Divine Sledge Hammer

Justice Scalia has a noteworthy opening to one of this terms Supreme Court cases, Padilla v. Kentucky:

In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.

This reminded me of the following passage from Robert Bork’s The Tempting of America:

Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage.  I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them.  He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage.  It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse.  The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.

There is both truth and wisdom in this. There are all sorts of silly things that men might try to impose on his fellows.  And on the one hand, I believe there is some merit to the view that something we call “law” must actually abide by some general definitional standard in order to be rightly called such, and thus cannot be entirely arbitrary.  But for the most part, to say that the Constitution would prevent lawmakers from doing something like making all marriage illegal, or some such silly thing, expands the document beyond its rightful scope.  Our Constitution is a tool for reasonably like-minded people with a modicum of respect for traditions, personal virtue, and sensible laws.  It is not an instrument to corral miscreants and fools under a banner of order they implicitly reject.

Of course, in light of the pending challenges to Obamacare and the individual mandate, I have to point out that the Court’s interpretation of the Commerce Clause is the reverse problem, the abdication of judicial review as to a critical limiting clause of the Constitution.  The reason for the Court’s initial abdication in Wickard v. Filburn, a reaction to FDR’s court-packing threat, is perhaps understandable.  The Court’s continued playing out of a 60 year old game of Constitutional telephone, however, is less so.

Add to: Facebook | Digg | Del.icio.us | Stumbleupon | Reddit | Blinklist | Twitter | Technorati | Yahoo Buzz | Newsvine

Wealth Care

This is spot on.  I’m embarrassed I didn’t see this before:

So let’s ask the question the left never asks: how is it possible for an insurance company to pay for these giant medical bills? What makes it possible is a whole set of statistical calculations. For every person who needs open-heart surgery or chemotherapy, there have to be a certain number of other people who are paying their premiums but haven’t gotten seriously ill. If the insurance company has gotten its calculations right, the expenses for any one person’s catastrophic care are balanced out by the premiums other people pay “just in case.”

You can see how Obama’s demands undermine this whole system. To ask insurance companies to cover a patient after the tumor is diagnosed is to ask them to take on a known expense. Combine that with another Obama demand: that insurance companies can’t charge higher rates for those who are at higher risk of getting sick. So if insurance companies have to take on a known expense and can’t charge a higher rate for it, how are they going to pay for it? By raising everyone else’s rates, redistributing their wealth to the new freeloaders.

This isn’t insurance, it’s welfare. And that’s the whole point.

Right. That’s why you need a mandate — not only to cover the costs of emergency care for the uninsured, as Romney insists, but to squeeze premiums out of people (healthy young people, mostly) who probably won’t need care at all. And what if that’s not enough of a corrective to the “maldistribution”? Well, then you add some taxes and squeeze a little more revenue that way. Why, here’s a nice tax now that already has Obama pal Deval Patrick panicking about the job losses it’ll create within Massachusetts’s medical-device industry.

But I’m sure it’ll all work out for the best. And if it doesn’t, who cares? It’s here to stay. That’s how entitlements work, you mean conservative, you.

The Max Baucus video clip, in which he explains in his own words the glorious redistributionist effect of the Wealth Care bill, is also here.

Add to: Facebook | Digg | Del.icio.us | Stumbleupon | Reddit | Blinklist | Twitter | Technorati | Yahoo Buzz | Newsvine

Repealer’s Toolkit

You’ll want to make frequent reference to these stats in the months ahead.

As a Pessimist, I’m a Glass-Half-Full Kind of Guy

Talking with a buddy at work today about ObamaCare, I realized I am not really the pessimist I sometimes make myself out to be.  I really want to believe it’s possible to get this thing repealed.  I really want to believe it’s possible to get it overturned in the courts as the egregious affront to the text of the Constitution that it is.  My friend, however, recites the fact that we have never overturned an entitlement program in our nation’s history.  That once folks start receiving their new entitlements, they will become vested rights, owed to them for the rest of their lives, and impossible to rescind—the same problem as with exorbitant public employee pensions.  That even if conservatives can overtake Congress this November, Obama would smugly veto any repeal that they might pass.

