Our little dictator lobs one over the bow of the Supreme Court. **UPDATE: Now with proof of my genius from the Fifth Circuit**

Lest you forget, oral arguments concerning Obamacare were had last week in the Supreme Court.  At stake: the individual mandate, and potentially the whole friggin’ law.  Despite the assertions of the legal geniuses residing in their ivory tower law schools, the Supremes didn’t seem convinced that forcing every American to purchase a product constituted “regulation of economic activity.”  In fact, at least five, and possibly six, of the Justices seemed skeptical about whether inactivity was the type of activity that could be regulated.  After the hearings were completed, everyone proceeded to overreact.

The most over-the-top, and predictable, overreaction came from the president yesterday.  In a speech delivered with the heads of Mexico and Canada(?), Barry proceeded to threaten the Supreme Court, just in case they were stupid enough to go against the family.

‘Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,’ Obama said.

I’m not sure overturning a law passed by Congress is unprecedented.  The last time I looked, the Constitution considers the Supreme Court to be  equal to Congress.  Moreover, the job of the Court has, for a few centuries, been to review legislation passed by Congress for its constitutionality.  In fact, the Supreme Court has overturned laws passed by Congress before.  Thus, doing so here would not be “unprecedented.”  Also, being that the Democrats had to bribe some of their own members in the Senate to get the thing passed in the first place, I’d hardly call Obamacare legislation “passed by a strong majority of a democratically elected Congress” (not that the number of “yes” votes matters to a law’s constitutionality).

Obama noted that for years, conservatives had been arguing that the ‘unelected’ Supreme Court should not adopt an activist approach by making rather than interpreting law, and held up the health legislation as an example.

I agree.  Activist judges suck.  But overturning Obamacare because the mandate is an unprecedented overreach of the federal government wouldn’t constitute “activism.”  In other words, deciding that forcing an American citizen to buy something doesn’t constitute “regulating interstate commerce” isn’t exactly crazy.  In fact, as I eluded to earlier, the only way the mandate could be upheld is if the Court decides “regulate” and “activity” actually mean the exact opposite.  Don’t get me wrong…it wouldn’t shock me if the Court performed such a manipulation of the English language, but its choosing not to do so certainly wouldn’t constitute radical activism.

‘I think it’s important…to remind people that this is not an abstract argument,’ Obama said.

‘The law that’s already in place has already given 2.5 million young people health care that wouldn’t otherwise have it.

‘There are tens of thousands of adults with preexisting conditions who have health care right now because of this law.’

In a courtroom, the foregoing is what’s called “irrelevant.”  I’m sure my life would be much more enjoyable if Congress passed a law requiring me to buy a helicopter, and then provided me the money if I couldn’t afford it; but the satisfaction of laughing at the losers stuck in traffic while I sip champagne in my underwear doesn’t make it constitutional.

It should be noted that Barry’s rant against the Supreme Court is just another example of his dictatorial dreams.  Who can forget the fits he still throws when Congress doesn’t give him what he wants?  And just as he has done in response to Congress’s alleged “failure to act,” (giving unelected agencies like the EPA and FDA truly unprecedented power, for example), I’m predicting Barry tries to do something extreme if the Court overturns Obamacare.  Packing the Courts, a la FDR?  Something else?  We’ll have to wait and see.

**UPDATE**

The Fifth Circuit today, while hearing a separate challenge to Obamacare, revealed that it reads this very blog as part of its preparation for important oral arguments.

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

Obviously a Fifth Circuit judge isn’t going to go on the record saying he or she relies upon a blog to provide pertinent legal background, but it’s obvious, right?  Didn’t I already point out that the Supreme Court has stricken unconstitutional legislation before?  Who else can provide this kind of legal research?  The president himself isn’t even aware, and he used to be a law professor!

Obvious questions remain: Will the Justice Department respond?  Will Eric Holder find the time between running guns to Mexico and racially profiling nuns (I made up the latter)?  Will Barry write the letter himself, in purple crayon (the most diverse color)?  WILL THIS BLOG FINALLY GET THE CREDIT IT DESERVES?

WhiteHouse.Gov Blogger Knows Just Enough to be Dangerous

Looks like a great idea.

