Category Archives: Supreme Court

SCOTUS Has Accepted Appeal of Case That Could Topple Obamacare

SCOTUS

On Friday, United States Supreme Court agreed to hear the appeal in King v. Burwell. The plaintiffs in that case assert that the Patient Protection and Affordable Care Act only allows tax credits to people who buy insurance “from an exchange established by a state.” The Fourth Circuit Court of Appeal disagreed and ruled that the federal government may interpret that language as allowing tax credits to purchasers who bought insurance on one of the federal exchanges, operating in the more than 30 states that declined to create their own.

On the same day the Fourth Circuit delivered its decision in King, a panel in the D.C. Circuit found for the plaintiffs in a companion case captioned Halbig v. Burwell. This conflict would ordinarily invite SCOTUS to weigh in. However, the D.C. Circuit then accepted a rehearing en banc in Halbig. Thus, even though the King plaintiffs appealed, many observers speculated SCOTUS would wait to see if a conflict really developed, or if after rehearing in Halbig, the courts ended up aligned.

As a result, it is somewhat surprising that SCOTUS accepted the King appeal, and it may signal bad news for the Affordable Care Act. As Nicholas Bagley writing a SCOTUSblog explains:

[F]our justices apparently think—or at least are inclined to think—that King was wrongly decided. … [T]here’s no other reason to take King. The challengers urged the Court to intervene now in order to resolve “uncertainty” about the availability of federal tax credits. In the absence of a split, however, the only source of uncertainty is how the Supreme Court might eventually rule. After all, if it was clear that the Court would affirm in King, there would have been no need to intervene now. The Court could have stood pat, confident that it could correct any errant decisions that might someday arise.

There’s uncertainty only if you think the Supreme Court might invalidate the IRS rule. That’s why the justices’ votes on whether to grant the case are decent proxies for how they’ll decide the case. The justices who agree with King wouldn’t vote to grant. They would instead want to signal to their colleagues that, in their view, the IRS rule ought to be upheld. The justices who disagree with King would want to signal the opposite.

And there are at least four such justices. If those four adhere to their views—and their views are tentative at this stage, but by no means ill-informed—the challengers just need one more vote to win. In all likelihood, that means that either Chief Justice Roberts or Justice Kennedy will again hold the key vote.

If I read this correctly, the speculation is that four (or more) SCOTUS justices agreed to accept the case in order to send a signal to the lower courts still considering challenges to this provision of the ACA. The signal they wanted to send is that those other courts should not necessarily follow King, because SCOTUS might think it was wrongly decided.

A reversal of King (i.e., a finding in the plaintiff challengers’ favor) would seriously undermine—perhaps fatally—the structure of the Affordable Care Act. Fully 87% of the people who purchased policies through the federal exchanges during the first open enrollment period are receiving subsidies. If the government cannot give subsidies to low-income purchasers, it cannot tax them for failing to have the insurance, and the entire system collapses under its own weight. Fewer people can afford the insurance, the risk pool shrinks, costs rise, and more people are forced to opt out.

If on the other hand, SCOTUS upholds tax credits not authorized by Congress, it would be one more in a long line of revisions, waivers, exemptions, delays and modifications made to the law made by the very administration that purports to uphold it.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.
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Hobby Lobby

Now, before you all lose your collective shit, I want to remind everyone of one critical fact:

The Supreme Court doesn’t exist to make the morally right decision.

I’m going to repeat that, blockquote it, and bold the damn thing because it’s that important.

The Supreme Court doesn’t exist to make the morally right decision.

Now, I know that this may come as a shock to most of America. But then, Americans have never exactly had a good grasp of civics. In fact, some of the worst law comes from the Supreme Court trying to work a moral decision into the law. When you already know the outcome you want, and you start looking for any legal justification you can muster for that outcome, you’re bound to stretch in the wrong places.

No, the Supreme Court exists to make the legally right decision. And no matter your view on Obamacare, the mandate, religious liberty, and contraception, I think the Court in this case made an entirely justifiable decision that is consistent with the law.

Let’s break it down.

  1. Congress has declared in the ACA a compelling government interest in ensuring that women have insurance coverage for contraception.
  2. They have created a national health insurance mandate forcing employers (of a certain size, etc etc) to cover the cost of said contraception.
  3. In 1993, Congress passed the Religious Freedom Restoration Act, which requires that laws which violate someone’s religious beliefs must pass two conditions:
    • The law must be furthering a compelling government interest.
    • The law must be the least intrusive method of accomplishing its goal.
  4. Congress has created an exemption to the contraception mandate. If the mandate violates the religious beliefs of certain types of organizations, they have passed the burden of cost to the insurance provider or to the government itself.

So what’s the takeaway? Nothing in Hobby Lobby decision will stop women from having access to birth control. In fact, the way the system is set up, they will still have insurance coverage for free birth control!

Congress’ exemption ensures that insurance will cover these costs, even for women working for Hobby Lobby. This cost will not come out of the worker’s pocket. In fact, the very alternative accommodation that Congress created was pretty much the only reason that the Supreme Court didn’t force Hobby Lobby to pay for the insurance (from Lyle Denniston’s analysis @ SCOTUSblog):

Is that enough of an accommodation of the owners’ religious objection? The two key opinions on Monday seemed, literally speaking, to say it was.

