Meet the Parents of the Super PACs

by Edward H. Crane and David Keating at http://www.cato.org/publications/commentary/meet-parents-super-pacs

If you are looking for the villains who created the so-called Super PACs, look no further. We are the guilty parties.

We are two of the winning plaintiffs in SpeechNow.org v. Federal Election Commission, which was decided by the U.S. Circuit Court of Appeals for the District of Columbia Circuit in March 2010. Contrary to the belief that Citizens United created Super PACs, SpeechNow.org made such groups possible and legal.
As Jan. 31's disclosure of the supporters of Super PACs showed, the majority of funding for almost all of them comes from individuals. In Citizens United v. Federal Election Commission (2010), the Supreme Court did not alter the $5,000 limit on individuals combining their efforts through traditional political action committees to promote a federal campaign. But SpeechNow.org recognized the right of individuals to give unlimited funds to any such committee organized solely to make independent expenditures(although the contributors and their contributions must be disclosed). What Citizens United did was to affirm the right of corporations and unions to make such independent expenditures.
To understand the larger context, let's step back. The most fundamental Supreme Court decision on campaign finance was Buckley v. Valeo (1976), which grappled with the 1974 amendments to the Federal Election Campaign Act (FECA). (Ed Crane was also a plaintiff in that case.) Virtually all aspects of those amendments enhanced the prospects for incumbents, not surprisingly since incumbents wrote them. Most self-serving, perhaps, was a radical spending limit on congressional campaigns. The Burger Court struck down the spending limit as a blatant affront to the First Amendment.
Yet the court in Buckley inexplicably affirmed a $1,000 contribution limit to federal campaigns — ignoring that contributions obviously affect spending levels. According to research by the Cato Institute's John Samples, incumbent re-election rates, already high, increased after that decision.
Nevertheless, in Buckley the court ruled that individuals could spend unlimited amounts to support a federal candidate if those expenditures were not coordinated with the candidate's campaign. SpeechNow.org went further. It held that the First Amendment allows two, or four, or 400 or more individuals to pool their resources and exercise the same right to make independent expenditures that one individual could make under Buckley. Hence, Super PACs.
Money is a proxy for information in campaigns. Yet Americans spend as much on potato chips as they do on all federal elections ($3.6 billion in 2010). Maybe that partly explains why most Americans cannot name their congressman, much less say where he or she stands on the issues.
That's why we believe Super PACs are a good thing. In the recent Republican South Carolina primary, Super PACs reportedly outspent the candidates' campaigns by two to one. That means more information was available on the candidates and more interest in the campaigns has been generated. It could be argued that Super PACS are the reason the GOP primary campaign this year is a horse race and not a coronation.
That said, we'd prefer to allow donors to give money to candidates' campaigns directly. Under such a system Super PACs would still exist, but they'd likely have less influence. And donors could give their candidates a stronger voice in the messaging about their campaigns.
It is instructive to recall the 1968 presidential campaign of Minnesota's late Democratic Sen. Gene McCarthy (who was also a plaintiff in Buckley). Popular support for the war in Vietnam was declining, yet no establishment candidate was available to challenge the war — certainly not Richard Nixon. On the Democratic side, President Lyndon Johnson was escalating the conflict. McCarthy was the most outspoken and articulate opponent of the war in the U.S. Senate, but he lacked the resources to conduct a serious presidential campaign.
Had the 1974 amendments to FECA, with their $1,000 contribution limits, been in place in 1968, there would have been no "Clean Gene for President" campaign. As it was, wealthy liberals such as Stewart Mott, Stanley Sheinbaum and the recently deceased Max Palevsky stepped up to make six- and seven-figure contributions to fund the McCarthy campaign, donations worth nearly $10 million in today's dollars.
Suddenly, tens of millions of antiwar Americans had a candidate. McCarthy didn't win the New Hampshire Democratic primary, but he did so well that President Johnson, seeing the handwriting on the wall, announced he was not going to run for re-election. Such is the manner in which campaign-finance laws can affect history.
According to a group called United for the Future, there are some 70 progressive organizations committed to overturning Citizens United. No doubt they'll also target the SpeechNow.org case, once its implications are fully understood. That is unfortunate. There was a time when liberals put their faith in freedom and the wisdom of the voters.