Intellectually, I’m a pessimist.  But like Fox Mulder, I want to believe.  It’s like every year how I swear off the Angels, who have disappointed me since I was a kid (except when they sneaked up on everyone in ’02).  I just don’t need the heartache.  And yet last year, I got caught up in the playoffs, and then found myself screaming at the bad umpiring and the Yankees generally through my television.

On balance, I think it’s a better way to be.  Understand in your head that the odds are against you.  But go right on acting as if you expect a victory.

Preparing for the Fight Ahead

Those of us against the health care takeover will need to support attorney general candidates like John Eastman who have vowed to challenge the constitutionality of ObamaCare.  Also, sign the pledge to support candidates to repeal ObamaCare.  There is a long, uphill legal battle coming to preserve our freedoms and roll back the huge encroachment of federal power that took place tonight.

[Update: Malkin makes a list of AG’s preparing to join the fray.]

Add to: Facebook | Digg | Del.icio.us | Stumbleupon | Reddit | Blinklist | Twitter | Technorati | Yahoo Buzz | Newsvine

219-212

I rarely use this blog to vent, but it’s an outlet I now feel the need to use as the inevitable looms near on the federal government health care takeover.

I know some baby boomers who are in favor of ObamaCare because, well, because they are baby boomers: God bless them (after all, folks whom I respect, like my parents, rank among them), but they got theirs.  They lived high on the hog of American greatness following WWII, before the regulatory state clamped down as tight as it has on us Gen-X’ers and Gen-Y’ers; before city planners and the green squad roped off America’s open spaces and told us “you can’t build here”; before bright-eyed bubble-pushing economists gave us stock bubbles and tech bubbles and housing bubbles; before the trustees of our tax dollars opened the floodgates of bank bailouts and safety nets; and before government experimenters rendered our economy utterly indecipherable.

I generally don’t take politics personally, but ObamaCare is really hitting me at my most vulnerable.  I’m in between the “safety net” underclass and the “I got mine” upper class.  It appears that ObamaCare will cost well over $200 billion a year.  That money’s gotta come from somewhere, and I put exactly as much stock in Obama’s “not one dime” more taxes promise as I do his openness promise, his rendition reform promise, his signing statement promise, his fiscal responsibility promise, his “no pork” promise, etc.

So what am I left with?  I am lucky enough to have a good job that pays a salary that, in any other time, would be plenty to get me started toward buying a home, starting a family, and socking away for retirement. But the economy tanked just before my wife got her master’s degree, and she’s been unable to work her “back up” job as a substitute teacher since schools have cut their budgets as they are forced to pay ballooning pensions.  The government is doing its best to keep housing prices artificially inflated, and California’s dysfunctional legislature just increased this state’s lead as the highest taxed state in the union.   Making things worse, we live in LA county, where voters just voluntarily voted themselves another cent sales tax increase toward a new rail boondoggle.

Someone close to me is getting a slightly different treatment, as he’s currently undergoing an audit by the IRS.  Apparently, when he was working construction a few years back, he goofed and believed he could deduct the miles to and from work sites.  He’s now looking at having to take out a loan to pay back-taxes.  Meanwhile, his mother-in-law continues to collect welfare for what’s going on something like over ten years, despite getting “married” two years ago to an employed fellow.  They were careful not to actually document their little sham ceremony, in order that she could continue to collect from us suckers who actually pay taxes.

So there I am:  those who make less money want to take mine from me, and the Progressivist demagogues who’ve already got theirs want to help them do it.  I can now say that I know the feeling to suffer as a minority the humiliating privation of my God-given rights from a rapacious and pitiless majority.

Add to: Facebook | Digg | Del.icio.us | Stumbleupon | Reddit | Blinklist | Twitter | Technorati | Yahoo Buzz | Newsvine

The Swimming Song

The wife and I have been watching the new show Parenthood.  It’s so-so, a near-exact take-off from the Steve Martin movie of same name.  But it introduced me to this Loudon Wainwright song, for which I will ever be grateful.