Justice Alito wrote: ”An approach of this type . . . does not impinge on the [companies’ or owners’] belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.” (The government’s interest here is to assure that women have access to the birth-control services.)

Alito’s opinion for the Court went on, saying that the dissenters’ on Monday had identified “no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.”

Justice Kennedy, in his separate concurring opinion, made the same point. And, in fact, he was more emphatic. Taking note of the “existing accommodation the government has designed, identified, and used for circumstances closely parallel to those presented here,” Kennedy said flatly that “RFRA [the Religious Freedom Restoration Act] requires the government to use this less restrictive means.”

It is rather difficult to read those comments by those two Justices as anything other than a declaration that religiously oriented owners of closely held companies must be satisfied with letting the “middle man” take on, in their place, the obligation to provide the birth-control coverage. That, the comments seem to say, is good enough.

If there was no alternative accommodation in the law to cover the cost of insurance for contraceptives, the correct legal result would have been to force Hobby Lobby to pay for it. After all, I don’t think any justice disputed the idea that an insurance mandate for contraceptive coverage was NOT furthering a compelling government interest. The only question was whether the compelling government interest was satisfied in the least intrusive means consistent with the RFRA. The Court found that it was.

Now, back to the lede. Many of you out there think that it’s absurd that a corporation would be exempted from providing basic health insurance because God says contraception is abortion. And many of the rest of you think that it’s unconscionable that someone be forced to pay for something that goes against their most closely held religious beliefs; in essence funding murder. And the libertarians out there worry that if the government can make you pay for something that violates one of your First Amendment rights, there’s nothing they can’t make you pay for. These are all moral questions. These are not legal questions. The Supreme Court didn’t even try to answer these questions.

The Supreme Court found a legally consistent way to accommodate the compelling government interest declared in the ACA and the least restrictive means test demanded by the RFRA. And at the end of the day, lest I repeat it one more time, the net result is that Hobby Lobby employees will still have insurance coverage for all the free contraceptives they care to use.

Seems pretty cut and dried to me. This is much ado about nothing.

UPDATE: Now that I’ve actually read the ruling, I see an error in the above. The HHS accommodation for employers who have religious objection to these methods of contraception TODAY only applies to religious non-profits. It doesn’t apply today to for-profits. The argument of the court is that applying the accommodation to for-profit employers is a less-restrictive means to achieve the compelling government interest than the mandate, and for that reason the mandate violates RFRA. I would expect the HHS to quickly expand their accommodation in response to this ruling.

Freedom, Group Identification, and Consequences

To anyone trying to make the Cliven Bundy issue, or the Donald Sterling issue, or the Brendan Eich issue about freedom of speech…

…PLEASE STOP…

They are unrelated, and MOSTLY irrelevant, to free speech.

None are a question of freedom of speech.

All three are a question of bad PR and violating contract terms.

These idiots are not victims of oppression… at least as far as speech goes.

“Well, that’s just your perspective… this is mine”

No… You can have your own opinions, you cannot have your own facts.

This is not an opinion or a perspective, it is a fact. In making this argument, you are entirely and completely incorrect, in both fact and in principle…

That’s not so bad… it’s OK to be wrong… everyone is wrong about many things, every day.

What IS so bad, and why you must be corrected, is that by passionately advocating such a patently false viewpoint, and making weak and specious arguments to support it, you weaken the very important ACTUAL battle to restore and maintain free speech.

Using bad arguments for your cause HURTS your cause, it does not help it.

There are some very serious threats to free speech in this country, particularly on college campuses and in schools. There are supreme court cases in this session, and coming up addressing these issues right now… and the picture is decidedly mixed.

    We are dangerously close to criminalizing, or at least accepting some kind of official sanction, on “hate speech” in this country. We already HAVE criminalized “suspect motivations”, through “hate crime” law.
    The Government is spying on and intimidating reporters, with the DOJ going after those it perceives as enemies.
    Witnesses are being suppressed out of fear of government retaliation.
    The IRS has gone after conservative political groups, simply for being conservative.
    We have enacted insane regulations about who can say what, when, and with how much and whose money, when it comes to politics and elections.

These are HUGE REAL PROBLEMS.

By equating things which are not about rights and freedoms, to things which are, you weaken rights and freedoms, and make them more difficult to defend.

Freedom of speech means you have the right to say as you damn well please and the government can’t stop you or punish you for it (except in some very strictly limited ways).

It doesn’t mean that private persons or organizations have to publish you, support you, employ you, associate with you, provide you with a forum or an audience, or listen to you.

Freedom of speech does not mean freedom from consequence.

If you can’t back everything you say, and accept the consequences, then perhaps your problem is not one of lack of freedom, but of lack of courage.

“But… but… political correctness… thought police… BAD”

Yes.

I never said that political correctness WASN’T a chilling force on freedom of speech and even freedom of conscience… Of course it is.

…But that is not the same as government using force against you because of it (though with “hate speech” and things like campus “speech codes”, we have to be very careful of that).

The problem with believing in freedom is that you have to believe in it for everyone, including people you don’t like, or whose ideas you don’t like, or who do bad things with it.

Private individuals and organizations can choose who they wish to associate with freely, and who they wish to support or oppose freely (or at least they are supposed to be able to).

That means both things and people that you like, and things and people that you don’t.

That means you can be fired for expressing yourself. It means you can be fired for your political and social views. It means you can be fired for your private behavior. It means you can lose your customers, your money, your reputation…

In fact, everything but your life, and your freedom.