Taxpayers Shouldn't Have to Pay for Underwater Mortgages

by Mark A. Calabria at http://www.cato.org/publications/commentary/taxpayers-shouldnt-have-pay-underwater-mortgages

Markets, and society, depend upon trust and the expectation that promises will be honored. That trust is eroded when government rewrites contracts, regardless of who is supposed to benefit. Forcing either taxpayers or lenders to cover the lost equity of underwater borrowers, whose mortgages are greater than the value of their homes, is a violation of trust.

Underwater borrowers are not victims. They borrowed money at a particular rate and are paying back at that rate. They knew going in that to refinance, they'd need equity. If said borrowers wanted to take advantage of interest rate declines, they could have gotten an adjustable-rate mortgage. Instead, those borrowers chose the certainty of a fixed rate.
Some contend that helping underwater borrowers would help the economy. The argument is that when you lower mortgage rates for borrowers, reducing their monthly payments, you thereby increase disposable income and spending. That spending then helps turn around the economy.
The error in this argument is that it looks only at one side of the balance sheet. A mortgage is one person's liability, but it is also another's asset. Lowering rates may cut monthly payments, but it also drives down payments on mortgages and mortgage-backed securities. Mortgage investors are now poorer, and they will, by the same logic, reduce their spending. At best, the impact on spending will be zero. That's what you get when you redistribute income.
Worse, for government-owned or guaranteed mortgages, about half of those outstanding, taxpayers are the ones taking the hit. Because homeowners are wealthier than taxpayers in general, such redistribution is regressive.
For the remainder, the investor is often a pension or mutual fund. It is unclear why retirees should pay to benefit younger homeowners.
Even if such a plan is paid for by a tax on banks, it is far from free. The tax would reduce bank equity, thereby reducing new lending. In effect, it would punish potential borrowers by reducing the availability of credit while also increasing its costs, simply to benefit existing borrowers.
A mass refinancing is also sold as a cure for the weak housing market. Those looking to refinance, however, are not in the market to either buy or sell a home. In fact, by lowering their mortgage rates, you will reduce their offering price next time they look to trade up, because if the buyer faces higher rates in the future, prices will be depressed to compensate for giving up their current low-rate mortgage. This could reduce future home prices.
The fundamental problem facing our housing market is a glut of homes, coupled with weak demand. Giving underwater borrowers either a lower rate or a reduced mortgage does not change those fundamentals.

Fed Low Interest Rate Policy Distorts the Economy

by James A. Dorn at http://www.cato.org/publications/commentary/fed-low-interest-rate-policy-distorts-economy

Investors in stocks and longer-term bonds can thank Federal Reserve Chairman Ben Bernanke for his new policy of providing information on the probable path of the federal funds target rate over the next several years.