Why would the White House, if it was so certain about its position on the constitutionality of the healthcare bill, have Stephanie Cutter, Assistant to the President for Special Projects (huh?) blog about the ruling in Virginia that I wrote about here yesterday? I’m not sure, but reading Ms. Cutter’s post is similar to listening to progressive talk radio; it’s full of over-generalized statements of certainty with no underlying support.

Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government.

That’s the Obama Administration’s shout-out to those annoying courts.  How dare they function as the third branch of government?  Who do they think they are evaluating legislation for its constitutionality?  Stupid Constitution.

Today’s decision merely said that the Virginia Attorney General has standing to challenge the lawsuit – which means that the court has jurisdiction to hear further arguments.

The assertion that the court merely ruled that the Virginia Attorney General has standing to challenge the legislation (not the lawsuit, as Cutter incorrectly states) is what we, in the fancy, smarty-pants legal world refer to as a lie.  Standing was only one basis for the government’s motion to dismiss Virginia’s complaint.  A second, and far more important reason, was the government’s assertion that Virginia didn’t state a cause of action upon which relief could be granted.   In other words, the federal government argued that Virginia’s complaint failed, as a matter of law, because Congress could clearly do what it was trying to do.  The court, rightfully so, said it isn’t clear that Congress can do what it is trying to do, i.e., force citizens to purchase a product on the private market or face a penalty.

The fact is, all of this liberal meme about how the healthcare law being supported by long-standing and well-established legal precedents is complete garbage.  Ask any person making this assertion to provide one such example of Supreme Court precedent and you know what you’ll get?  Crickets.  That’s because there isn’t any.

Now that this preliminary stage has ended, the government fully expects to prevail on the merits.   The Affordable Care Act falls well within Congress’s power to regulate under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.   As President Reagan’s Solicitor General Charles Fried recently wrote, ‘the health care law’s enemies have no ally in the Constitution.’

Sigh.  Well if a Reagan Solicitor General who is a Harvard law professor thinks so then it must be true!  Look, contrary to what many like to say nowadays, Reagan was not some conservative god.  Yes, he was better than our last four presidents (and certainly the mental midget that came immediately before him), but is that really saying much?  Simply put, Charles Fried is an unabashed Obama supporter, and the arguments he sets forth in his Boston Globe Op-Ed make me think I could be a professor at Harvard.  Fried’s absolutely certain that Congress can force people to buy health insurance because it can regulate interstate commerce.  Unfortunately, he jumps right over the fact that telling someone that they can’t sell something is a lot different then forcing them to buy something.  It must be his Harvard intelligence.

After all, over 70 years of settled law is on the side of the Affordable Care Act.

Where?  Can anyone tell me where?  Look, I’m aware that the Supreme Court has rarely limited Congress’s authority under the commerce clause.  But all of those cases share one thing in common: they involve Congress regulating an economic activity, not compelling people to take part in an economic activity.  The Supreme Court may go along with the Obama Administration on this one, but it’ll have to use some serious White-Out on Webster’s dictionary to do it.

The remaining portion of the White House blog doesn’t analyze the law.  It explains why the mandatory buy-in is necessary for the healthcare law to work.  That’s mostly window dressing as far as the case goes.  The central issue is whether Congress has the constitutional authority under the commerce clause to compel people to purchase insurance, and if they don’t, to penalize them.  That’s it.  Considering the fact that the current Administration and its cohorts believe the healthcare law is so clearly constitutional, it’s more than a little disingenuous to call the Virginia court’s denial of their motion to dismiss due to a lack of such clarity just a procedural step.

And Stephanie Cutter should stick to Special Projects.

Obamacare Challenge Still Alive in Virginia

Ah checks and balances.  Like many states throughout this nation, Virginia filed an action challenging the constitutionality of Obamacare.  Specifically, the action challenged whether the requirement that everyone purchase health insurance was appropriate.  The federal government recently filed a motion to dismiss the complaint, basically arguing that the mandate constituted a tax, and therefore, could be levied by Congress.  This argument made sense…if you’re either retarded or a lawyer.  Anyone with a little bit of common sense and a fifth grade grasp of the english language recognizes the difference between a tax and a mandate to purchase a product on the private market.  Well, I’m glad to say that a Virginia judge proved he’s neither retarded nor a lawyer.

‘The congressional enactment under review — the Minimum Essential Coverage Provision — literally forges new ground and extends (the U.S. Constitution’s) Commerce Clause powers beyond its current high watermark,’ [Judge] Hudson said in a 32-page ruling.