A free society means we have to put up with that.

We don’t have to like it, but we DO have to put up with it.

And many of us actually have very little problem with it… so long as it’s aligned with THEIR personal beliefs.

Frankly, I don’t see very many “social conservatives” complaining very much when it’s “progressives”, gays, atheists, muslims, “perverts” etc… who experience negative consequences for their beliefs (admittedly, that is certainly not true of all. Some do decry all of this as suppression of free speech and freedom of conscience).

Most “social conservatives” aren’t complaining when church groups or conservative groups try to get certain things banned, or removed from libraries or schools, or have teachers, or school administrators, or abortion providers fired…

…because you don’t like their ideas or how they express them.

…Really, most anyone who you would identify as the enemy, or the “other side” or whatever other outgroup identification it may be…. seems it’s ok to you if THEY have to live with the consequences of their choices, actions, and words…

Most of you are only complaining when it’s happening to those you identify as YOUR ingroup, or for people whose opinions and ideas you agree with.

Again, not always, not everyone… but most.

The same of course is true of “the other side”… starting to see the point yet?

So really… What you’re asking for is not “freedom of speech”, it’s “freedom of speech that you like”, and freedom FROM both speech, and consequence that you don’t.

That’s not freedom. That exactly the same as “the other side”… you just like the opinions better.

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

It isn’t, wasn’t, aint ever gonna be…

I mentioned Social Security as an entitlement payment in my post on the government shutdown, and it raised a fairly common objection in several who read it:

They don’t think of Social Security as an entitlement, or a welfare payment; they view it as their right, by virtue of having contributed to the system for their entire working life.

So, time to correct a very major, and unfortunately common, misconception.

Social Security, is NOT a pension, nor is it insurance.

Now, I realize that the majority of the American public believe this is so, because they have been deliberately defrauded by our government…

First read this to understand the scope and scale of the fraud, and the problem it (now only vestigially) masks:

The Greatest Fraud in the History of the Human Race

Ok… so, by now, most people understand that Social Security, as it is, is essentially a legal Ponzi scheme (whether they accept that, or admit it… if they can do basic match, they at least understand it).

What I really didn’t fully appreciate until recently, is that often, even people who understand this is true, don’t understand why or how it got that way.

There is a very common misconception, even among otherwise economically, historically, and legally well informed and educated people, that the current state of Social Security is somehow a twisting of what it was intended to be, or taking advantage of loopholes etc…

Many people believe that Social Security was set up to be an annuity based insurance and pension plan. That paying FICA contributions was supposed to buy you into a long term annuity, or investment plan, and that your Social Security payments were intended to be the product of that investment.

They think that the “trust fund” exists, and was set up to collect and invest the contributions of the workers who paid into it, so that the investments would fund the workers retirements.

They believe that the problem with Social Security is that congress has been raiding the trust fund since 1958 (most don’t know it was since ’58, but they are sure that’s why Social Security is broke).

Unfortunately, every bit of this idea is entirely incorrect… and people who hold that idea generally do so, because they were deliberately misled.

I’s simply not true… though many… perhaps most… people believe it is; but in fact, Social Security was always nothing more than a pyramid scheme, and an entitlement.

They misunderstand entirely… Because they have been deliberately deceived; as has been the majority of the population.

Social Security was NEVER, EVER, an annuity, pension, or insurance.

Actual insurance, annuities, pensions etc… were not part of the legislation that created it, or anything thereafter.

Also, there never was an actual “trust fund” as such… simply an accounting of surplus contributions which were, in theory, to be placed into low yield “no risk” treasury bonds.

Note, I said “surplus contributions”… this means contributions in excess of payouts to existing recipients. Because benefit payments are not made from the proceeds of investment, they are made using the payroll taxes of those currently paying in today (this is why we call Social Security a ponzi scheme… When Bernie Madoff does it, it’s fraud and he goes to jail. When the government does it, it’s… well it’s still fraud, even worse fraud… but no-one goes to jail sadly).

The sham of it, particularly the sham of the accounting trick they called the “trust fund” was publicly proclaimed as early as 1936 (by Alf Landon in his presidential campaign).

Social Security is, and always has been, a tax and entitlement distribution scheme.

The government lied, and called it insurance, but in fact it has never been anything other than a payments and distributions pool, funded by taxes.

You can look it up, in 42usc (the section of U.S. code defining the various programs known as Social Security).

The programs collectively known as Social Security are referred to as insurance several times, but in fact they very clearly are not. The legal definitions and descriptions make this very clear. Social Security is a tax and entitlement disbursement scheme, by act of congress.

There is no individual ownership, no accrued value, no capital gain, it cannot be transferred, and it can be changed (or removed), at will, by congress; without being construed as a taking without due process.

It is NOT INSURANCE.

Perhaps I am not explaining this properly…

It’s not that congress went against the intent, or written provisions of the law, and changed Social Security from what it was supposed to be, to what it is…

It’s that in fact, the law was NEVER what they told the American people it was.

In fact, if the law HAD been what they sold it as, then that law would have been declared unconstitutional by the supreme court (as had the earlier railroad pensions act, which actually DID created a property based pension scheme). It was specifically because it WAS a tax and distribution, that congress had the power to do it; and was argued thus before the court in 1937.

Helvering v. Davis clearly defines Social Security “Contributions” as a tax, and social security “benefits” as welfare payments. This is the basis for it’s constitutionality.

