Supreme Court Shuns Us Common Folk

by Nat Hentoff

This article appeared on Cato.org on December 20, 2011. 

I have often criticized the Supreme Court for continually refusing to allow TV cameras in its courtroom. That way, We The People can see and hear — during oral arguments before the lofty nine with lifetime seats — how they reach judgments that often affect our lives for years to come. Now that our highest court has decided to hear arguments on Obamacare — which can indeed impact our health care and, for some of us, how long we are allowed to make medical decisions — many Americans are anxious to get a sense of how the justices will arrive at their vote before the end of this term.

As Brian Lamb, chairman of C-SPAN, always eager to cover these vital proceedings, says: "If you can't do this in public and you're doing the public's business, then something is wrong with this picture" ("Supreme Court TV? Nice Idea, but Still Not Likely," Adam Liptak, The New York Times, Nov. 28).
I have been in the court's small press gallery in its very limited-seating courtroom. I have witnessed how these individuals in judicial robes will ultimately decide cases by seeing and hearing how they often pointedly disagree with one another as they ask questions of the lawyers before them.
And it is enlightening to get a sense of their personalities, their characters. How open are their minds to rational dissents from their long-held inner conclusions during these fateful high-court procedures?
Over the years, some of the justices have claimed that the public just isn't equipped to understand the complexities of these cases. Justice Antonin Scalia, a very active and emotional participant in the oral arguments, has lectured us commonplace citizens:
"Law is a specialized field, fully comprehensible only to the expert" (Cameras in the Courtroom: Television and the Pursuit of Justice, by Marjorie Cohn and David Dow, McFarland, 2011).
How many of us fellow citizens do you know well enough, Your Excellency, to arrogantly decide that we're too dumb to understand the basic rules of law in a self-governing constitutional republic?
You, Mr. Justice, are indeed an expert on the Constitution. So please tell us where in our founding document — and in James Madison's detailed notes on the extensive debates in the 1787 Constitutional Convention — you and your colleagues find summary justification for excluding us from these crucial deliberations in our court?
Years ago, during a televised debate on the PBS series "The Constitution: That Delicate Balance," moderated by Fred Friendly, who was Edward R. Murrow's former producer and close colleague, I was on a panel that included — I am not jiving you — Justice Scalia.
Should I have kept my mouth shut in questioning this panelist so far above my rank?
In their valuable book on "Cameras in the Courtroom" — which I hope the publisher will send to teachers and department heads for use in classrooms — Cohn and Dow make this rather scalding point that might embarrass some of the justices who bar us from their oral arguments:
"Every ... justice is appointed to the bench for life, immunized from public pressures. They don't need television exposure to keep their jobs. They can enjoy power with near-anonymity. ...
"Why take chances with an impartial electronic witness that can beam your every slip-up, every excess, to thousands or millions of taxpaying spectators, all in the name of giving them greater access to their own court system?"
The late Justice William Brennan told me in his chambers that he disagreed with the majority of his then colleagues and welcomed the TV cameras in the courtroom. The reason, he noted, was that many Americans knew very little of how the court works, or how deeply widespread some of its rulings can be.
At the time, relatively few newspapers or radio and television stations covered the court with engaging depth and clarity. When a case first surfaced that appeared to have major importance, Justice Brennan wanted the press to report on it from the start so that Americans would have a full understanding of our legal procedures from the beginning.
That hasn't happened, of course. And with print news sources increasingly reduced for cost reasons and so much cable news devoted to inflammable opinion rather than legal analysis, even vital high-court cases are not reported with enough lucidity. So Americans are getting only a brief, impressionistic understanding of the consequences of the justices' decision.
Contrary to Justice Scalia, that's not the fault of those of us who do want to be knowledgeable members of this self-governing nation.
Thomas Jefferson often warned future Americans that the ultimate guardians of our individual liberties would be us, the people. But we'd have to know what was going on — especially at the Supreme Court:
"There is no danger I apprehend so much," Jefferson said, "as the consolidation of our government by the noiseless ... instrumentality of the Supreme Court" (my column, "The Invisible Supreme Court," Jewish World Review, Dec. 2, 2003).
There was a poll taken years ago that asked Americans if they knew who the justices were. Only 5 percent at the time even knew of Justice Brennan. With a grim chuckle Brennan said to me, "Harry Blackmun got only 1 percent."
Right now, the historic Obama case is so important that the high court is devoting three days to oral arguments ("Supreme Court to Hear Health Care Case in Late March," Adam Liptak, The New York Times, Dec. 19).
But we citizens are forbidden to attend.

Obamacare Argument Post-Mortem

Posted by Ilya Shapiro at http://www.cato-at-liberty.org/obamacare-argument-post-mortem/


Now that I’ve woken from the first full night’s sleep since the Supreme Court’s three-day Obamacare marathon began, I can share my thoughts on how the argument went, in case you haven’t seen my first and second days’ reports for the Daily Caller:

1. The Anti-Injunction Act: On an argument day that can best be described as the calm before the storm, it quickly became clear that the Supreme Court would reach the constitutional issues everyone cares about. That is, regardless of how the justices resolve the hyper-technical issue of whether the Anti-Injunction Act is “jurisdictional,” this law — which prevents people from challenging taxes before they’re assessed or collected — does not apply to the Obamacare litigation. There were also hints that the Court was skeptical of the government’s backup merits argument that the individual mandate was justified under the Constitution’s taxing power. Perhaps the only surprising aspect of the hearing was how “cold” the bench was; it’s rare for the justices to allow advocates to speak at length without interruption, but that’s what they generally did today. That’s yet another indication that the Court will get past the AIA appetizer to the constitutional entree.
2. The individual mandate: From Justice Kennedy’s noting that the government is fundamentally transforming the relationship of the individual to the government, to Chief Justice Roberts’s concern that “all bets are off” if Congress can enact economic mandates, to Justice Alito’s invocation of a hypothetical burial-insurance mandate, to Justice Scalia’s focusing on the “proper” prong of the Necessary and Proper Clause – and grimacing throughout the solicitor general’s argument – it was a good day for those challenging the individual mandate.  Paul Clement and Mike Carvin, who argued for the plaintiffs, did a masterful job on that score, showing again and again the unprecedented and limitless nature of the government’s assertion of federal power.  The solicitor general meanwhile, had a shaky opening and never could quite articulate the limiting principle to the government’s theory that at least four justices (and presumably the silent Justice Thomas) were seeking.  While trying to predict Supreme Court decisions is a fool’s game, the wise should take note that if Tuesday’s argument is any indication, Obamacare is in constitutional trouble.
3. Severability: The most likely ruling on severability is that all of Obamacare will fall along with its fatally flawed individual mandate.  While such a result would be legally correct, it would still be stunning.  Perhaps even more remarkable is that the severability argument proceeded under the general assumption that the mandate would indeed be struck down.  This was not a mere hypothetical situation about which the justices speculated, but rather a very real, even probable, event.  There’s still a possibility that a “third way” will develop between the government’s position (mandate plus “guaranteed issue” and “community rating”) and that of the challengers (the whole law) — perhaps Titles I and II, as Justices Breyer and Alito mused (and as Cato’s brief detailed) — but the only untenable position would be to sever the mandate completely from a national regulatory scheme that obviously wouldn’t work without it.
4. Medicaid expansion/coercion: The justices don’t want to reach the factually complicated and legally thorny Medicaid issue.  That may be another marginal factor pushing one or more of them to strike down all of Obamacare under a straightforward severability analysis and leave the “spending clause coercion” issue for another day.  This was perhaps the most difficult of the four issues to predict, and having heard argument doesn’t really make that task easier.  A majority of the Court was troubled by the government’s “your money or your life” stance, but it’s not clear what standard can be applied to distinguish coercion from mere inducements.  Then again, if this isn’t federal coercion of the states, I’m not sure what is.

General post-argument reaction: All of my pre-argument intuitions were confirmed, and then some:  The Court will easily get past the AIA, probably strike down the individual mandate, more likely than not taking with it all or most of the rest of the law (including the Medicaid expansion).  Still, it was breathtaking to be in the courtroom to see the Chief Justice and Justices Scalia, Kennedy, and Alito all on the same page.  (For example, when Justice Kennedy’s first question during yesterday’s hearing was, “Can you create commerce in order to regulate it?” — a question hostile to the government — my heart began racing.)  Much as I’d love to think that my briefs helped get them there even a little bit, ultimately it’s the strength of the constitutional claims and the weakness of the government’s positions that prevailed — or will prevail if the opinions that come down in three months follow along the lines set by this week’s arguments.  They may not of course — trying to predict the Supreme Court isn’t a science—but I’m coming out of this week feeling very good.
Finally, for links to all of Cato’s briefs and my last series of op-eds on the Obamacare litigation, see Monday’s blog post.