I’m not going to lie; I feel a little vindicated here.  I know, I know, it’s just one judge and the matter still needs to go to trial, but at least Judge Hudson agrees with me that Obamacare’s mandate is unprecedented.  I’ve heard from some people for months that it’s just another tax or it’s clearly within Congress’s powers under the Commerce Clause.  Well, it appears as though I’m not the only one who thinks Congress has ventured into uncharted waters here.

Health and Human Services Secretary Kathleen Sebelius said the ruling rejecting the Obama administration’s motion to dismiss the case was a procedural step and that the passage of the healthcare reform law has ‘full constitutional backing.’

“Full constitutional backing?”  Well that’s a relief.  And no Ms. Sebelius, the denial wasn’t simply a procedural step.  In fact, I’ll go so far as to say it means the Virginia court will deem the law unconstitutional.  That’s just my gut talking though, so we’ll see.  In any event, I’ll be shocked if this issue is not ultimately taken up by the Supreme Court at some point.

Now, why does this matter?  It’s only one provision you say?  Well, it matters because without the mandate, Obamacare is dead.  Without everyone being required to purchase insurance, Obamacare will be even more expensive than it is now (yes it is possible), which wouldn’t fly with a Congress that was barely able to pass the monstrosity in its current form and is looking likely to move a lot more to the right come November.

All That Was Needed Was The Collection Plate

A School Prays for Help

Let’s see…no prayer in school, no moment of silence in school, no recognition that Christmas and Easter are Christian holidays celebrating the birth and resurrection of Christ, respectively, no Ten Commandments, etc.  Apparently the Supreme Court concocted “separation between church and state” is impenetrable to all things except one: money.  The holy rollers and their Jesus lovin’ ways are A-o.k. when they bring the collection plate.  Hypocrisy much?

LAKELAND, Fla.—When his budget for pencils, paper, and other essential supplies was cut by a third this school year, the principal of Combee Elementary School worried children would suffer.

Then, a local church stepped in and “adopted” the school. The First Baptist Church at the Mall stocked a resource room with $5,000 worth of supplies. It now caters spaghetti dinners at evening school events, buys sneakers for poor students, and sends in math and English tutors.

Churches hosting spaghetti dinners at school events?  Religious sneakers for poor students?  What if those tricky church people sneak a page into the math book that reads, “Math: it only makes sense because I created it.  Signed, God.”?  Who’s going to protect the innocent children from God then?  More importantly, where are all the libs crying about the church potentially ruining their future voting base?  Oh, there they are.

In Florida, meanwhile, alliances between churches and schools are igniting debate about church-state boundaries. ”I have great concerns about churches who see public schools as, well, what shall I say, church membership,” says Harry Parrott, a retired Baptist minister who runs a local chapter of Americans United for Separation of Church and State.

Wait a minute, you’re a Christian?  You’re not one of those crazy liberals, are you?  You’re just a retired pastor who thinks he’s a Constitutional Law expert.  Don’t you know that the Constitution doesn’t actually mention the alleged Separation?  Apparently your run of the mill libs don’t have a problem with Christian money in the public schools…just retired pastors.  Wonders never cease.

All kidding aside, I think this is a good idea.  Moreover, it appears that private funding of public schools is just getting started.

Public schools are making some of the boldest moves. Traditionally, private donations—including foundation grants and money raised at bake sales—have amounted to just 1% of K-12 funding nationally, according to the Education Commission of the States, a nonprofit think tank. The money generally has been spent on extras like new computers or playground upgrades.

Now, it’s for essentials. “They’re asking for simple things: books for the classroom, art supplies, paper,” says Sean McGraw, executive director of a nonprofit foundation that supports public schools in wealthy Douglas County, Colo.

Why is this a good idea?  It (hopefully) starts the ball of common sense rolling.  Simply put, the government shouldn’t be educating our children.  They’re doing a crappy job, and our schools have become slaves to liberal philosophy and teachers’ unions.  Also, I’d like my astronomically high property taxes back please.  I’m hopeful that private funding of public schools continues, and eventually, cuts out public funding all together.  Let’s face it: All the government knows how to do is abort children; it knows nothing about raising or educating them.