Fleming v. Nestor in 1960, reaffirmed that FICA is a tax, and that the “contributions” are government property, to be done with as the government sees fit; and that “contribution” through FICA did not cause one to accrue a property right to any asset, pension, or insurance scheme, nor did it create a contract consideration, right, or obligation on the part of the government. Further, it affirmed that “benefits” were NOT insurance or pension disbursements, but entitlements by act of congress, and that congress could change them at any time in any way they chose, without being construed as a taking under the 5th amendment (though they did say that they must have cause and due process to do so… but any legitimate cause within their purview would do).

Justices Black and Reich, specifically dissented from the majority opinion, explicitly and expressly addressing the issue of property rights. They believed that such contributions, to such a program, SHOULD as a matter of moral and public good, be considered property, and have property rights attached. They acknowledged however that the law as written did not, and that by strict interpretation the majority was correct… They just thought it was better to make it property anyway.

Unfortunately, it’s not… It is neither a pension or insurance, and never has been, from the very beginning.

However, almost every explanation ever given the public, and in most documentation, it is referred to as insurance, or even a pension.

All as part of the greatest fraud in the history of the human race.

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

The Constitutional History Lessons You Didn’t Learn in School

More often than not, history is written by the winners and taught by individuals who love big government. Tom Woods’ Liberty Classroom has been providing a refreshing non-P.C. presentation of history that is rarely brought up. Very little of what we call history either is “settled” without controversy or without lingering questions.

• What is the true philosophical inspiration for the Declaration of Independence?
• What is the meaning of “natural law” and “natural rights”?
• Was the American Revolution just about “no taxation without representation”?
• Was the Articles of Confederation really inadequate for the needs of the several states?
• Was the Constitution itself legally drafted and adopted in replacing the Articles of Confederation?
• How controversial was the Constitution previous to its ratification?
• Was it originally the intention that the union would be perpetual? (i.e. Was it the common understanding during the ratification debates that states could leave the union or not?)
• What did the founders think about states nullifying federal law?
• Was the American Civil War (or “War Between the States”) really about slavery?
• Might slavery have ended without war?
• Was the Supreme Court intended to be the final arbiter of both state and federal law?

These questions and more are explored in Tom Woods’ Liberty Classroom. The video below “German and British Antecedents [to the U.S. Constitution]” is the first of 15 videos available for free from Liberty Classroom (watch the rest here,). Each lecture runs for about 25 minutes. Enjoy!

Gay Marriage, Religious Rights, and Freedom of Association

(Re-post: originally posted November 23, 2008)

California’s Proposition 8, the ballot measure aiming to outlaw same sex marriage, passed on a very close vote. Prop 8’s supporters* pushed a campaign of fear, misinformation, and a complete distortion of the meaning of individual liberty. This campaign commercial is typical of the intolerance and hysteria being promoted from the “yes” campaign.

Argument #1: Churches could be forced to marry gay people.

Argument #2: Religious adoption agencies could be forced to allow gay couples to adopt children; some adoption agencies would close their doors as a result.

Argument #3: Those who speak out against gay marriage on religious grounds will be labeled “intolerant” and subjected to legal penalties or social ridicule. Careers could be threatened.

Argument #4: Schools will teach students that marriage is between “party a” and “party b” regardless of gender. Schools also teach health and sexuality and would now include discussions of homosexuality.

Argument #5: There will be “serious clashes” between public schools and parents who wish to teach their children their values concerning marriage.

Argument #6: Allowing gays to marry will restrict or eliminate liberties of “everyone.” (Example: Photographers who do not want to work at same sex weddings)

Argument #7: If Prop 8 fails, religious liberty and free speech rights will be adversely affected.

My response to these arguments is that we should be advocating for more freedom for everyone rather than restrict freedom of a group or class of people. The state should recognize the same contract rights** for a gay couple as it would between a man and a woman. To get around the whole definition of marriage issue, I would propose that as far as the state is concerned, any legally recognized intimate relationship between consenting adults should be called a “domestic partnership.” From there the churches or secular equivalent to churches should have the right to decide who they will marry and who they will not (just as they do now).

Rather than subject an individual’s rights to a vote or either party forcing their values on the other, we should instead advocate freedom of association and less government in our everyday lives. Somewhere along the way, we as a people decided that the government should involve itself more and more into the relationships of private actors. The government now has the ability to dictate to business owners quotas of who they must hire, family leave requirements, how much their employees must be paid, and how many hours they work (among other requirements). For the most part, businesses which serve the public cannot deny service to individuals for fear of a lawsuit.

A return to a freedom of association society would remedy arguments 1, 2, 6, and 7 from this ad. As to Argument #3, the anti-gay marriage folks are going to have to realize that in a free society, they are going to have to deal with “social ridicule”*** or being called intolerant. Anyone who takes a stand on any issue is going to be criticized and called names. In a freedom of association society, an employer would have every right to decide to layoff individuals who hold views or lifestyles they disagree with.

While we’re on the subject of intolerance, perhaps we should take a moment to consider if people who would deny equivalent rights which come with marriage are intolerant. This ad is exactly the same as the previous ad except that the words “same sex” and “gays” have been replaced with “interracial.”

Believe it or not, there was a time in this country when there were such laws against interracial marriage. Those who argued against interracial marriage made very similar arguments to what the anti-gay marriage people are making now. Today most of us would say those people were intolerant.