In the first-ever forecast for multiyear rates, the Fed indicated that short-term rates likely would stay near zero until the end of 2014. Bernanke and other members of the FOMC did not commit to a permanent low-interest rate policy, but the markets believe the "Bernanke put" will keep asset prices from collapsing.
When interest rates are held too low too long, asset bubbles develop and investment funds are misdirected. Can anyone seriously believe that the runup in bond prices can continue indefinitely, or that the Fed's low interest-rate policy hasn't helped push up other asset prices, including gold and stocks?
Manipulating interest rates via central bank policy distorts the structure of asset prices and penalizes savers. Low nominal interest rates, even at low rates of inflation, can mean negative real rates. Pension plans are also harmed as promised benefits cannot be fulfilled.
In effect, the Fed's financial repression violates long-term contracts, erodes savings and increases risk taking.
The Fed is also trying to suppress longer-term rates by buying longer-term securities while reducing its stock of short-term Treasuries.
The Fed now holds 56% of its assets in long-term government bonds and 32% in mortgage-backed securities. During the press conference following the Jan. 25 FOMC meeting, Bernanke also held open the possibility of another round of quantitative easing.
Monetizing government debt and pegging interest rates are experiments in market socialism, not capitalism. The longer the Fed fails to let market forces determine rates, the more difficult the eventual adjustment will become.
Political forces will dominate as Congress pressures the Fed to keep rates low to hold down the costs of financing the massive government debt. And as long as the Fed is willing to buy that debt, the government can continue its profligacy.
Many economists still cling to Keynesian aggregate demand management as the miracle cure for a stagnant economy. And many appear to think that the Fed can stimulate real economic growth and lower unemployment by jacking up the monetary base. The lessons of the stagflation of the 1970s seem to have been forgotten.
Thus, we hear that letting inflation exceed 2% could have social benefits that outweigh the costs, that consumption (especially housing) needs to be pumped up, that saving is harmful because it cuts aggregate demand, and that artificially low interest rates stimulate investment.
What we don't hear is that inflation, even at 2%, erodes the dollar's purchasing power, that the relative price of housing should be set by the market, that saving is socially beneficial and that the multiplier effect of government spending is zero or negative.
The ascendency of Keynesian doctrine is illustrated by a recent statement by Harvard economist Lawrence Summers, who said, "Government has no higher responsibility than insuring economies have an adequate level of demand. Without growing demand, there is no prospect of sustained growth."
Yet, the problem is typically not one of insufficient demand, except when the central bank in a fiat money regime allows the money supply to shrink sharply, as the Fed did during the early 1930s. Economic growth depends on institutional changes that enhance the role of markets, protects private property rights and enlarges economic freedom.
Instead of focusing on aggregate demand management, the U.S. ought to be restoring economic liberties that have been eroded during the financial crisis with the steep increase in the size and scope of government, including the Fed.
There is nothing in the Constitution about stimulating aggregate demand, but there is an enumeration, and hence, limitation of the powers of the federal government. The Framers accepted the convertibility principle inherent in a commodity standard, and the chief architect of the Constitution, James Madison, held that:
"It is sufficiently obvious that persons and property (not aggregate demand management) are the two great subjects on which governments are to act; and that the rights of persons and the rights of property are the objects for the protection of which Government was instituted."
A return to limited government, the rule of law and sound money would go a long way to increasing economic freedom and prosperity, as opposed to more government stimulus.

Why There Is No Human Progress without Capitalism

by Jim Powell at http://www.cato.org/publications/commentary/why-there-is-no-human-progress-without-capitalism

President Obama is on the warpath, attacking capitalism, but Republican candidates haven’t offered much of a counter-attack. This is a bit of a mystery, since the case for capitalism is overwhelming.