What Does Being American Mean Now?

by Nat Hentoff

This article appeared on Cato.org on December 13, 2011. 

Soon after George Washington died, Thomas Jefferson recalled that our first president often told him "he considered the new Constitution as an experiment on ... what dose of liberty man could be trusted for his own good" ("The Meaning of Independence," Edmund S. Morgan, University of Virginia Press).

Our Constitution's Bill of Rights guaranteed our individual liberties against the government. How's it doing?
I remembered Washington's worry about how much liberty we could protect during the 11th debate between Republican candidates for the presidency when former House Speaker Newt Gingrich said of the Patriot Act (rushed so quickly through Congress after 9/11): "I'm not aware of any specific change it needs."
As has become clear, that law began the systematic attack on vital parts of the Bill of Rights by President George W. Bush and Vice President Dick Cheney, further expended by President Barack Obama. In a roaring response to Gingrich, Rep. Ron Paul reminded him: "Our early founders were very clear. They said, 'Don't be willing to sacrifice liberty for security.' Today it seems too easy that our government and our Congress is so willing to give up our liberties for our security" ("Immigration, Racial Profiling, Patriot Act Divide Republicans at GOP Debate," ABC News.com, Nov. 22).
Very easily, by a vote of 93-7, the Senate voted for amendments to the National Defense Authorization Act (Associated Press, Minneapolis Star Tribune, Dec. 2) "that would require the military to hold suspected terrorists linked to al-Qaida or its affiliates, even those captured on U.S. soil, and detain some indefinitely without trial."
And, despite George Washington's warning, this legislation also would "deny suspected terrorists, even U.S. citizens seized within the (U.S.) nation's borders, the right to trial and subject them to indefinite detention." This is America?
The 93-7 vote defied a threat of a presidential veto by Barack Obama who, since taking office, has been plundering the Constitution while also advocating preventive detention without trial. But this time he and fellow opponents, FBI Director Robert Mueller and Defense Secretary Leon Panetta, objected to giving the military such reigning authority over cases involving terrorism suspects while also dominating intelligence gathering ("Hobbling The Fight Against Terrorism," The New York Times, Dec. 7).
But, as the AP also reported, the Senate then, in a face-saving move, "backed 99-1, a measure that said nothing in the bill changes current law relating to the detention of U.S. citizens and legal aliens."
However, don't forget that 93 senators — like their predecessors right after 9/11 who zoomed through the Patriot Act — would have also abolished a series of fundamental due process rights of American citizens! Nor has Obama abandoned preventive detention as ordered by himself.
The Patriot Act itself passed the Senate 98-1. The only dissenter was Sen. Russ Feingold, D-Wis., who, on Oct. 11, 2001, on the floor of the Senate, said:
"There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government was entitled to open your mail, eavesdrop on your phone conversations, or intercept your email communications ... the government would probably discover and arrest more terrorists or would-be terrorists, just as it would find more lawbreakers generally" (my book, The War on The Bill of Rights and The Gathering Resistance, Seven Stories Press).
But, this lonely patriot continued, "It wouldn't be a country for which we could, in good conscience, ask our young people to fight and die. In short, that country wouldn't be America."
So here we are now when our country is not a police state — I won't be arrested for writing this — but where it can authorize the FBI to search your home without first going to a judge, and where it can open a "threat assessment" (a search) on anyone without getting a warrant. And under Bush-Cheney and Obama, the government can listen in on your phone conversations, look into your email as well as — under Obama — track you through such digital social media as Facebook and Twitter.
Before Feingold addressed the citizenry (all by himself) in the Senate, then-Senate Majority Leader Tom Daschle had instructed the Democratic caucus not to join Feingold lest the Democratic Party would lose elections for being soft on terrorism. This was patriotism?
Through the rest of his Senate career, Feingold, a true patriot, continually tried to bring back the Bill of Rights and the separation of powers into our lives. He had only limited success, but in the 2010 elections he lost his Senate seat during the Republicans' national surge.
In the present Congress, Rep. Paul is not the only defender of what we used to tell other countries were our fundamental values, but they are not a majority. One of them is his son, Sen. Rand Paul, R-Ky., who, during the debate on the Defense Authorization bill, opposed an amendment Sen. John McCain, R-Ariz., was supporting that would have permitted that American citizens suspected of terrorism would be denied a civilian trial.
"Should we err today," Rand Paul told his colleagues, "and remove some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists have won" (The Hill.com, Nov. 29).
They haven't by any means. Both at home and in actual war zones, there are Americans who have not caved in. But Rand Paul is absolutely correct that "detaining American citizens without a court trial is not American."
With the 2012 elections nearing, listen carefully if any candidate for Congress or the presidency agrees with Russ Feingold and Rand Paul — or even mentions the subject.

Obamacare Gives Congress License to Micromanage Every Facet of Our Lives

by Timothy Sandefur at http://www.cato.org/publications/commentary/obamacare-gives-congress-license-micromanage-every-facet-our-lives

The US Supreme Court today heard arguments today on what may be the most important constitutional case in a generation. Some of the nation’s top attorneys are debating the Patient Protection and Affordable Care Act, often known as Obamacare.

The eventual ruling could chart the boundaries of federal power for generations to come — not only for health care, but across the policy spectrum.

A major focus of the Supreme Court hearings is the individual mandate — the law’s requirement that almost all Americans who aren’t covered by employers must purchase a health-care plan, whether they want to or not.

The plaintiffs — including 26 states as well as individuals and businesses — argue that Congress has no authority to force people to buy insurance. Most Americans agree: A recent Gallup poll found that 72 percent — including 56 percent of Democrats – consider the mandate unconstitutional.


Obama administration attorneys counter that Article I, Section 8 of the Constitution, known as “the commerce clause” — giving Congress power to “regulate commerce among the several states” — is more than expansive enough to validate the mandate.

They rely on a list of Supreme Court precedents that stretch the definition of “interstate commerce” pretty far.

In the 1940s, the court allowed Congress to punish a farmer for growing wheat on his own land for his own use, on the theory that wheat prices would be affected if everyone did that. In the 1960s, the court classified civil rights laws as “regulations of commerce” even when they involved businesses that did practically no interstate business. And in 2005, the court ruled that Congress could prohibit someone from growing marijuana in her yard for her personal medical use, because federal laws against drugs are a kind of economic regulation.

Still, the court has never held that the federal government may compel people to participate in commerce. And this is what makes the individual mandate unprecedented: Never before has Congress presumed to order average Americans to purchase a good or a service in the marketplace.

Simply from the standpoint of semantics, the law’s defenders face a challenge. As ordinarily understood, the word, “regulate,” implies rules for activity that people have freely chosen to engage in (running a business, for instance). The word doesn’t imply forcing people, say, to start a business in the first place.

Likewise, “commerce” implies economic activity — but someone who fails to buy health insurance is not engaged in economic activity.

Beyond these disputes over definitions lies a fundamental question about the extent of federal power: If Congress can force us to buy health insurance, what can’t it order us to buy?

Practically any individual decision to buy something, or not to do so, has some theoretical effect on the economy as a whole. And if that’s all that’s needed to justify federal intrusion, limitless dictates could be imagined. For example, what’s to stop Congress from forcing us to buy spa memberships — or electric cars — in the name of making us healthier, or more fuel-efficient, consumers?

As Federal District Court Judge Henry Hudson, who ruled in favor of Virginia’s challenge to the individual mandate in December 2012, put it: The argument for the mandate’s constitutionality “lacks logical limitation.”
Remarkably, the Obama administration has never offered a principled explanation of how to square the mandate with constitutional principles of limited federal government.

Instead, Americans are offered more semantic games. We’re told the mandate only moves forward a purchase that would have happened in any case. People will now pay up-front for health care that they would have eventually paid for, on their own, when they received it.

But again, this is a rationale without “logical limitation.” Some version of this argument could be offered for practically any kind of forced purchase. If Congress commands you to buy something because lawmakers deem it “good for you,” then almost by definition, it’s something you might have bought on your own, eventually — so, voila, the mandate isn’t really a mandate at all!

Bottom line: Upholding the individual mandate would set a treacherous precedent by licensing Congress to start micromanaging every facet of our lives.

Striking down the mandate, on the other hand, could pressure Congress to finally get creative about reforming America’s ailing health care delivery system. With the mandate off the table, Congress could be forced to de-emphasize rigid bureaucratic prescriptions in favor of market-based reforms to expand competition and consumer choice.

