye!”

Baffled by Specter’s tirade, Lewis said, “Good lord, senator — no wonder you got beat.”

“This is the most intolerant guest I’ve ever had on the program. How on earth do you — Does he only do NPR interviews? Is that the deal? I’ve never heard anything like it. Well, good luck with the book. I think you’re going to need it.”

For those of you who are not familiar with Jason Lewis, he’s not one of these talk radio hosts who scream at callers* or guests who disagrees with him. As political pundits go, Lewis is probably fairest person I’ve listened to; certainly among the most “civilized.” Sen. Specter’s problem was that he was being challenged rather than swooned over, IMO.

And while I do find the commercials annoying** I understand that they are necessary. Talk hosts have little to no control over when the commercial breaks occur because the radio station’s contracts with the advertisers have to be honored.

Sen. Specter doesn’t understand this, but why would he? He spent most of his adult life in government.
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