The 2400-page HCR Amendment Bill Now Complies with the “Eight Principles of Open Government” Huzzah!!

Here’s something amusing.  When I checked the OpenCongress.com site yesterday to view the text of the “Reconciliation Act of 2010”—the so-called “amendment” that the House previously had planned to use to “deem and pass” the Senate health care bill—I got this interesting message:

Apologies that the formatting of the bill text on this page is a bit messy — because Congress does not publish official info in ways that are compliant with the Eight Principles of Open Government Data, the OpenCongress team was obligated to manually assemble the HTML web code from the original .pdf document. We’re working now to make this bill text work like other bills on the site, so you’ll be able to permalink and comment on individual sections of bill text. For a summary of the Reconciliation Bill and ongoing news and blog coverage, see our Blog, follow us on Twitter, and let us know what you think by writing us with your questions and comments :: writeus@opencongress.org.

The “Eight Principles of Open Government Data” referenced by OpenCongress states that the objectives are

to develop a more robust understanding of why open government data is essential to democracy. [¶]  The Internet is the public space of the modern world, and through it governments now have the opportunity to better understand the needs of their citizens and citizens may participate more fully in their government. Information becomes more valuable as it is shared, less valuable as it is hoarded. Open data promotes increased civil discourse, improved public welfare, and a more efficient use of public resources.

Obama promised that “the public will have five days to look online and find out what’s in it before I sign it so that you know what your government’s doing.” (As the Cato Institute pointed out previously, this “was [Obama’s] first broken promise, and it’s the promise that keeps on breaking.”)  If anyone can read and decipher this 2400 page monster in five days—or, better yet, the four days that the House has between its submission on Wednesday and the vote on Sunday—I’ll buy them a Coke.  I feel comfortable this is a safe bet, given the chief actuary at the Centers for Medicare and Medicaid Services hasn’t been able to do it yet.  From the Corner:

In your letter, you requested that we provide the updated actuarial estimates in time for your review prior to the expected House debate and vote on this legislation on March 21,2010. I regret that my staff and I will not be able to prepare our analysis within this very tight time frame, due to the complexity of the legislation. We will, however, continue working to estimate the financial, coverage, and other impacts of the health reform package and will provide these results to you as quickly as possible.

As of today, at least, the Reconciliation Act of 2010 is finally formatted in HTML on the OpenCongress site.  Nice to see our “essential democracy” has resumed.

Add to: Facebook | Digg | Del.icio.us | Stumbleupon | Reddit | Blinklist | Twitter | Technorati | Yahoo Buzz | Newsvine

Up-Down vs. “Deem and Pass”: Start with the Text

Hon. Michael McConnell (writing here, here and here) is one of several constitutional law scholars (see also Jonathan Adler at Volokh) harboring serious doubt whether a purported passage of the Senate health care bill in the House would be constitutional if the House opts for the so-called “deem and pass” scheme.  These are the times I get really jealous of law professors, who have the time to delve deeply into these kinds of issues.  But after a quick look over the actual text of our Constitution, I’m reminded why we really don’t need a lot of deep thinking on a lot of the big questions.  The answer really isn’t that hard.

Have a look for yourself.  Article I, section 7 provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States . . . . But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.

Notice that, before a bill can become law, it has to pass both houses, and then be presented to the President.  What this immediately tells me is that this “amendment” bill that the House plans to pass is not an amendment to any law.  Instead, it is an amendment to the Senate’s bill.  And that tells me that, if the House is “passing” the Senate bill with a bunch of provisos—that is, we are passing this Bill so long as we get this other stuff in there, too—then the House isn’t really “passing” the Senate Bill at all!  In other words, it’s a “counter-offer” to the Senate Bill, not an “acceptance.”

Of course, we’d need to see the language of the forthcoming House “self-executing” rule that would purport to effectuate this.  But just after reading the text, I can’t see how this procedure could possibly be constitutional.  I’m with McConnell when he says:

There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.