Supreme Court watch: Graham v. Florida

In the matter of Graham v. Florida, the Supreme Court considered whether a state can sentence a juvenile to life in prison, with no possibility of parole, when the crime convicted of did not involve homicide.  In a decision that overruled the law of 37 states, the majority found that sentencing such an individual to life in prison without the possibility of parole violated the Eighth Amendment’s prohibition against Cruel and Unusual Punishment.  In doing so, Justice Anthony Kennedy, writing for the majority, made clear that, at the end of the day, their opinion that the sentence was too harsh was all that was needed to trump the rights of 37 states.

Facts

Terrance Graham was 16 in 2003, when he, and two other youths, attempted to rob a barbeque restaurant.  During the commission of the crime, one of the youths struck the manager in the back of head with a metal bar (he required stitches).  The youths then ran away, and Graham was arrested.  He was subsequently charged as an adult with armed burglary with assault or battery, a first-degree felony carrying a maximum penalty of life imprisonment without the possibility of parole, and attempted armed-robbery, a second-degree felony carrying a maximum penalty of 15 years’ imprisonment.

Graham pleaded guilty to both counts, and entered into a plea agreement.  He also wrote a letter to the court, stating that he would not get in trouble again.  The trial court accepted the plea agreement. The court withheld adjudication of guilt as to both charges and sentenced Graham to concurrent 3-year terms of probation. Graham was required to spend the first 12 months of his probation in the county jail, but he received credit for the time he had served awaiting trial, and was released on June 25, 2004.

Less than six months later, Graham was again arrested, this time for allegedly participating in a home invasion robbery.  During the invasion, Graham held a gun to the homeowner’s chest while his accomplices ransacked the home for thirty minutes.  Later that same evening, the three allegedly attempted a second robbery.  During the robbery, one of Graham’s accomplices was shot.  As Graham was dropping him off at the hospital, a police officer told Graham to pull over.  Graham then proceeded to lead a high speed chase, until he crashed into a telephone pole.  While Graham denied his involvement in the robberies, he admitted that he violated his probation.  The court sentenced Graham to life in prison.  Florida does not allow for parole.  Graham was 17 when he was convicted.

Law

The case made its way to the U.S. Supreme Court, which reversed the trial court’s decision, finding that life without parole, for a juvenile who hadn’t killed anyone, constituted cruel and unusual punishment.  The Court’s decision is interesting because its cited legal support is seemingly contradicted by other portions of the case.  For example, the Court began its analysis by examining the relevant “national consensus.”  In other words, what is the majority of the nation doing?  Well, according to the Court, 37 states, the District of Columbia, and Federal law all allow for life without parole for a juvenile, involving a non-homicide crime.  Apparently the Court didn’t like that answer, because, after stating the national consensus was relevant, it then completely disregarded it.  Instead, the Court inexplicably looked to how many juveniles were currently in prison without the opportunity of parole, for non-homicide crimes.  The answer,

According to a recent study, nationwide there are only 109 juvenile offenders serving sentences of life without parole for nonhomicide offenses.

The Court presumably used the small number to support the notion that actually sentencing juveniles to life in prison without parole for non-homicide crimes wasn’t the national consensus.  I find this rationale odd for two reasons.  First, by this logic, practically every crime would not fall within the “national consensus,” because there are far fewer people in prison then there in the population generally; and there are likely far fewer murderers in prison then there are drug-dealers.  Second, the small number actually offers support for the conviction as a practical matter, because it evidences restraint on the part of courts.  In other words, Graham’s sentence is the exception, not the rule.

After seemingly satisfying itself with the outcome of the “national consensus” argument, the Court moved on to the “life without parole for a juvenile who didn’t kill anybody is really mean” argument.

[the sentence] “means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.”

I’m deeply moved by the Court’s sentiment.

Next, the Court talks about the importance of penal goals for a sentence.  The Court runs down four recognized goals of punishment: retribution, deterrence, incapacitation, and rehabilitation.  Which goal is chosen is “within a legislature’s discretion,” and any one of these can provide legitimate justification for a sentence.  The Court runs through all four, but the analysis that caught my eye was incapacitation.  The Court stated,

Incapacitation, a third legitimate reason for imprisonment, does not justify the life without parole sentence in question here. Recidivism is a serious risk to public safety, and so incapacitation is an important goal. (citation omitted) (statistics show 67 percent of former inmates released from state prisons are charged with at least one serious new crime within three years).