For thousands of years, there was virtually no such thing as human progress. The great French historian Fernand Braudel observed, “Peasants represented immense numbers of people, the vast majority of human beings... constant poverty... For century upon century, clothing remained unchanged... the general rule was changelessness.” In Europe, peasant possessions were generally limited to little more than a shirt, a pair of pants, perhaps a simple jacket, a bench, a table and a straw-filled sack that served as a mattress. In India, there were hardly any chairs or tables to be found. There were few chairs in Islamic lands. Multitudes perished because of famines — France alone had hundreds of famines before 1800. Famine undermined the ability of people to resist common deadly diseases like typhoid fever, purple fever, whooping cough, sweating sickness, diphtheria, smallpox, influenza, syphilis and the plague.
Capitalism, as economic freedom is often called, has changed the world for the better by harnessing individual self-interest — the most reliable motivator there is. In markets, functioning without subsidies, special favors or bailouts, entrepreneurs have had powerful incentives to provide what consumers want.
Markets, cities and civilization arose along trade routes where it was convenient for people to gather, such as on rivers or a coast. “Markets,” Braudel declared, “endlessly worked on economies, stirring them up, bringing them to life.” Historian Will Durant added that “Trade was the great disturber of the primitive world.”
In many places, local people used common property for grazing, but they didn’t have any incentive to improve common property, since somebody else would gain at least part of the benefit. Then in England during the 1700s, higher grain prices led property owners to begin enclosing common property. In many cases, local people received cash settlements. In other cases, common property was enclosed by act of Parliament, and the affected local people were often angry. But once land was enclosed, owners had incentives to improve it, because they would benefit. They drained marshes, grew more crops, built walls and erected buildings including houses for laborers who worked on their property. Agricultural output went up, helping to banish famines.
Meanwhile, the Industrial Revolution gained momentum with the development of English textile mills. Entrepreneurs produced not luxuries for the rich but cheap cotton clothing for the multitudes. This made possible improved sanitation, since people could wear one set of clothing while they washed the other set. Most important, England’s population was increasing rapidly, and without the Industrial Revolution, millions would have starved, as happened in rural Ireland during the 1840s. “England was delivered, not by her rulers,” historian Thomas S. Ashton wrote after World War II, “but by those who, seeking no doubt their own narrow ends, devised new instruments of production. There are today on the plains of India and China people plague-ridden and hungry, living lives little better, to outward appearance, than those of the cattle that toil with them by day and share their places of sleep by night. Such Asiatic standards, and such unmechanized horrors, are the lot of those who increase their numbers without passing through an Industrial Revolution.”
But aristocratic landowners weren’t happy, because textile mills created jobs that attracted large numbers of people away from farm work on their estates. The original smears against capitalist factories were made during the 1800s by English aristocrats and later picked up by socialists, much as we are now beginning to see Obama campaign strategists relish the prospect of exploiting recent Republican swipes at capitalism.
Capitalist entrepreneurs created stupendous numbers of jobs that were productive, because they helped provide what consumers wanted. During the early years of the 20th century, when millions of immigrants landed in America, the unemployment rate dropped as low as 1.6 percent. Not only that: economist Thomas Sowell reported: “Immigrants begin economically below the level of existing members of their own ethnic group already in the country, but eventually they surpass them.”
Many immigrants launched what became giant business enterprises. Notable immigrant job creators included John Jacob Astor, Adolphus Busch, William Colgate, Alexander Graham Bell, Samuel Goldwyn, Louis B. Mayer and Helena Rubenstein.
Of course, there have been countless failures when entrepreneurs and their employees weren’t able to keep up with changing markets. Since consumers always want the most for the least, competition tends to drive down prices. Consequently, costs must be minimized, which can mean reducing head count — payroll is the largest cost for most businesses. Fortunately, if government doesn’t have excessive taxes, regulations or other obstacles to enterprise, capitalism achieves the highest growth rates of any economic system, creating more and more new jobs.
Capitalists have done far more than serve consumers. In addition, many supported charitable enterprises that helped relieve human suffering. Such private individuals could take action much more quickly than government officials who had to cultivate political support for appropriations. It was no coincidence that great charitable enterprises developed along with great business enterprises during the nineteenth century, before there was a welfare state... For instance:
* In 1833, New York silk merchants Lewis and Arthur Tappan joined Boston abolitionist William Lloyd Garrison to help form the American Anti-Slavery Society. The Tappans lost their business during the Panic of 1837, but they subsequently developed America’s first credit reporting service that became Dun & Bradstreet. Meanwhile, Lewis Tappan worked to free enslaved Africans who were jailed in New Haven after they had seized control of their ship, the Amistad — the case went to the U.S. Supreme Court (1841), and the Africans were acquitted. Lewis Tappan was also a major benefactor of Oberlin College that enrolled women as well as men, blacks as well as whites.
* George Williams was an English farm boy who went to London and got a job working for a cloth merchant. He observed how easy it was for young men to get into trouble — they commonly spent their spare time in taverns and brothels. Williams started what became the Young Men’s Christian Association (YMCA) in 1844. Before long, it was opened to men, women and children of all races, religions and nationalities. Increasingly, YMCAs promoted physical health through sports. Basketball, football and racquetball all originated at YMCAs. Branches have opened around the world.
* In 1859, Geneva-born businessman Henri Dunant was horrified to arrive in Solferino, Italy after French and Italian forces had fought the Austrians. The battlefield was littered with some 38,000 bodies, and nobody was taking care of the wounded. In 1863, he helped found the International Committee of the Red Cross, and he helped establish Red Cross organizations in other European countries. In 1901, Dunant was awarded the first Nobel Prize.