So this case is not just a pulse check for constitutional principles of limited government. The health of health care could also be on the line.

King Newt Takes on the Judges

by Roger Pilon

This article appeared in The Philadelphia Inquirer on December 29, 2011. 

In 1608, King James I announced to the judges of England that because they were merely his delegates, he was entitled to decide cases himself. They responded that no king since the Norman conquest had assumed that power. Lord Coke, chief judge of the Court of Common Pleas, added that "his Majesty was not learned in the laws of his realm, ... which require long study and experience, before a man can attain to the cognizance of them."

Greatly offended, James said this treasonously placed the king beneath the law. Coke answered: "The king is under no man, yet he is under God and the law, for the law makes the king."
Newt Gingrich, the sometime historian and would-be Republican presidential nominee, would do well to heed Coke's admonition. His "21st-Century Contract with America" launches a frontal assault on the nation's courts, particularly on "judicial supremacy" — the idea that the courts ultimately determine what the law is.
On CBS's Face the Nation, Gingrich told Bob Schieffer that as president, he would ignore court rulings he disagreed with (though only rarely, he added). Asked if President Obama could ignore a Supreme Court rejection of Obamacare, Gingrich said he could, but would risk a rebuke by Congress. "Here's the key: It's always two out of three," Gingrich said. "If the president and the Congress say the court is wrong, in the end, the court would lose."
Really? One would be hard-pressed to find that in the Constitution. In fact, when the court finds a law unconstitutional, it's almost always been approved by two branches out of three (the exception being the rare cases when Congress overrides a presidential veto): Congress passes bills, and the president signs them. According to Gingrich, then, the two political branches could ignore the court almost every time it rules against a law.
The founders' cardinal achievement was the establishment of a popular government under the rule of law, as spelled out in a written Constitution and enforced by an independent judiciary. Our courts haven't always done their job well, but they have been a beacon for other nations struggling to establish independent judiciaries.
Gingrich doesn't stop with ignoring court rulings he believes to be mistaken. As president, he says, he would also urge Congress to strip the courts of jurisdiction, call errant judges on the congressional carpet, impeach them, and even abolish whole circuits — all of which is breathtakingly un-American and also uninformed, but it resonated with many in the audience at the last Republican debate.
That's disturbing, because it reveals a fundamental misunderstanding of our system of government — one exhibited by Gingrich himself. He claims, for example, that since the New Deal, the judiciary's power has "increased exponentially" at the expense of the political branches. Yet Franklin Roosevelt accomplished exactly what Gingrich is calling for: His infamous 1937 threat to "pack" the Supreme Court with additional justices intimidated it into discovering new congressional powers and approving New Deal legislation.
Eventually, the court regained its voice, especially in civil rights decisions like Brown v. Board of Education and Cooper v. Aaron, the Little Rock school desegregation case in which the justices unanimously found that state officials couldn't "nullify" court rulings — an example of the "judicial supremacy" Gingrich rails against.
The courts' power to declare the law is hardly a recent American invention, as Gingrich seems to believe. It's implicit in a Constitution that vests "the judicial Power" in "one supreme Court." It was discussed expressly and at length in the Federalist Papers. And the court itself secured it in 1803, in Marbury v. Madison.
But Gingrich's distortions continue. Kelo v. New London, for example, in which the court upheld the eminent-domain transfer of a woman's home to a private developer, was an egregious misinterpretation of the Constitution's takings clause. But far from frustrating popular government, as Gingrich asserts, the court was actually upholding the political branches. And the Jeffersonian Republicans' 1802 abolition of the circuit judgeships created by an outgoing Federalist Congress — the episode on which Gingrich rests so much of his argument — was a brief historical anomaly, not a precedent for abolishing the entire Ninth Circuit Court of Appeals, as he has threatened.
In short, Gingrich is promoting flimflam constitutionalism — and dangerous nonsense besides.

Obamacare's Second Day at the Court Features Brilliant Advocacy, Cautious Optimism

by Ilya Shapiro at http://www.cato.org/publications/commentary/obamacares-second-day-court-features-brilliant-advocacy-cautious-optimism

Tuesday’s Supreme Court oral arguments, which focused on the individual health insurance mandate, began with pomp and ended with circumstantial evidence that the individual mandate is in constitutional jeopardy.

I won’t recap every nuance of the argument, but here’s a flavor of it and why I left the courtroom cautiously optimistic.

Even getting into the courtroom was a much harder ticket than it was the first day of arguments — at least for the savvy members of the Supreme Court bar, for whom there’s a separate line (which I have been using, thanks to the generous line-standing of Cato and Daily Caller interns).

Once in there, the room quickly filled with senators — I noted a quorum of the judiciary committee — congressmen, public officials (including Health & Human Services Secretary Kathleen Sebelius) and assorted other legal luminaries.

It was a veritable Washington who’s who. The politicians preened for the press, the press craned their necks to note the attendees for their coverage, and we bar members, even those of us who frequent the court, took in the spectacle. Something was different today: To paraphrase Joe Biden, this case was a big deal, and everyone knew it.

Solicitor General Donald Verrilli did not start well, enduring a nervous, awkward opening and then a barrage of questions picking apart the government’s position that it could require people to buy health insurance because everyone is already in the health care market, and because uncompensated care shifts costs onto taxpayers:

JUSTICE SCALIA: Why aren’t those problems that the Federal Government can address directly?
...
JUSTICE KENNEDY: Can you create commerce in order to regulate it?
...
CHIEF JUSTICE ROBERTS: So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?
...
JUSTICE ALITO: Do you think there is a market for burial services?... Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else. Isn’t that a very artificial way of talking about what somebody is doing?

By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Although you can’t hear it on the audio recording, the audience gasped.

Kennedy was supposed to be the swing vote — particularly given the criticism from Roberts, Scalia, and Alito — and here he was putting the burden on the government to describe the justification for a sweeping new power.

Moreover, Justice Scalia — whom many thought was in play in light of his concurring opinion in Raich v. Gonzalez, the 2005 medicinal marijuana case ratifying an expansive use of federal power under the Necessary and Proper Clause — was now firmly off the table. Among other lines of questioning, it was Scalia who raised the now-clichéd broccoli mandate and that, with respect to any law executing an enumerated power, “in addition to being necessary, it has to be proper.”

I watched Scalia closely throughout Verrilli’s argument: The constant scowling, grimacing, and just plain astonishment was striking.

The chief justice also turned out to disappoint those who thought his concurrence in United States v. Comstock — the last big Necessary and Proper Clause case, albeit not one involving commercial regulation — indicated an openness to uphold the mandate:

CHIEF JUSTICE ROBERTS: But once we say that there is a market and... as you would say, that people are already participating in it, it seems to me that we can’t say there are limitations on what Congress can do under its commerce power, just like in any other area — given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way.

Justice Alito was no better for the pro-Obamacare side, repeatedly asking the solicitor general to “express a limiting principle” to his operative legal theory. Here’s the answer he ultimately got:

GENERAL VERRILLI: First, with respect to the comprehensive scheme. When Congress is regulating — is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It’s like — it’s very much like Wickard [the 1942 wheat-farming case that defined the outermost limits of federal power under modern Commerce Clause jurisprudence] in that respect. Very much like Raich in that respect... Considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the — the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one’s entry into that market and what you will need when you enter that market is uncertain and when — when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.

I still don’t know what that all that means, other than that it seems to be a definition of health insurance that begs the question of why that’s a principled — as opposed to factual — distinction. As Scalia put it, “it’s a basis that explains why the government is doing this, but is it... a basis which shows that this is not going beyond what... the system of enumerated powers allows the government to do.”

In any event, Paul Clement was masterful — perhaps the best-ever argument by the nation’s best Supreme Court lawyer — and Mike Carvin was his typical hard-charging self. The states’ and private plaintiffs’ attorneys, respectively, thus showed again and again the unprecedented and limitless nature of the government’s assertion of federal power.

They took some heat, to be sure, from the four liberal justices, along with requests from Roberts to address some of the government’s points more directly, but nothing like what Verrilli faced.

The solicitor general simply failed to articulate the limiting principle to the government’s theory that at least four justices (and presumably the silent Justice Thomas) were seeking. This failure is shocking, because it was the “gotcha” question that any first-year law student would have known to expect.

That’s why news outlets, most notably CNN’s Jeffrey Toobin, were all saying the individual mandate was in trouble. While we should never read too much into oral arguments, the odds now remarkably favor a decision striking down Obamacare’s key component.