There’s also an implicit affront to the constitutional guarantee that our legislators must sign on to all legislation by a “Yea” or “Nay” vote, and record their names into the voting rolls.  The “deem and pass” rule is obviously being contemplated to allow these legislators to avoid accountability for their votes.  The Constitution forbids this.

Rules Committee chair Louise Slaughter shoots back with the lame argument that the Constitution also allows the House to set its own rules.  But the Supreme Court in 1892 held in United States v. Ballin that, despite the discretion over its own rule-making, the House “may not by its rules ignore constitutional restraints . . . .”  So no, Ms. Slaughter, your committee’s rules are not self-legitimating.

Note: When the “deem and pass” rule is effected, the text should be available at the House Committee on Rules’ website here.

Add to: Facebook | Digg | Del.icio.us | Stumbleupon | Reddit | Blinklist | Twitter | Technorati | Yahoo Buzz | Newsvine

Analysis of the Spat over California AG Candidate Eastman’s Job Title Designation

A bit of controversy flared up yesterday surrounding California attorney general candidate John Eastman’s ballot designation concerning his job title.  According to the LA Times:

Republican attorney general candidate John Eastman has chosen the job description he will show voters on the June ballot: assistant attorney general. What he isn’t saying, though, is that he is an assistant attorney general in South Dakota.

One of his opponents, LA County District Attorney Steve Cooley, is accusing Eastman of “intentionally trying to mislead and misinform voters.”

Cooley’s criticism is a little thin.  Elections Code section 13107(a)(3) provides that a candidate must adhere to the following criteria in listing his or her job description:

No more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.

(Emphasis added.)  Subdivision (b) further provides:

(b) Neither the Secretary of State nor any other elections official shall accept a designation of which any of the following would be true:

(1) It would mislead the voter.

Andal v. Miller, 28 Cal. App. 4th 358, 364 (1994) interprets section 13107(a)(3) as follows:

The California Supreme Court has noted that “[a] major purport of the Elections Code is to insure the accurate designation of the candidate upon the ballot in order that an informed electorate may intelligently elect one of the candidates.” (Salinger v. Jordan (1964) 61 Cal.2d 824, 826, 40 Cal.Rptr. 361, 395 P.2d 49.) To further this purpose, the Secretary of State has issued guidelines for selecting ballot designations.³ These Guidelines define a principal profession, vocation, or occupation as “the primary job or work one does which is the means of livelihood or production of income, as opposed to a hobby or avocation. Some persons may work at more than one profession, vocation, or occupation. Exceptions may apply for persons retired or unemployed by choice or by circumstance. No designation which connotes a status is acceptable. Examples of unacceptable status claims include ‘parent’, ‘taxpayer’, ‘citizen’, ‘patriot’, ‘renter’ and ‘presidential appointee’. [¶] … A candidate may use either his or her current principal profession, vocation or occupation, regardless of the amount of time in which the candidate has engaged in such or, in the alternative, any principal profession, vocation or occupation in which the candidate was engaged over the course of the previous calendar year even though it may no longer be one in which the candidate is currently engaged. In choosing between the alternatives, the candidate must ask himself or herself: ‘What is my primary job right now?’ and ‘What was my primary job last year?’ Either job, if otherwise proper, based on the statutory criteria, may be used as a ballot designation.” (Guidelines, pt. II.C.1. & 2., p. 4.)

(Emphasis added.)

Now let’s take a look at Eastman’s role as South Dakota’s assistant attorney general.  As the LA Times explains:

Eastman is being paid $20,000 by the South Dakota attorney general to work on one case, according to documents provided by his campaign. Working on the South Dakota case is Eastman’s “primary professional occupation,” according to documents he filed with the state.

. . . .

In January, Eastman resigned as dean of the Chapman University Law School Law in Orange. Since then, his “primary professional occupation” is working on a U.S. Supreme Court case on behalf of South Dakota Attorney General Marty Jackley.