* In 1865, William Booth, an English Methodist lay preacher, together with his wife Catherine, established the Christian Revival Society in London’s impoverished East End. The Booths held nightly meetings aimed at inspiring alcoholics, prostitutes and thieves to take responsibility for their lives and do good. The Booths recruited neighborhood people to help open soup kitchens for feeding the poor. By 1878, their operations had expanded considerably, they changed the name of their organization to the Salvation Army. Branches were opened in 58 countries and colonies during Booth’s lifetime.
* One of the most remarkable cases of private sector charity involved the fabled investment banker Jacob Schiff and nurse Lillian Wald who was the daughter of German-Polish-Jewish immigrants. She had taken care of many poor, sick people in Manhattan’s Lower East Side slums. Wald and another nurse, Mary Brewster, started what became the Visiting Nurse Service of New York, and Schiff provided financial backing for 27 years — until he died.
* In the Old World, art collections were often built up from plunder, but in the New World art has been a byproduct of capitalism — long before the National Endowment for the Arts existed. Without the wealth entrepreneurs created, many people who had artistic talent might have been tilling fields. Museums were born during the Industrial Revolution. Entrepreneurs and their heirs like the Rockefellers, Guggenheims, Havemeyers and Mellons supported museums. Unlike European museums that catered mainly to artists and scholars, American museums aimed to educate the public. As Joseph Choate, a founder of New York’s Metropolitan Museum, put it in 1880: “the diffusion of knowledge of art in its higher forms of beauty would tend directly to humanize, to educate and refine a practical and laborious people; that through the great masterpieces of painting and sculpture...could never be within their reach, yet it might be possible in the progress of time to gather together a collection of works of merit, which should impart some knowledge of art and its history to a people who were yet to take almost their first steps in that department of knowledge.”
In the heyday of laissez faire capitalism, before public schools were widespread, parents assumed more responsibility for educating their children, and America became a highly literate country. Best evidence of this: the amazing number of books, particularly children’s books. In 1840, Cincinnati, the smallest center of the U.S. book trade, issued an estimated 2 million books. In 1855, the American Publisher’s Circular reported that more books were sold in the United States than in Great Britain, a much more prosperous country. An estimated 30 to 40 percent of what U.S. publishers issued were textbooks. The New England Primer, a catechism, sold 500,000 copies. By 1859, Noah Webster’s spelling book had sold an incredible 30 million copies — this was approximately equal to the U.S. population at the time. The most popular American textbooks, the Readers developed by William Holmes McGuffey, sold an amazing 125 million copies. Peter Parley sold over 7 million copies of his books — Peter Parley’s Tales of America (1827), Parley’s Winter Evening Tales (1828), Parley’s Juvenile Tales (1830) and Parley’s Geography for Children (1840). Anna Sewall’s Black Beauty, initially published in London, sold 3 million copies in the United States. James Fenimore Cooper’s Last of the Mohigans sold over 2 million copies. Books like She, Heidi, Little Women, Treasure Island, Little Lord Fauntleroy, Uncle Remus, Peck’s Bad Boy and The Adventures of Tom Sawyer were also among the children’s bestsellers.
The most successful 19th century entrepreneurs didn’t have much formal schooling, but they had a keen appreciation of learning. This was decades before there was a federal Department of Education. In 1881, Andrew Carnegie created an endowment that over the years spent some $55 million to build more than 1,600 libraries across America. In 1895, New York Public Library was formed by consolidating the private libraries of furrier John Jacob Astor, real estate entrepreneur James Lenox and railroad and mining attorney Samuel Tilden. New York Public Library now has some 206,000 prints, 400,000 sheets of music, 6.5 million books and 13.5 million manuscripts.
During the 19th century, successful entrepreneurs funded great colleges and universities before there was a permanent income tax to encourage deductible philanthropic contributions. In 1861, about 20 Boston scientists and entrepreneurs contributed $100,000 to start the Massachusetts Institute of Technology. In 1868, Western Union investor and land speculator Ezra Cornell started the university that bears his name. In 1873, Baltimore grocer and railroad investor Johns Hopkins died, leaving $7 million to help fund a major university that opened three years later. Railroad entrepreneur Leland Stanford started his university in 1885 as a memorial for his son and operated it on his farm. John D. Rockefeller gave $35 million to help establish the University of Chicago.
Decades before women had the vote, entrepreneurs supported education for women by launching women’s colleges like Mount Holyoke (1837), Vassar (1861), Smith (1871), Wellesley (1875), Radcliffe (1879), Bryn Mawr (1885) and Barnard (1889).
Moreover, the Industrial Revolution, in the United States as well as Europe, made life easier for women in countless ways. Mass-produced soap, clothing, cosmetics, canned food and myriad other things meant that women didn’t have to spend huge amounts of time making everything they needed. During the 19th century, kerosene lamps replaced troublesome whale-oil lamps, and gas lights and later electric lights replaced kerosene. With so much labor saved, women began to have leisure time, and many used it to start clubs. A large number were for self-improvement. They encouraged the study of literature, history, science, current affairs and foreign languages. There were circulating libraries for members. Such clubs helped women with little formal education to gain more knowledge about the world. Professional women formed clubs to discuss their mutual concerns. While government officials suppressed information about and access to birth control methods, large numbers of women obtained both from private businesses like Sears, Robuck.
Capitalism created opportunities for women to gain financial independence. Initially, women earned money outside the home mainly by performing domestic service, as maids, cooks and cleaning women. Then during the 19th century, factory jobs provided new opportunities. Factory owners didn’t care what the proper role of women was supposed to be. They hired women because they were willing to work for less than men, and they were often more conscientious workers than men. The invention of the telegraph, typewriter and telephone created nicer office job options for millions of women. Women got ahead more rapidly in business than in licensed professions and much more rapidly than in politics.
We need to understand how far we have come and how we got here. As historian Braudel reminds us, “Wherever the market is absent, or insignificant, one is certain to be observing the lowest plane of human existence.”
After the “progressive” expansion of political power during the past century, America still has the Constitution and enough of a market economy left that it could be restored.
Capitalism is worth defending. Hopefully, the presidential candidates will learn how to do it.