Who's to Blame for Washington Gridlock

by Jeffrey A. Miron

This article appeared on CNN.com on December 23, 2011. 

A last minute deal may have ended the standoff between Democrats and Republicans, but it is still hard to know whether to laugh or cry over this latest adventure in political theater.

The policy stalemate that preoccupied Washington in recent days was over whether to extend last year's reduction in the payroll tax from 6.2% to 4.2%. The House voted to extend it for one year and the Senate for two months, but neither chamber wanted to accept the other's bill.
The House GOP dropped its opposition to the Senate bill Thursday evening. But even if the House approves the short-term payroll tax cut extension Friday, Congress will likely have to revisit the issue before two months are out.
Despite the tragicomic aspects of the situation, we can identify the economic pros and cons of an extension, and we can use that to understand why the politics are so difficult.
Economists agree that tax cuts tend to stimulate the economy. This occurs in part because additional after-tax income spurs greater consumer spending, and in part because lower after-tax wage costs spur employer hiring. Neither impact is likely to be large in the current context because the cut is explicitly temporary.
Consumers will likely save much of any extra income, and firms will not hire many new workers if the after-tax cost is only lower for a short while.
Nevertheless, it is hard to see why either party would oppose the cut on strictly economic grounds: Republicans claim to endorse tax cuts broadly because they improve incentives, and Democrats claim to believe in (some) tax cuts because they provide economic stimulus.
The problem is that a tax cut now means either increased taxes or lower spending later, assuming the government is going to balance its budget over the long haul. Congress has given no indication it is taking our current debt situation seriously, but most proposed policy changes at least pay lip service to budget balance. And that is where the true conflict arises.
Democrats would love to pay for a cut in the payroll tax with a hike in taxes on high income households. Republicans are adamantly opposed, however, so that approach has no chance politically regardless of its economic merits.
Republicans would gladly pay for the tax cut with reduced spending on any number of programs, such as extended unemployment benefits. Alternatively, they would accept the tax cut, even if not paid for, in exchange for Democratic acceptance of the Keystone XL oil pipeline from Canada to the Gulf of Mexico. Democrats have little interest in these proposals, however, so the Republican approach is problematic, as well. (The Senate bill did agree to accelerate decision-making on Keystone, but that is hardly approval.)
This shows that the current debate is not really over the payroll tax; it is over the size and scope of government. That is an important topic, but it is not one that will get resolved now. Both sides have too much to lose if they make concessions on policy issues that can be used against them in the upcoming elections.
Instead, Congress will almost certainly approve the deal for a two-month extension announced Thursday evening. This is basically the Senate bill, tweaked just enough for House Republicans to save face. The big loser will be the U.S. economy, which must endure the uncertainty of renewed squabbling on a longer extension.
It is tempting to blame this outcome on the "extreme" or misguided views of one party or the other (take your pick, depending on your own views). But that is too simple.
The key problem is that, in one crucial respect, all politicians are alike: They want to get re-elected. In attempting to do so, however, they face different constraints depending on the district they represent. Republicans, especially the more conservative ones, are from states or districts with conservative voters. Democrats the reverse.
Thus even if behind closed doors every member of Congress held the same views on good versus bad policies, gridlock is still likely. Given the current distribution of voter preferences in the United States, roughly half the elected politicians are going to support conservative positions and half the opposite on most issues. Democracy may be the least bad form of government, but it is far from perfect.
This stand-off will only change if voters convince politicians that, on average, their views have evolved in the direction of either bigger or smaller government. This is what the November 2012 elections may reveal. Until then, politics rather than economic common sense will dominate the policy debate.

Does Constitution Allow Supremes to Hide from Us?

by Nat Hentoff

This article appeared on Cato.org on December 28, 2011. 

The first reporter I turn to for accurate news and analysis on a Supreme Court decision is Adam Liptak of the New York Times. In a recent article ("Supreme Court TV? Nice idea, but still not likely," Nov. 28), he told us: "The Supreme Courts of Canada and the United Kingdom allow cameras" during their oral arguments.

But in the self-governing constitutional republic of the United States, Justice David Souter, when he was on our highest court, notoriously pledged: "The day you see a camera come into our courtroom, it's going to roll over my dead body."
If I were teaching a high-school civics class, I don't know how I would explain to the students that they, like the rest of us ordinary citizens, are banned by the court from seeing and hearing how these top interpreters of our rule of law decide cases, thereby preventing us from learning who they are and how they think.


But as a longtime reporter on the court, I would tell the students what I knew about each justice, including my respect for David Souter's exceptionally fair, lucid judgments while he was there — and my shock at his harsh rebuke concerning cameras in the courtroom.
Justice Ruth Bader Ginsburg, of the present court, whom I also respect for her knowledgeable independence, disappointed me, however, with her explanation of Souter's order to keep cameras out: "David ... can go to the supermarket and do his shopping, and no one will notice."
Huh? In my work, I've looked hard through the Constitution many times, but cannot find any grant of anonymity to Supreme Court justices.
While a decisive majority of these self-protecting justices on the current court still oppose letting TV cameras in, they're not, I assume, going to sacrifice their lives if those dreaded cameras were to enter their historic courtroom.
A notable exception to the justices' prevailing distrust of the citizenry's presence in their courtroom is the recently confirmed Justice Elena Kagan, former dean of Harvard Law School.
After President Barack Obama nominated her to the court, I expressed considerable reservations in my previous columns about her record as solicitor general. I was very pleased, however, to read Adam Liptak's report, where Kagan, before joining the court, talked about being able to watch oral arguments, thereby explaining why now she would welcome the TV cameras.
In what she says, I do question her exalted opinion of the qualities of some of her current colleagues:
"Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer ... I thought if everybody could see this, it would make people feel so good about this branch of government and how it's operating. And I thought it's such a shame, actually, that only 200 people a day (in the visitors' small seating section) can get to see it" (The New York Times, Nov. 28).
But what about the many Americans who would like to see for themselves how smart and prepared each of the justices are on live, unedited television? Wouldn't they like to know if the justices are more concerned with making a decision that confirms their own strong prejudgments on a case than making a decision that is influenced by the arguments of the lawyers on each side?
So what do We the People actually want? As I reported last year ("We citizens are still excluded from the Supreme Court," Hanford Sentinel, March 23, 2010), Tony Mauro, a continually valuable reporter on the court, wrote in the March 9, 2010, New York Law Journal that a poll had revealed that "more than 60 percent of voters think that televising U.S. Supreme Court proceedings would be 'good for democracy.'"
He added: "Only 26 percent said televising oral arguments would undermine the court's 'dignity or authority.'"
At New Jersey's Fairleigh Dickinson University, which conducted the poll, Bruce Peabody, chairman of its department of social sciences and history, said:
"It is striking that majorities of Republicans, as well as Democrats, young and older voters, and political independents all believe that televising the Supreme Court would support self-government" (Hansford Sentinel, March 23, 2010).
Hear what James Madison, a father of the Constitution, had to say about the crucial need for us to be fully informed about our government institutions: "A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both ...
"And a people who mean to be their own Governors must arm themselves with the power which knowledge gives" ("Cameras in the courtroom: Television and the pursuit of justice," Marjorie Cohn and David Dow, McFarland, 2011).
I ask the members of the Supreme Court — as they keep us from being present during the three days of oral arguments on the fiercely controversial Obamacare — how they justify this exclusion of citizens in view of James Madison's definition of a truly self-governing constitutional republic.
From 2012 on, as new justices are nominated to the Supreme Court, will they be asked if they'll open the court to us, even at the risk of losing anonymity and being recognized when they go shopping?
While our Founding Fathers had some disagreements, many were concerned whether We the People would continue to insist that our government be responsible to us. Will the new generation be better-informed citizens than we have allowed ourselves to be under President George W. Bush, Vice President Dick Cheney and President Obama?

Obamacare at the Supreme Court

Posted by Ilya Shapiro at http://www.cato-at-liberty.org/obamacare-at-the-supreme-court/


As most readers are no doubt aware, the Supreme Court this week takes up six hours of argument in the Obamacare litigation.  Constitutional claims that were originally dismissed as “frivolous” and “easy” are now getting three days of hearings – unprecedented in the modern era. The Court has thus signaled what the American people have known all along, that the government’s breathtaking assertion of power goes beyond anything attempted in the history of the Republic.
Rather than repeat my previous writings on the subject, here’s a sketch of each of the four issues the Court will examine, along with a link to my recent op-ed on the subject (this month I’ve written on three of the four) and the relevant Cato amicus brief:

1. Whether the challenge to the individual mandate is barred by the Anti-Injunction Act. –- 90 minutes on Monday – op-ed and brief.
2. Whether Congress has the power to enact the individual mandate. –- 2 hours on Tuesday – op-ed and brief.
3. Whether and to what extent the mandate, if unconstitutional, is severable from the rest of the law. –- 90 minutes — op-ed (with Richard Epstein and Mario Loyola) and brief.
4. Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour — brief.