After providing actual facts to support its finding that incapacitation is a legitimate goal (high recidivism rate), the Court puts on its “let’s make some arbitrary law” hat.

But while incapacitation may be a legitimate penological goal sufficient to justify life without parole in other contexts, it is inadequate to justify that punishment for juveniles who did not commit homicide. To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible.

Apparently the majority, who very likely never laid eyes on Graham, did not think he was incorrigible.  The Court then agreed that Graham “deserved to be separated from society for some time in order to prevent what the trial court described as an “escalating pattern of criminal conduct…” but…

…it does not follow that he would be a risk to society for the rest of his life.  A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment ’s rule against disproportionate sentences be a nullity.

After reading the Court’s opinion up until this point, I’m wondering what “other considerations” are overriding Florida’s right to throw away the key.

What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.

Oh, there’s the overriding consideration.  The arbitrary determination that criminal “like Graham” should be given a chance at parole.  This case is the very definition of judicial activism.  The sentencing of Graham is a state’s rights issue, unless it violates the Eighth Amendment.  Nowhere in the Constitution does it say life without parole for a juvenile who didn’t kill anyone constituted cruel and unusual punishment.  Thus, the Court made it up.  Even more egregious however, was the Court’s failure to apply its own analysis for what constitutes cruel and unusual punishment.  Instead of giving some deference to the sentencing judge, the majority, from its ivory tower, decided to manufacture some Constitutional law.

Any liberal complaining about the conservative court should be given this case.

Does it matter if Kagan’s gay?

Well, I wasn’t going to discuss this, since everybody else is, but I’ll bite.  Does it matter if Supreme Court nominee Elena Kagan is gay?  Well, the obvious answer is yes…if you’re a liberal.  Let’s face it, there’s only one party that actually pays attention to the color of someone’s skin, their gender, or their sexual orientation; and it’s not the so-called racist, sexist, homophobic old white men who tend to vote republican.  It’s the party of the diverse [victim].  Those that pride themselves on being tolerant and progressive.  Case in point: is it just coincidence that both of Barack Obama’s nominees have been women?  That one was a Latina?  Hell, I’ll be shocked if Ms. Kagan is just a run of the mill straight white woman with a questionable haircut.

As far as qualifications go, Ms. Kagan seems fine.  There have been other good justices that weren’t judges before.  In fact, speaking as a conservative, Barry could have done a lot worse.  The only way Ms. Kagan’s sexual orientation could actually matter is if it affects her rulings.  A judge is supposed to be objective, unsympathetic, and not directed by his or her life experiences.  Focus on the law, and apply it to the facts.  Nothing more, nothing less.  In my opinion, the minute Justice Sotomayer opined that a wise latina judge would make a better decision than a white male judge, she disqualified herself.  She asserted that one judge would make a better decision than another judge, simply because of background.  No objectivity.  No rule of law.  Speaking as an attorney, that’s complete nonsense.

Now, I haven’t heard Ms. Kagan say anything approaching what Justice Sotomayer said, but it’s still early.  Does she fit the mold of an empathetic judge, as B.O. claimed he wanted in a Supreme Court justice?  I would have to assume so, since he nominated her.  The only question I have is, who will she empathize with?  That’s what needs to be answered by Ms. Kagan.

Softball Players All Gay?

Softball question

In an amazing turn of events, gay and lesbian rights groups, in an apparent attempt to defend Supreme Court nominee Elena Kagan, have revealed their own stereotype: that all softball players are gay.  A picture of Ms. Kagan playing softball during her law school days has sparked sharp retribution from some groups,

[The photo] clearly is an allusion to her being gay. It’s just too easy a punch line, said Cathy Renna, a former spokesperson for the Gay and Lesbian Alliance Against Defamation who is now a consultant.

While some argue about whether Ms. Kagan is gay, and why it may or may not matter, I’m more interested in the effect such conversations have on straight softball players.  Just because one plays softball doesn’t make them gay, does it?  Of course not.  In fact, I know several ex-softball players that are not only married to a member of the opposite sex, but even have children!

Now, I would expect this kind of stereotype from the conservative country-club crowd; you know, the guys who play golf all day and then playfully snap each other with towels in the locker room afterward.  But I am a little surprised at the intolerance coming from the gay and lesbian groups.  Time to look in the mirror ladies.  Straight softball players have rights too.