Intolerance aside, Arguments 4 and 5 can also be answered by reducing the role of government in our lives. What the “yes” people should be arguing for is a separation of school and state. While we as a nation are trending toward more government involvement in K-12 education, those who do not want the government schools to teach their children the birds and the bees or enter into discussions of homosexuality can put their children in private schools which share their values or home school. School Choice is the obvious answers to these concerns.

Prop 8’s supporters have turned the whole idea of individual liberty on its head. They claim that in order to preserve the rights of the greatest number of people a minority of people necessarily must sacrifice their rights. This is absurd and dangerous. Perhaps it is this complete misunderstanding of individual rights among Californians which contributed to Prop 8’s passage.

When explained properly, the rights of life, liberty, and property is the easiest concept to understand.

Hat Tip: The Friendly Atheist

Posted Elsewhere:

Dan Melson @ Searchlight Crusade has written a very thought provoking post on this issue. Some of his arguments I agree with, others I don’t but all of his points are well argued.

» Read more

The Right to Bear Arms Highest Ranked Topic at The Liberty Papers

Every now and then I take a look at the sitemeter for The Liberty Papers to get some idea of how many people are actually reading and what they are reading. When I went to the pages ranked by entry and exit, I couldn’t help but notice how many pages were being viewed concerning the 2nd Amendment or the right to bear arms. Of the top 20 entry pages, 8 are 2nd Amendment related and the same is true for exit pages.

Given how much discussion there is at present time about the meaning of the 2nd Amendment, I suppose this shouldn’t come to much of a surprise. Since this is an important as well as popular issue, and rather than restate many of the same arguments in favor of the right to bear arms yet again, I thought I would link these 8 posts here by entry page ranking.

#2 (351 visits) The Best Explanation of the Second Amendment I Have Ever Heard by Stephen Littau (2007)

#5 (155 visits) Why Does the Second Amendment Exist? by Eric (2005)

#7 (133 visits) Larry Correia on Gun Control by Quincy (2012)

#10 (59 visits) Yes, the Second Amendment really means what it says… and that means you too Chicago by Chris (2010)

#13 (40 visits) Random Acts of Violence Can Be Mitigated But Not Prevented by Stephen Littau (2012)

#14 (39 visits) Hillary Clinton: Second Amendment Defender? by Stephen Littau (2008)

#15 (38 visits) When is Armed Rebellion Appropriate? by tarran (2008)

#17 (31 visits) Harold Fish is Free! by tarran (2009)

Read these posts again and let’s discuss them in the comments section.

The Basic Premise Behind Campaign Finance Laws

A great deal of ink (or film, or bits) has been expended this election cycle, primarily on the far left (though some on the right… particularly with the more populist factions), decrying the actions of “independent” political action committees, superPACs, and “issue advocacy groups”; as somehow corrupt, evil, anti-democratic etc..

The rhetoric on the left, is that the “citizens united” decision has basically given “shadowy actors” like say, Karl Rove and the Koch brothers, effectively a blank check to “buy elections”.

Of course, the idea that we need to “get the money out of politics” has been a political meme for approximately as long as politics has existed…

… and to a degree, there is a point there. ACTUAL political corruption, in the sense of directly buying influence or buying votes; is certainly something we need to combat as much as possible.

We’ll never eliminate it of course, humans have an endless capacity for venality, greed, and self interest. That’s just the way it is…

Frankly, the only way to get money out of politics; is to get politics out of money.

By which I mean, that so long as politics has an impact on my business and my life (and it always will); if I have money, I’m going to have a strong incentive to spend it, to make the political process work to my advantage… Or even just to hurt me less.

And that’s the way it SHOULD be… I SHOULD be able to spend my money to reduce the harm that government does to me, or to try to make government come out to my advantage; so long as I am not actually bribing a legislator to vote the way I want, committing fraud etc…

There’s a simple way of combating this; and that’s reducing the power of government to impact the individual, such that they no longer have any incentive (or really, so that their incentive is lower… since you’ll never get that little political interference) to spend their money in that way.

But that’s not what these folks are decrying from the hilltops.

What they are screaming about, is essentially free speech they don’t like.

Make no mistake, money IS speech. If you don’t have money, you can’t buy media air time. If you can’t buy media air time, then you can say whatever you want, but you’ll be speaking to an empty room.

One of the basic principles of free speech, is that you have the right to say whatever you like (short of libel, slander, fraud, or incitement to crime); so long as you are not infringing on others rights by doing so.

Another one of those basic principles is that you have the right to say it… But I don’t have to listen to it, and you don’t have the right to make me.

It’s up to me, to decide who and what I listen to, and to use my own judgement and experience in doing so.

So, you may not like what these people are saying; but so long as media companies are willing to sell them airtime, you have no right to restrict that. By attempting to do so, you are attempting to regulate free speech (conversely, you also have no right to force those media companies to sell time to opposing viewpoints; another leftist canard about “fairness”).

Makes sense right?

Well, it does to me… and to the supreme court; and when it’s causes that leftists agree with they’re perfectly OK with it.

The REAL argument, comes down to this:

“We can’t allow these bad evil people and groups to speak, because although I’m smart enough to know the difference between lies and truth, the general population are too stupid to do so”

So, rather than actually convince the people of their own side of the argument, they seek to prevent the other side from even speaking.