Are there any constitutional limits on what the federal government can do in the name of regulating interstate commerce? The government hasn’t offered any and we’ll see this week whether that’s good enough for the Supreme Court.
Here further is an analytical point-counterpoint I did with University of California-Irvine Law School dean Erwin Chemerinsky previewing the arguments, and here are a series of blogposts by Cato adjunct scholar Tim Sandefur doing the same.  Finally, you can view Cato’s recent conference on the subject here (individual mandate panel) and here (Medicaid expansion panel).
Let’s hope that the Court says that we have a government of laws rather than men, allowing Congress then to get back to the hard work of crafting a true national health reform that both improves the system and stays within constitutional bounds.

Confronting Religious Persecution in North Korea

by Doug Bandow

This article appeared in American Spectator (Online) on December 23, 2011. 

North Korea's "Dear Leader" Kim Jong-il is dead. No one knows what is likely to follow. But one important measure of reform by the new leadership will be ending the regime's brutal religious persecution.

The so-called Democratic People's Republic of Korea pioneered the fusion of Communism and monarchy when in 1994 Kim succeeded his father, Kim Il-sung, as supreme leader. Before his death, Kim Jong-il sought to ensure the same transition to his youngest son, Kim Jong-un.
But the latter Kim, tagged "Great Successor" by North Korea's official media, may not live up to his new title. Kim Jong-il spent a couple decades ascending the party hierarchy under his father's protection; he anointed his own son less than three years ago. There are plenty of claimants to the throne who have been waiting a long time for the Kims to step, or be pushed, aside.
Whoever wins the inevitable power struggle will face a nation in crisis: isolated and impoverished, the North wins attention only by highlighting its missile and nuclear programs. The country desperately needs economic reform if it is ever going to become "a powerful and prosperous country," the theme for next year's planned celebration of the 100th anniversary of Kim Il-sung's birth.
Even more pressing is political reform. The DPRK suffers under the most murderously repressive government on earth. The stultifying personality cult, extensive system of prison camps, and ruthless suppression of dissent look a lot like Stalin's Soviet Union, Hoxha's Albania, and Mao's China. The North also is among the world's most vicious religious persecutors. For the Kim cult is akin to a religion, as evidenced by the exaggerated grief expressed over Kim Jong-il's death.
The regime claims the whole person, just like Christianity and other religions. And in North Korea any competition with the state must be destroyed. That's why believers are treated as "hostile elements," according to Human Rights Watch. The architect of the North Korean state, Kim Il-sung, reportedly explained: "we came to understand that religious persons can only be broken of a bad habit if they are killed."
We know very little about life in the North other than that the regime is brutally repressive. Open Doors routinely rates North Korea number one on its World Watch List. International Christian Concern always places the DPRK in its "Hall of Shame."
Some 150,000 to 200,000 people are believed to be imprisoned in abysmal conditions. Of those, between 40,000 and 70,000 are said to be held for religious reasons — principally for Christian worship and evangelism. ICC figures that number may be even higher, perhaps 100,000, though no one really knows. Reports circulate of the execution of believers, especially leaders like pastors and Bible smugglers.
According to the State Department's latest report on international religious liberty, "the government severely restricted religious activity, except that which was supervised tightly by officially recognized groups linked to the government. Genuine religious freedom does not exist." Unfortunately, repression only seems to have worsened in recent years.
While it is impossible to verify any reports that come out of North Korea, State observed: "Recent refugee, defector, missionary, and nongovernmental organizations (NGO) reports indicated religious persons engaging in proselytizing in the country and those who have been in contact with foreigners or missionaries have been arrested and subjected to harsh penalties. Refugees and defectors continued to say they witnessed the arrest and possible execution of underground Christian church members by the government in prior years."
The United States Commission on International Religious Freedom regularly designates the DPRK as a "Country of Particular Concern." The Commission reported that "Severe religious freedom abuses occur regularly, including: discrimination and harassment of both authorized and unauthorized religious activity; the arrest, torture, and possible execution of those conducting clandestine religious activity."
Nevertheless, the regime is nervous. The flood of refugees into China and the regular flow back into the North has increased opportunities for evangelism. The Commission explained: "The North Korean government interrogates asylum-seekers repatriated from China about their religious belief and affiliations, and mistreats and imprisons as security threats those suspected of distributing religious literature or having ongoing connections with South Korean religious groups."
Even worse in Pyongyang's eyes is the rise of Christianity within the North's boundaries. Although no accurate count of Christians is possible, the Pew Forum estimates 480,000, most of them Protestants. The regime targets the faithful: "In recent years, police and security agency offices have infiltrated Protestant churches in China, begun training police and soldiers about the dangers of religion, and set up fake prayer meetings to catch worshippers." The penalty for law-breakers is high. Stated the Commission: "Anyone caught distributing religious materials, holding unapproved religious gatherings, or having ongoing contact with overseas religious groups is subject to severe punishment ranging from labor camp imprisonment to execution." One North Korean believer told Open Doors: "Since Kim Jong-un came closer to the helm, North Korea has stepped up its attempts to uncover any religious activities."
One of the most detailed accounts of persecution in the DPRK comes from Yoon Yeo-sang and Han Sun-young of the North Korean Human Rights Archives and Database Center for North Korean Human Rights, respectively. They interviewed North Korean defectors and refugees and published their report two years ago.
The authors stated: "only 2.9 percent of those arrested are sent to labor training camps. By contrast, 14.9 percent are sent to prisons and an astonishing 81.4 percent to political prisons camps, the harshest level of punishment in North Korean society. This testifies how severely the regime punishes those involved in religious activities."
The persecution is made worse by the lack of international scrutiny. Private and public violence against Christians and other religious minorities is common in countries such as China, Egypt, Iran, and Pakistan. However, the abuses frequently occur in front of the cameras. At least the names of many victims are known and circulated throughout the international faith community. Believers learn that they are not alone, while governments feel constrained to limit the worst abuses.
In North Korea the suffering church stands almost alone against the most repressive government on the planet. Yoon and Han attempt to personalize the persecution by including reports on North Koreans punished for their faith. Groups like the North Korea Freedom Coalition also work to highlight the reality of persecution, but the individual victims remain largely anonymous. One who spoke out, after escaping to South Korea, was Jeong Young-sil; she was tortured and imprisoned for evangelizing.
Yoon and Han warned that "Religious oppression is ongoing with no signs of any improvement." Even so, their research suggested that "The number of unofficial, behind-the-scenes and clandestine religious activities has increased little by little despite the North's anti-religious policies." No wonder the Kim regime was so nervous about religious freedom.
Of course, Pyongyang recognizes the international advantages of faking religious tolerance. Yoon and Han explain: "North Korea has adopted a so-called 'parallel policy' toward religion, whereby it takes advantage of religion politically, but in fact suppresses it. The 'parallel policy' is a dual policy through which the regime tries to appear in the international community as if it is tolerating religion and guaranteeing religious freedom, while implementing a policy of suppressing religion internally."
Four churches (two Protestant, one Catholic, and one Orthodox) operate legally in Pyongyang. I attended one when I visited the DPRK years ago. A friend, who speaks Korean, told me that he made a similar trip and heard a sermon filled with injunctions about obeying state authority. So much for the radical message of the Gospel. Several religious associations and seminaries also operate — under government control. Moreover, a number of Buddhist temples are open; the government is more tolerant of Buddhism, apparently viewing it largely as a cultural artifact.
Unfortunately, liberal religious groups occasionally have been taken in by the North's Potemkin religious activities. It is a curious blind spot. It should come as no surprise that a regime willing to allow hundreds of thousands or millions of people to starve to death and send hundreds of thousands of people to labor camps refuses to protect genuine religious freedom.
Kim Jong-il's death provides an opportunity for change. Some observers hope the new leadership will relax state control over religion — after all, it would be hard to "be as evil and non-caring as Kim Jong-il," observed Sam Kim, executive director of the Korean Church Coalition for North Korea Freedom. But no one knows how the leadership transition will turn out in Pyongyang. Nor does a Western education or even a commitment to economic reform guarantee increased respect for human rights.
The greatest threat to North Korea's communist system is not internal strife, but the people's transfer of allegiance to a different God, one who created human beings in his image and values them accordingly. That possibility must frighten any government in Pyongyang which continues to tie its legitimacy to the Kim dynasty.
The DPRK is a security threat to Northeast Asia. It also is perhaps the world's greatest humanitarian tragedy. The West should challenge whatever leadership emerges to treat the North Korean people as human beings rather than human chattel. At the same time, Western peoples should work and pray for such a transformation. The people of the DPRK should no longer suffer alone in the shadows.