The Sacramento Bee further reports that “if [Sisney v. Reisch] reaches the U.S. Supreme Court, [Eastman] anticipates receiving at least an additional $100,000, documents show.”  Ken Blanchard further describes Eastman’s role as South Dakota’s assistant AG as follows:

As for the South Dakota angle, John is a very fine legal talent for us to secure in Reisch v. Sisney, No. 09-953. He clerked with Supreme Court Justice Clarence Thomas; he has written numerous briefs for court cases and participated in a number of high profile state cases; he is dean of a law school. The case involves a state prison inmate who is challenging the way kosher food is prepared at the prison. Charles E. Sisney brought suit “under the federal Religious Land Use and Institutionalized Persons Act for alleged interference with his ability to practice his Jewish faith.”

Eastman is listed as attorney for the petitioners (that’s basically us, the State of South Dakota). If the Supreme Court decides to hear the case, Eastman will appear to argue it on our behalf.

Thus, it is clear that “assistant attorney general” is one of Eastman’s “current principal professions, vocations, or occupations” under Elections Code section 13107(a)(3).  Since resigning as Chapman’s law dean—a sore loss for the school and the legal community as a whole—his assistant AG job now appears to be Eastman’s “primary job or work [he] does which is the means of livelihood or production of income.”  Andal, 28 Cal. App. 4th at 364.

But what Cooley is really bothered about is that listing “assistant attorney general” in a race for the office of California attorney general is purportedly “misleading,” as he claims it would suggest to voters that Eastman is in fact California’s current assistant AG, rather than South Dakota’s.  First of all, let’s go right back to where we started in Elections Code section 13107(a)(3): a candidate’s job description must be “No more than three words . . . .”  “Assistant Attorney General” just about does it for the word limit.  What word might Cooley suggest Eastman scrap in order to fit “South Dakota” in there? “Assistant”?  That would certainly be misleading.  “Attorney”?  Whoops, wrong profession altogether.  Not a lot of options there.  Simply put, the statute simply does not permit Eastman to list a job description any more precise than the one he’s already designated.

Moreover, the listing of a candidate’s job description does not generally require inclusion of the location or jurisdiction of the job.  A business owner wouldn’t need to name his company, nor a teacher the school district wherein he teaches.  Ironically, Eastman could well suggest it is he who stands to be harmed if voters misinterpret he has had any affiliation with California’s mismanagement to date.  In any event, the job description is meant to simply suggest the candidate’s general qualifications—that is, the what, not the where or who.

Of course, I’m sure Eastman appreciates the free publicity.

You should also read the rest of Ken Blanchard’s piece on Eastman here.

UPDATE: As it turns out, it does appear that Section 13107(a)(3) likely would permit the hyphenated form of “Attorney-General” to count as one word, as it appears in the Shorter Oxford English Dictionary (2002).  Thus, the Secretary would ostensibly permit the job description “South Dakota Assistant Attorney-General” (states count as one word, also, even if they’re really two).  Be that as it may, it still stands that no geographical requirement has been imposed for other candidates or other occupations.  In fact, Los Angeles District Attorney Steve Cooley, one of Eastman’s opponents, did not specify for which of the 57 California counties he is D.A. in his ballot description.  Is there a possibility voters would be misled into believing Cooley is their D.A.?  Of course.  But that is not the standard under Section 13107(b)(1), which gives the Secretary discretion to reject designations that “would mislead the voter,”or under Section 20716(c) of Title 2 of the California Code of Regulations, which requires the Secretary to determine that “there is a substantial likelihood that a reasonably prudent voter would be misled” by “taking into account the plain meaning of the words . . . and the factual accuracy of the proposed ballot designation . . . .”  In three short words, a candidate may not be able to prevent some voters from making unwarranted assumptions.  But the Secretary of State should not require candidates to use one of those three words to affirmatively mislead voters—e.g., require Eastman to offer geographical information irrelevant to his job qualifications that would suggest to voters that he doesn’t even live or work in this state.

More good info here, including Eastman’s petition against the Secretary.

Add to: Facebook | Digg | Del.icio.us | Stumbleupon | Reddit | Blinklist | Twitter | Technorati | Yahoo Buzz | Newsvine