It’s entirely consistent with the historical leftist narrative that the “proletariat is fooled by the comfortable goods of the bourgeoisie and the lies of the ruling class” etc… etc…

Their basic premise here being that if the people could only hear and understand the truth, that the leftists ideas would be universally acclaimed as true and necessary, and immediately put into place (with the leftist elites themselves in charge of course… after all, who better to lead than those who understand the ideas the best).

They can’t accept the idea that maybe people don’t WANT more government, with more power over everyone’s lives and businesses… Because that would go entirely against the ideas they have based their entire lives and identities on; and that simply can’t be possible.

…but that’s another argument entirely.

Oh and I should note that there is a “right wing” authoritarian narrative that is nearly identical in principle, that the people are too stupid, lazy, corrupt etc… To be trusted to make their own MORAL decisions; and that the force of government must be used to make people “do the right thing”. That’s equally as bad; it’s just not what we’re talking about right now.

Now… I hate these ads as much as everyone else… But not because I decry “those fools actually believe these foul lies” (though they may be foul lies, and “the people” may believe them); simply because they’re REALLY IRRITATING.

If the people actually are so stupid that they believe “foul lies”; and the other side isn’t smart enough, or doesn’t have a good enough argument to convince them otherwise…

Well, so be it.

That’s the problem with a democratic representative republic. You have to live with the representatives the electorate choose, and the things they vote for.

It’s also why it’s so critical that we have a strictly limited government of enumerated powers only… Or rather, that we return to that; as we haven’t actually had such a government since 1861.

Our government was intended to provide protection against the tyranny of the majority… Unfortunately from the first day that government was put in place, people with “good ideas” have attempted to (often successfully) use the force of government, to have those ideas implemented, without regard to the legitimate powers of government, the desire of the people, or the rights of those being governed.

The left are perfectly willing to crow about how great democracy is… until the people refuse to vote for what they want; at which point they try to get the courts to make the people do what they want anyway.

Because, as we all know, when it comes to leftist causes, they are all “moral imperatives”…

Or as a very smart man put it once “The ends justify the means”.

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

Did Justice Roberts Help Romney and Provide a Path to Repeal ObamaCare?

Over at Red State, Erick Ericson theorizes that Chief Justice John Roberts joined the majority opinion as a way to put ObamaCare back into the hands of the political branches to decide the law’s fate:

The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it [the individual mandate] was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.

It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.

Our own Doug Mataconis said he “would not be surprised to see it be a 6-3 decision” way back in April for the following 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.

Erick Erickson also mentioned on his radio program that many conservatives and libertarians who aren’t thrilled with Romney as the nominee will put aside their objections and vote for him if it means repealing ObamaCare.

I hate to say it but I think Erickson has a point. ObamaCare being upheld is a game changer. Prior to this decision that was supposed to strike down all or part of ObamaCare, I was absolutely certain that I would enthusiastically vote for the Libertarian nominee Gary Johnson rather than settle for the lesser of the two evils. With ObamaCare being upheld, now I have to say I’m not so sure. I’m not normally a single issue voter but if ObamaCare isn’t stopped and soon, we will be stuck with it for at least a generation.

The problem is though, it might already be too late. Several things have to happen just right. First Romney must be elected and the GOP must take control of the Senate and hold the House. Second, we have to trust that Romney and the Republicans in congress will actually follow through. We’ve been disappointed before.

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.

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

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.

————————————————

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.

Quote Of The Day

Is there a more worthless phrase on the political landscape than “judicial activism”?

And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

Really? EJ Dionne thinks that a legislature should be able to do whatever it wants, even if it violates the Constitution (as the Florida elections board did in Bush v. Gore and the US Congress did in Citizens United)? So he wants to throw out the entire doctrine of judicial review that’s existed since the days of English Common Law & Marbury v. Madison?

No, I don’t think that’s it. I don’t think he supports the Congress doing things that are unconstitutional. He’s just attacking the Court for striking down policies he likes. Just as conservatives do when the Court strikes down policies they like.

Claims of “judicial activism” are just criticisms of a Court doing something you disapprove of. But claims that the Court should defer to the legislature are misplaced — the Court is a check on the power of the legislature, as it should be. It’s there to rein in the legislature when they try to do something beyond the bounds of their Constitutional authority. That’s not judicial activism, that’s their job.

SCOTUS: Police Placing GPS Tracking Device on a Vehicle Without Warrant Violates the Fourth Amendment [or Does it?]

How about some good news on the civil liberties front to kick off the week for a change? Robert Barnes writing for The Washington Post reports that SCOTUS ruled 9-0 in United States v. Jones stating that the police placing a GPS tracking device on a person’s vehicle and tracking said vehicle over days, weeks, or months without a warrant violates the Fourth Amendment’s guarantee against unreasonable searches.

The Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the justices left for another day larger questions about how technology has altered a person’s expectation of privacy.

Justice Antonin Scalia wrote that the government needed a valid warrant before attaching a GPS device to the Jeep used by D.C. drug kingpin Antoine Jones, who was convicted in part because police tracked his movements on public roads for 28 days.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” under the Fourth Amendment’s protection against unreasonable searches and seizures, Scalia wrote.

[…]

Alito’s point was that it was the lengthy GPS surveillance of Jones itself that violated the Fourth Amendment and that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

“For such offenses,” he wrote, “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

The only disagreement among the Justices was whether or not the decision went far enough to protect individuals in a 21st century world based on a 18th century law (i.e. the Fourth Amendment).