Obama Officials Say We Don't Trust the Government Enough. Why Would We?

by Michael D. Tanner

This article appeared in New York Post on December 17, 2011. 

With ObamaCare still as unpopular as ever — the latest Rassmussen poll shows Americans favoring repeal of the new health-care law by a 53-40 margin — the Obama administration has developed a new theory as to why. We simply don’t trust government enough.

Donald Berwick, who is leaving his post this month as director of the Center for Medicare and Medicaid services, told The New York Times that health-care reform was a lot like the moon shot. Americans weren’t rocket scientists, he noted. They didn’t understand everything the government was doing, but they still believed in the government’s ability to send men to the moon. Why couldn’t it be the same with health-care reform, he lamented.
Well, perhaps because NASA wasn’t trying to shoot most of us into space. On the other hand, all of us will be impacted by this health-care law. Indeed, health care involves some of the most personal, private and important decisions in our lives.
Or maybe its because we’ve already seen enough results of ObamaCare to have a pretty good idea that it’s not going to work.
For example, a recent survey by the Kaiser Family Foundation shows family premiums increasing by a whopping 9% this year, three times more than the previous year’s increase. The average family policy now costs more than $15,000 per year. Not only has ObamaCare failed to slow premium growth, but at least 2 percentage points of that increase is directly attributable to the health-care law’s provisions.
ObamaCare is also already reducing our health-insurance choices. The new law has already driven a number of insurance companies out of the market, meaning there will be less competition and fewer choices. Moreover, the new law has already cut back on flexible-spending accounts used by some 30 million workers, slashing permissible contributions in half and limiting what account funds can be used to pay for. And just released regulations from HHS may well eliminate most health savings accounts, effecting another 10 million workers and their families. And, of course, once the individual mandate kicks in, in 2014, assuming its not struck down by the Supreme Court, all of us will have to purchase a government-designed insurance plan, even if it is more expensive or contains benefits that we don’t want.
We also know that ObamaCare is going to cost us more in debt and taxes. A new study from the Congressional Budget Office concluded that the subsidies in the bill will add $1.36 trillion to the national debt over the first seven years after the bill is fully implemented. And at a time when 47% of Americans already pay no income tax, the bill’s tax credits will remove as many as 8.1 million more Americans from the tax rolls.
And we know that the health-care law will slash payments to physicians and hospitals, meaning it will be more difficult for us to find and see a physician. The government’s own actuaries estimate that these payment cuts could force as many as 15% of hospitals to close.
Finally, we should remember that ObamaCare contained a Ponzi scheme-like, long-term program, the CLASS Act, that was so actuarially unsound that even this administration had to pull the plug on it.
“Trust us,” just doesn’t seem like an adequate response to these problems.
On issue after issue, the Obama administration has made it clear that they believe they know better than the average American. We should just turn our lives over to them and trust them to make decisions for us.
No doubt we all make mistakes in our lives. But in the last few years, we’ve seen the government invade a country that turned out not to have weapons of mass destruction, ran up $15 trillion in debt, all but bankrupted Medicare and Social Security and nudged us toward a housing bubble that nearly brought down the economy. Should we really trust a government that thought shipping guns to Mexican drug lords and giving $535 million to a money-losing solar panel company were good ideas?
In fact, that will ultimately be the big question in next year’s elections. Whom do you trust to run your life, yourself or the self-appointed experts from the government? And that’s not rocket science.

The USDA: Your One-Stop Shop

Posted by Sallie James at http://www.cato-at-liberty.org/the-usda-your-one-stop-shop/


Politico yesterday reported that Agriculture Secretary Tom Vilsack is upset. According to him, the USDA just don’t get no respect:

Agriculture Secretary Tom Vilsack wants to spread the message to anyone who’ll listen: The U.S. Department of Agriculture isn’t just about farming anymore.
“This department is not appreciated,” the former Iowa governor told POLITICO in a recent interview. “We are engaged in virtually every issue and always can provide some support and some meaningful solution to a problem that is vexing folks.”
To prove the point, he challenges anyone to name an issue that doesn’t touch the department’s portfolio, from bolstering national security by helping wean Afghan farmers from growing opium — a cash crop that funds Islamic insurgents fighting U.S. troops — to providing USDA-backed home loans as a way to repopulate the sparse countryside. [emphasis added, with disgust]

Not bad for an agency that shouldn’t even exist.

From Liberty to Leviathan in a Nutshell

by Roger Pilon at http://www.cato.org/publications/commentary/liberty-leviathan-nutshell

On Monday the Supreme Court will begin hearing oral argument on the Patient Protection and Affordable Care Act ("Obamacare"), which will run for six hours over three days. Brought against the Obama administration by 26 states, the National Federation of Independent Business and two individuals, Florida v. Dept. of Health & Human Services raises fundamental questions about the scope of Congress's powers, the powers reserved to the states and the rights of individuals over their medical care. It is, without question, the most important case the Court has taken in decades.

Every court so far that has ruled against Obamacare has cited the promise of the Constitution's principal author, James Madison, that the powers of the new government would be "few and defined," aimed mainly at securing liberty. That hardly squares with the act's mandate that every American buy government-approved health insurance or pay a hefty fee. Enacted pursuant to Congress's power to regulate interstate commerce, the mandate compels individuals to engage in commerce. Prior to the law's enactment, Congress's own lawyers called the mandate "unprecedented." At oral argument in the courts below, the government's lawyers have been unable to identify a single limit on Congress's commerce power.

As we watch the proceedings unfold, it's worth asking how we got to this point, where judges and lawyers split hairs over fine distinctions, as we'll see next week, yet often ignore the larger constitutional principles. The answer is quite simple: It took just three decisions — two in 1937, one in 1938 — to undermine the Constitution's design and turn it on its head, giving us modern "constitutional law" — not to be confused with the Constitution. Indeed, Obamacare's defenders often make the point themselves when they begin their arguments by saying "Since the New Deal" or "For the past 75 years." The plain implication is that prior to that time, Congress had no such power. And it didn't. For 150 years both Congress and the Court understood clearly that federal regulatory and redistributive power was limited mainly not by the Bill of Rights but by the enumeration of Congress's 18 powers or ends, which left most power with the states or the people.

So what happened during the New Deal? Did we amend the Constitution, as we did after the Civil War when we made fundamental changes in federalism? Of course not: The New Deal constitutional revolution changed not one word in the document. What happened, rather, was pure politics. Because the Supreme Court had ruled several of Franklin Roosevelt's New Deal schemes unconstitutional, he threatened to pack it with six new members after his landslide re-election of 1936. Congress balked, but the Court got the message. With just three decisions it shifted the Constitution's focus from liberty to Leviathan, launching us on the road toward ever-larger government — including, finally, Obamacare.

The first of the three seminal decisions was NLRB v. Jones & Laughlin, decided in April 1937. The issue in that case, as here, was the scope of Congress's power to regulate interstate commerce. At the Founding the commerce power generated little concern because it was understood by all as aimed mainly at checking state protectionist measures that had frustrated interstate commerce under the Articles of Confederation. Accordingly, Congress was authorized to regulate — or "make regular" — commerce among the states. Understood functionally, it was thus a power to secure liberty. But the cowed Jones & Laughlin Court read it as permitting Congress to regulate, for any reason, any activity that affected interstate commerce, which of course is virtually anything, especially if aggregated with other such activities, as the Court would hold in the infamous Wickard v. Filburn decision of 1942.

The irony should not be missed: A power intended by the Framers to free commerce is today used by countless unaccountable regulators to hobble it — for ends limited only by the political imagination. Still, in 1995, for the first time in 58 years, the Court put a brake on Congress's commerce power. In United States v. Lopez the Court said that only activities that were "economic" could be regulated under the commerce power. Yet here, not buying insurance is neither an activity nor, accordingly, economic activity.

The second decision — Helvering v. Davis, upholding the Social Security Act — came down a month later. At issue was the scope of Congress's power to tax under the so-called General Welfare Clause. Once again the New Deal Court turned the original understanding on its head. As Madison and others had made quite clear, Congress had the power to tax only for its authorized ends, as enumerated in the Constitution. Helvering held instead that Congress had an independent power to tax and spend for the general welfare, quite apart from those limited authorizations. That rendered those enumerations and the careful work of the Constitutional Convention completely superfluous, of course, since money can accomplish anything, as Madison had noted. Thus was born Congress's modern, boundless redistributive power.
This matters for the Obamacare litigation in two ways. Some read the penalty for not buying insurance as a tax and hence as justified under Congress's now-limitless taxing power, in which case the Anti-Injunction Act might be read to preclude all of this litigation until the tax takes hold down the road. Only one court below has bought that argument, so it's not likely to fly here. More important, by threatening to withhold state Medicaid funds, the act employs Congress's taxing power to try to compel states to expand their Medicaid rolls and coverage, raising serious federalism questions that the Court reached out on its own to consider, even though the parties had not asked it to. The issue here, in a nutshell, is whether Congress can indirectly compel states to do what it cannot directly compel them to do.

The New Deal's constitutional revolution was completed in 1938 in one of the Court's most celebrated decisions, United States v. Carolene Products. Having opened the floodgates for the modern regulatory and redistributive state, the Court had to remove a final impediment to that state's programs by reducing the rights we exercise in "ordinary commercial transactions" — property and contract rights; economic liberties — to a second-class status. It did so by articulating two levels of judicial review: "strict scrutiny" for laws implicating "fundamental" rights like speech and voting; little or no scrutiny for laws implicating other, "economic rights." Subsequent courts would have a field day with those subjective distinctions, invented from whole cloth to permit federal power and programs to expand.

There were important decisions portending this revolution, of course, and others refining it over time, but those three brought about the structural change that has given us the "constitutional law" we live under today. Except for rare decisions like Lopez in 1995, which only tinkered around the edges, courts have been loath to return to the actual Constitution. That has left the political branches free to be the ultimate source of the problem of ever-growing, unconstitutional government.

But the ball is now plainly in the Supreme Court, which can rule that this act constitutes, in the words of U.S. District Court Judge Roger Vinson, "a bridge too far." The Court itself, of course, cannot roll back the New Deal — the parade of horribles Obamacare's defenders imagine — nor need it. It can rule simply that the Commerce Clause, even in conjunction with the Necessary and Proper Clause, does not authorize Congress to compel commerce so it can then regulate it. And it can rule also that Congress may not use its taxing power coercively against the states.

In the process, however, the Court must articulate the constitutional vision and principles we've so long abandoned, as the 11th Circuit Court of Appeals did when it ruled that Congress, in enacting this statute, had unleashed effectively unlimited regulatory power, tantamount to the general police power the Framers left to the states, and in so doing had upset the balance between the federal and state governments that the Framers established for the purpose of securing our liberties.

It will then fall to the political branches to summon the will to begin, themselves, the long process of restoring constitutionally limited government — before our looming deficits and debt force that result, as they surely will if those branches refuse any longer to grasp the nettle.

Solar Panel Case Shines Light on the Imperative of U.S. Trade Law Reform

Posted by Daniel Ikenson at http://www.cato-at-liberty.org/solar-panel-case-shines-light-on-the-imperative-of-u-s-trade-law-reform/


Earlier this year, the Cato Institute published this paper, which describes the self-flagellating nature of the U.S. antidumping law. Nearly 80 percent of all U.S. antidumping measures imposed between 2000 and 2009 (130 of 164 measures) restrict imports of intermediate goods—inputs required by U.S. producers for their own production processes.
Antidumping duties on magnesium, polyvinyl chloride, and hot-rolled steel, for example, enable petitioning U.S. companies that often dominate domestic supply of raw materials to foreclose alternative sources and then thrust higher prices on their U.S. customers. But those customers—U.S. producers of auto parts, paint, and appliances—who consume the now-restricted raw materials to produce higher value-added goods and who might otherwise create jobs, are instead made less profitable and less competitive, burdening the broader economy.
But here’s the kicker. The statute itself forbids the administering authorities from considering the economic impact of antidumping restrictions on those firms or on the economy at large. The well-being of the petitioning industry is all that matters and the collateral damage to downstream industries and the overall economy is to be ignored.
Now, the high-profile antidumping and countervailing duty cases recently initiated against solar panels from China are shining some fresh light on this outrage. A group called the Coalition for Affordable Solar Energy (CASE), which represents the portion of the U.S. solar industry that is downstream of the solar panel producers (the producers’ customers), is asking the cases be dropped or settled. CASE, representing 145 member companies that employ over 14,000 workers in solar project development, logistics, construction, and installation, argues:

The severe tariffs [being sought] would have a very damaging effect on the solar industry in the United States and would fundamentally undermine many years of effort by all of us who care about the future of solar power …
In simple dollar terms, [the] petition threatens the planned installation of solar electric power systems in the amount of $11 billion in 2012 and the potential installation of $60 billion currently in the total pipeline …
By asking government to interfere and artificially increase the price (equivalent to putting on a high tax) will only hinder the deployment, cost thousands of jobs … and further negatively impact an already shaky economy.

There is no good reason for arguments like these—and the facts supporting them—to be ignored in trade remedies cases. Several other major countries that have antidumping and countervailing duty laws on their books employ a so-called public interest provision that directs the authorities to deny duties when the likely costs are demonstrated to exceed any benefits to the petitioning industry. (See page 18 for an elaboration.)
It is difficult to fathom how an administration that begs U.S. businesses to invest and hire would not be pushing hard for this particular reform. After all, the administration acknowledges the importance of ensuring downstream producers have access to imported inputs. The Office of the U.S. Trade Representative has argued this point in its complaint against Chinese export restrictions at the World Trade Organization. And the president himself described how the competitiveness of U.S. firms is hurt by restrictions on imported inputs when he signed into law the Manufacturer’s Enhancement Act last year.
But then again, incongruities in this administration’s economic policies seem to be the rule, not the exception. In the solar panel case, the president has offered his rhetorical support (at least) to the petitioners, even though their success would drive up the cost of already-too-expensive solar power, reducing demand for an energy source the president has been advocating and subsidizing with the incentive of 30 percent tax credits.
I suppose the White House has determined that the cost of import duties—to consumers up front and to taxpayers through the a much higher tax credit—is worth the benefit of having a Chinese scapegoat to take the heat off the president for Solyndra’s failure.

Will the Last Job Creator to Leave California Please Turn Off the Lights?

Posted by Daniel J. Mitchell at http://www.cato-at-liberty.org/will-the-last-job-creator-to-leave-california-please-turn-off-the-lights/


I’ve written before about whether California is the Greece of America, in part because of crazy policies such as overpaid bureaucrats and expensive forms of political correctness,
And we all know that California has one of the nation’s greediest governments, imposing confiscatory tax rates on a shrinking pool of productive citizens.
So it is hardly surprising that the Golden State is falling behind, losing jobs and investment to more sensible states such as Texas.
But not everybody is learning the right lessons from California’s fiscal and economic mess.
There’s a group of crazies who want to increase the top tax rate by five percentage points, an increase of about 50 percent. And they have made Kim Kardashian the poster child for their proposed ballot initiative.
I’m relatively clueless about popular culture, but even I’m aware that there is a group of people know as the Kardashian sisters. I don’t know who they are or what they do, but I gather they are famous in sort of the same way Paris Hilton was briefly famous.
And they have cashed in on their popularity, which may not reflect well on the tastes of the American people, but it’s not my job to tell other people how to spend their money.
But not everybody share this live-and-let-live attitude, which is why the pro-tax crowd in California produced this video.
I suppose I could criticize the petty dishonesty of the proponents, since they deliberately blurred of the difference between “tax rates” and “taxes paid.”
Or I could expose their economic illiteracy by pointing out that higher tax rates would accelerate the emigration of investors, entrepreneurs, small business owners, and other rich taxpayers to zero-tax states such as Nevada.
But I won’t do those things. Instead, like the Nevada Realtors Association and Arizona Business Relocation Department, I’m going to support this ballot initiative.
Not because I overdid the rum and eggnog at Christmas, but because it’s good to have negative role models, whether they are countries like Greece, cities such as Detroit, or states like California.
So here’s my challenge to the looters and moochers of the Golden State. Don’t just boost the top tax rate by five-percentage points. That’s not nearly enough. Go for a 20 percent top tax rate. Or 25 percent. After all, think of all the special interests that could use the money more than Ms. Kardashian.
And if somebody tells you that she will move to South Beach or Las Vegas, or that the other rich people will move to Texas, Wyoming, or Tennessee, just ignore them. Remember, it’s good intentions that count.
In closing, I apologize to the dwindling crowd of productive people in California. It’s rather unfortunate that you’re part of this statist experiment. But you know what they say about eggs and omelets.
By the way, here’s some humor about the Golden State, including a joke about the bloated bureaucracy and a comparison with Texas.