Hey, even a blind squirrel can find a nut once in awhile and in even rarer cases, 9 Supreme Court Justices.

***Correction/Further Analysis***
If you followed the link to The Washington Post article, you might notice that the parts I quoted don’t match up exactly. This is because the article has since been edited with a more complete explanation of what United States v. Jones really means. It appears that I put entirely too much trust into what was being reported in the media here and elsewhere (and I still haven’t gotten around to reading the opinion for myself).

Doug Mataconis (who is a lawyer; I am not) was the first to point out that the coverage of this ruling isn’t quite as good from a civil liberties perspective as the media would have us believe:

I think all you can really say is that, under circumstances of this case, the Court found that the use of the tracking device without a warrant was impermissible. As the majority opinion notes, however, the Government attempted to raise in their arguments to the Supreme Court the theory that the search was supported by reasonable suspicion and/or probable cause to believe that Jones was the leader of a drug gang. Under such a theory, the use of the tracking device would have theoretically been justified even without a warrant.

You can read a more detailed analysis from Doug here Outside the Beltway.

Doug also pointed me to this article by Orin Kerr at The Volokh Conspiracy post entitled “What Jones Does Not Hold”

It seems that I wasn’t the only one mislead about the true impact of this ruling. Even Radley Balko at The Agitator had to make some corrections to his post regarding this case and made reference to the same post by Kerr as well as an even more discouraging analysis from Tom Goldstein at SCOTUSblog.

Montana Firearms Freedom Act: Tilting At Windmills

While I laud any state trying to expand the freedom of its residents while simultaneously thumbing it’s nose at Washington, I can’t see this ending well:

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

  • That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
  • That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
  • That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
  • Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.
» Read more

SCOTUS Gets Snyder v. Phelps Exactly Right

If there is one thing that unites most Americans of every political persuasion, it would be the universal disgust of Fred Phelps and his Westboro Baptist Church. Hell, even the KKK has distanced itself from this hate group ( a very small group that consists mostly of Phelps’ family).

All that said, even as disgusting, vile, and hateful as their speech is, even their speech is protected by the First Amendment. In a 8-1 ruling in Snyder v. Phelps, SCOTUS reached that very conclusion.

From Justice Roberts Opinion of the Court:

P12

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing “outrageous.”“Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the]speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t]’” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted).

[…]

[P14 and 15]

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Justice Alito, the sole dissenting Justice also offered a very good observation about WBC’s activities:

Alito, J., dissenting

P4 and 5

On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations […]

But of course, a small group picketing at any of these locations would have probably gone unnoticed.

[…]

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain.

In a free society, we have to accept that there will be people like Fred Phelps that we have to tolerate. It’s a very slippery slope to suggest that due to the offensive nature of WBC’s speech that the First Amendment doesn’t apply. As Justice Alito says here, the only reason why WBC chooses to picket funerals is because they know they will get publicity. The best thing the MSM can do is ignore them; don’t give them the free publicity they so crave. Phelps has a right to speak but not a right to be heard.

I have nothing but sympathy to the Snyder family and am very sorry they had to be subject to the hateful antics of Fred Phelps on the day they buried their son. The sad irony is, if not for the brave men like Matthew Snyder, Fred Phelps would not have the ability to express himself in the manner he does.

Open Thread: Successes and Setbacks for Liberty in 2010/Hopes for 2011

Was 2010 a good year or bad year for liberty and why? Like most of you will likely respond, 2010 was very much a mixed bag IMHO.

On the positive side, the mandate section of ObamaCare was found unconstitutional, the military’s “Don’t Ask, Don’t Tell” policy was repealed, Wikileaks exposed the federal government for the corrupt organization it is, the Democrats took a beating on election day, and the Bush era tax cuts were extended (though with the return of the death tax, extension of unemployment benefits, and other compromises in the bill, I’m not yet sure if this was a good or bad thing).

On the other hand, Republicans gained ground on election day (I’m not optimistic that they have changed much since the last time they ran things), the vast majority of incumbents in both parties were easily reelected, government spending is way out of control, the Fed wants to pump some $600 billion into the economy by printing more counterfeit money, unconstitutional invasive searches continue to take place at airports in the name of safety, both Democrat and Republican politicians consider Wikileaks to be a “terrorist” organization, and President Obama believes he can assassinate American citizens where they stand with no due process whatsoever.

On the criminal justice front, The Innocence Network (part of The Innocence Project) exonerated 29 individuals in 2010 for crimes they did not commit. Back in March, Hank Skinner came within an hour of being executed when SCOTUS halted the process. Skinner’s case continues to wind its way through the courts. In other death penalty news of 2010, Kevin Keith’s death sentence was commuted to life by Gov. Strickland, Anthony Graves became the 12th death row inmate to be exonerated in Texas, a key DNA sample was determined to not be a match for another Texas man, Claude Jones who was executed in 2000, and Texas continues to stonewall inquiries into the likely wrongful 2004 execution of Cameron Todd Willingham. As these questionable death penalty cases pile up, hopefully this will be the beginning of the end of the death penalty in Texas and elsewhere.