Killing the Internet to Save Hollywood

by Julian Sanchez

This article appeared in the New York Post on December 21, 2011. 

All Hollywood wants for Christmas this year is to see Congress pass the Stop Online Piracy Act — and the industry's thrown Santa-sacks of cash at lawmakers in hopes of making the copyright scofflaws on their "naughty list" disappear.

But the law, which would empower the US government to start censoring foreign Web sites, would be a lump of coal in every Internet user's stocking.
The goal of SOPA (and its Senate counterpart, the PROTECT-IP Act) is legitimate enough: To fight copyright violators and counterfeiters who run sites beyond the reach of US courts. The trouble is the method. These bills empower the attorney general to seek orders compelling thousands of Internet service providers to block purported "rogue sites," forcing search engines to redact their results and requiring ad networks and payment processors to sever ties.
SOPA's supporters have made a New Years resolution to continue ramming these bills through as early as January, ignoring calls to pause to hear from experts about the bill's unintended consequences.
As Uncle Sam's own cybersecurity experts at Sandia National Labs have noted, the measure is "unlikely to be effective." Anyone with a tiny bit of technical know-how can easily bypass the proposed blocks in any number of simple ways.
For the computer illiterate, there are several one-click circumvention tools already in circulation. As we've seen again and again over the last decade, shutting down pirate sites and services ultimately does little to hinder piracy.
But SOPA wouldn't just be costly and futile: It would deter innovation, interfere with legal speech protected by the First Amendment and (as the geeks at Sandia put it) "negatively impact US and global cybersecurity and Internet functionality."
Under SOPA, any foreign site that allowed users to upload — or even just link to — content would have to fear being wrongly branded a "rogue site," effectively shut down and cut off from revenue until it could prove its innocence in a US court. That's the kind of risk that sends investors running — and why tech entrepreneurs are among the voices loudly opposed to SOPA.
More than 100 eminent constitutional scholars have joined that chorus. They point out that blocking entire Web domain names after a one-sided hearing will inevitably shut down discussion forums where protected speech coexists with links to infringing content, and block Americans' access to their own legal files along with pirated material — as we've already seen happen under existing authorities. Such sweeping "prior restraint" flies in the face of our First Amendment traditions.
Perhaps even more troubling, SOPA would lead to the creation of a sophisticated legal and technological architecture for censorship — a single Internet blacklist implemented across the entire country. Once that machinery is in place, it would be easy, and all too tempting, for future administrations to turn that blacklist to other purposes. Citizens would have to trust the government to only block truly criminal sites — or join the pirates in evading the blocks to judge for themselves.
Network engineers hate SOPA too: A who's-who of the proud geeks who built the modern Internet has warned that domain blocking — and users' inevitable efforts to evade it — would have unpredictable and disruptive consequences for the network's architecture. Stewart Baker, a former top official with the Department of Homeland Security, has pointed to language in the bill that he fears will "kill" an expensive and ongoing effort to make the Internet more secure.
The same "anticircumvention" clause, though a joke to pirates, could threaten programmers who build the vital tools our own State Department has promoted and funded for dissidents seeking to escape the more aggressive online censorship of regimes like China and Iran — regimes that will surely be delighted to point out that the United States, too, now blocks foreign sites it considers "harmful."
These are high costs to pay for a law that would, at best, amount to an impotent symbolic gesture against piracy. Lawmakers should be wary of meddling with technology they admit they don't understand, and instead focus on measures aimed at shutting off the flow of money to criminals, without starting down the dark road of Internet blacklists and government firewalls.

Reality, Meet Education Policy. Education Policy, Please, Meet Reality!

Posted by Neal McCluskey at http://www.cato-at-liberty.org/reality-meet-education-policy-education-policy-please-meet-reality/


Nobody wants to be the guy — especially the Congress-guy — who says that we need to cut education spending. Nobody wants to be the target of attacks from both the well-intentioned and politically opportunistic that they hate children, only care about “the rich,” or any of the other deviousness  that long ago snuck up behind reasoned debate, threw a rope around its neck,  and pulled it backwards.
That’s been proven again today.
If you address it honestly, it’s nearly impossible to deny that federal education meddling has been not just a failure, but a failure with all sorts of bizzaro tendencies. Just look at today’s big edu-news story: Several months ago, Education Secretary Arne Duncan warned that this year 82 percent of the nation’s public schools would be identified as failing under the No Child left Behind Act.  A lot of people smelled pure politics behind the pronouncement — the administration wanted to unilaterally issue waivers from the law in exchange for states adopting POTUS-dictated policies — and today the Center on Education Policy released a report finding that only about 48 percent of schools “need improvement” under NCLB.
Wait, 48 percent? Isn’t that still really high?
It certainly seems so, but who the heck even knows? Every state sets its own standards-and-testing regime and most appear to have gamed the system wildly to stay out of trouble. So are all our schools failing? Half? And what even constitutes failing? No one knows, and few politicians appear willing to talk straight about it. (Of course, most probably have no idea what should constitute math and reading “proficiency” — the law’s goal — to begin with. Indeed, it’s an extremely subjective designation for anyone to make, though some in Washington act like they pretty much know what it is.)
Obviously, no sane individual would ever construct a system like this. But politically, all this illusion and contortion makes sense: Every politician wants to be seen as the savior of our children, but never wants the abuse that would come with creating and enforcing high standards, or being honest about progress made — or not made — under his or her watch. So we get all this sound, fury, and when you compare spending to test scores, educational nothing:


Now, you’d think just the sheer lunacy of federal education policy making would make it clear to all that Washington should get out of education. And if that didn’t do it, the abysmal track record absolutely would. But no: Today the U.S. House of Representatives – the legislative body supposedly full of angry, tea-guzzling Republicans — produced their FY 2012 appropriations bill. And by how much did they cut the U.S. Department of Education budget? 20 percent? 2 percent? No, a microscopic 0.2 percent! A $153 million quark out of a $71.3 billion whale!
While office holders are wrongly considered our leaders by some — they are, in fact, our employees — you’d hope they’d lead a bit by ignoring short-term political consequences and cutting utterly failed programs. But that would be the triumph of hope over reality; politicians are as self-interested as anyone else, and will generally do only those things that help them keep or gain votes. So what must happen is that the public gets intimately familiar with the sick reality of federal education policy and votes based on it. And that means those of us at Cato’s Center for Educational Freedom, and others who know the truth, must do a better job of getting that word out and helping education policy to finally meet reality.

Unconstitutional Patrols and Second Class Citizens

Posted by Tim Lynch at http://www.cato-at-liberty.org/unconstitutional-patrols-and-second-class-citizens/


It does not happen in the suburbs, but in the city, the police will sometimes just pounce on people who are not doing anything wrong and if you complain or ‘mouth off,’ things can get much worse.  Here is an excerpt from a ruling handed down today in DC.

What is most disturbing about this case is the result: a young man in the community . . . who was engaged in peaceful activities (mowing the lawn, smoking a cigarette) and who the police knew at the time they stopped him was not doing anything unlawful, is approached by aggressive officers engaged in aggressive unconstitutional patrols, and this young man ends up being punched in the face with such force that he receives a black eye, kicked numerous times in the back, thrown on the ground, sprayed in the eyes with pepper spray, and finally, he receives two convictions on his record for assault on a police officer. . . . But for this unconstitutional police policy, appellant Crossland would not have suffered a physical attack on his person and would not have had these convictions on his record. Instead, he would have had a rather ordinary day in his community mowing the lawn and smoking a cigarette, a day he probably wouldn’t even have cause to remember, and it is very disturbing that the police in this case are essentially being rewarded for their unconstitutional behavior and aggressive unconstitutional police policy which was the direct cause of a highly volatile situation which led to this young man’s eventual convictions for assaulting them.

The full opinion can be found here [pdf].  One judge says he hopes the police will be admonished for violating the rights of individuals–aggressively confronting people who are not doing anything wrong–and wonders whether he is being naive and unrealistic.  Sorry to say that he is being naive and that’s part of the problem.  If the young man had gone along with the illegal stop and frisk and the officer left the scene after ten minutes, there would have been no real legal remedy available and that’s why these tactics are used over and over again.
Author David Shipler spoke about this kinda thing at Cato a few weeks ago.  Related Cato work here