In a couple of other cases we never quite got around to at The Liberty Papers but deserve to be mentioned: Cory Maye was granted a new trial by the Mississippi Supreme Court because the trial judge failed to give jury instructions to consider a “defense of others” defense and in Arkansas, the Arkansas Supreme Court ordered a new hearing for the so-called “West Memphis 3” to consider newly discovered DNA evidence and juror misconduct from the original trial (if you are not familiar with this case, I urge you to follow this link as a starting point. The more I have looked into this case the more disturbing I find it to be…a perfect example of what is so terribly wrong with the system).

Hopes for 2011
Rather than offering predictions for 2011, here are some of my hopes:

– I hope that the justice will be served in the above cases.

-I hope I am wrong about the Tea Party Republicans and that they will actually be a force of positive change for more liberty and smaller government

-I hope that Ron Paul decides not to run for president for the 2012 campaign but instead puts his support behind former New Mexico Gov. Gary Johnson (I’ll get into my reasoning in a future post).

-I hope by this time next year, I’ll have far more successes than setbacks for liberty to report.

Now it’s your turn. How do you feel about the state of liberty in 2010 and how do you feel about the year ahead?

Even Death Penalty Supporters Urge Ohio Gov. Strickland to Spare Kevin Keith

Its one thing when anti-death penalty activists petition a governor to pardon or commute a sentence of an individual scheduled for execution but quite another when death penalty supporters agree. Kevin Keith is scheduled to be executed by the state of Ohio on September 15th for the 1994 murders of 2 adults and 1 child; a crime he has maintained he did not commit. Despite exculpatory evidence which points away from Keith and despite Gov. Ted Strickland’s (D) own public comments where he said he found “certain aspects” of the case “troubling,” the parole board voted 8-0 in favor of executing Keith.

Fortunately, the parole board’s decision is non-binding; Gov. Strickland or perhaps SCOTUS can still do the right thing and halt the execution until the more ‘troubling’ aspects of this case can be fairly reconsidered.

According to this article in The Guardian, among those who are urging Gov. Strickland to halt the execution are more than 30 former judges and prosecutors including former Ohio Attorney General and death penalty supporter Jim Petro (R) and former Ohio Supreme Court Justice Herbert Brown.

Jim Petro in a letter to Gov. Strickland:

“I am gravely concerned that the state of Ohio may be on the verge of executing an innocent person”

Justice Herbert Brown in another letter:

“There is a mass of exculpatory evidence, suppressed evidence, faulty eyewitness identification and forensic reports that support legitimate claims of innocence”

Innocence Network President and Clinical Professor at the University of Wisconsin Law School Keith A. Findley, while likely biased against the death penalty also wrote to persuade the governor:

Like so many of the wrongful conviction cases, tunnel vision by police, prosecutors, and even courts appears to have played a central role in Mr. Keith’s case and his ultimate conviction.

[…]

The evidence of these pernicious effects of tunnel vision, coupled with the compelling new evidence in Mr. Keith’s case, suggests that Ohio might be on the verge of executing an innocent man […]

Keith’s defense team, in a statement following the parole board’s decision points out that Gov. Strickland signed a bill into law which prohibited some of the very techniques investigators used against their client. Unfortunately for Keith, the banning of these faulty procedures came too late.

Yes, the case of Kevin Keith is indeed troubling. Maybe if a few thousand more can petition Gov. Strickland, he will be even more troubled to the point to where he will end this madness (click here to sign the petition).

In other troubling death penalty news, a federal judge has denied Troy Davis’ innocence claim despite 7 of 9 eyewitnesses recanting their testimonies against him.

Yes, the Second Amendment really means what it says… and that means you too Chicago

This past Monday, Samuel Alito, writing for the majority (with separate concurring opinions from Clarence Thomas and Antonin Scalia) in the case McDonald vs. City of Chicago and Village of Morton Grove; handed down what in 30 years will I believe, be held as one of (or perhaps half of a pair of, or the second in a series of) the most significant rulings in the courts history, not just for the right to keep and bear arms, but for the rights of all people in this nation.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion… all 214 pages of it… and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth… and I want to go into some of the background and issues surrounding the decision that aren’t necessarily about the right to keep and bear arms

However, that is going to get long…. and if you aren’t interested in constitutional law and the nature and exercise of the rights and powers of the states, it’s going to be boring. There’s only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.


Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don’t have time to write a book here, and a book is what it would take to cover this comprehensively (actually several… there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I’m going to break it out into another posts, and I’ll update this post with a link when I finish the other one.

… I should warn you, I’m already 5,000 words in, and I’m probably less than half done…

McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just “first”… In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state… a position generally ascribed these days to the “far right”; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we’ll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it’s application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be… depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed… as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called “campaign finance reform”); there will likely still be substantial restrictions allowed by the court. In any case, it will be years… likely decades… before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over… in fact it’s really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I’m going to end here and pick it up in the next, much longer, post.

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

Quote Of The Day

Supreme Court justice William Douglas, in the 1954 ruling Berman v. Parker (a precursor to Kelo, which “celebrates” its 5-year anniversary today):

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.

Such beautiful prose, fitting someone who wears that fine black robe.

Unfortunately, the opinion is also a blank check for Congress, a group not well known for their self-control.

One wonders exactly what this measures this court would ever have opposed, should Congress decide in favor of beauty and sanitation?

Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here, one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress, and Congress alone, to determine once the public purpose has been established.

Yep…

Completely blank check.

Hat Tip: Jason Pye @ United Liberty

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