Hassling the Innocent Is TSA's Specialty

by Gene Healy at http://www.cato.org/publications/commentary/hassling-innocent-is-tsas-specialty

"Rand Paul has got to be on the 'Top 10 People TSA Would Be Smart to Leave Alone' list," National Review's Jonah Goldberg tweeted when news broke of the senator's run-in with the Transportation Security Administration at Nashville International Airport last week.

Kentucky's junior senator missed his flight when he refused a pat-down after a body scanner showed an "anomaly" on his knee.
Someone with a conspiratorial mind-set might suspect a little payback for the grilling Paul gave TSA Administrator John Pistole last summer over the agency's policy of giving the "freedom fondle" to innocent 6-year-old girls. But that assumes the TSA has enough on the ball to carry out even a minor conspiracy.
What Paul experienced was just the routine, pointless indignity that is the agency's stock in trade. While the terrorist threat has diminished radically, the Obama administration is busy expanding the agency's reach onto highways, sporting events and train stations.
Much has been made of the bizarre martial metaphors President Obama employed in his State of the Union last week, where he urged Americans to adopt the spirit of "unit cohesion" animating SEAL Team 6: "All that mattered that day was the mission. No one thought about politics. No one thought about themselves."
Yes, why can't America function as a highly trained military unit that obeys Obama's every command without questioning it?
What made the martial rhetoric even odder was that Obama's speech began with an admission that the country is, in fact, quite safe: "For the first time in two decades, Osama bin Laden is not a threat to this country. Most of al Qaeda's top lieutenants have been defeated."
The safety we enjoy owes very little to TSA's competence and a great deal to our adversary's incompetence. Terrorism expert and Cato Institute senior fellow John Mueller notes "the rather impressive inability of the terrorists [in post-9/11 cases] to create and set off a bomb."
Indeed, "the only method by which Islamic terrorists have managed to kill anyone at all in the United States since 9/11 has been through the firing of guns — in the Little Rock and Fort Hood cases."
Even as the threat recedes, Obama's Department of Homeland Security — of which TSA is a part — is expanding the use of paramilitary checkpoints at home. In Leesburg, Fla., earlier this month, federal agents armed with semiautomatic weapons checked IDs in a training exercise at a local Social Security Administration office.
TSA VIPR teams — for Visible Intermodal Prevention and Response — conducted over 9,300 random searches in 2011, on cruise ships, at NASCAR races, on buses, and at train stations.
The Los Angeles Times described one such search at the Charlotte, N.C, Amtrak station in January, in which "three federal air marshals in bulletproof vests and two officers trained to spot suspicious behavior watched closely as Seiko, a German shepherd, nosed [a fiftysomething lawyer's] trousers for chemical traces of a bomb."
"TSA officials say they have no proof that the roving [VIPR] teams have foiled any terrorist plots or thwarted any major threat to public safety," the L.A. Times noted. Still, TSA wants funding for a dozen more VIPR teams.
Contemplating "mission creep" in Obama's TSA suggests a different martial metaphor than those employed by our newly militaristic president last Tuesday. In his book "Wartime," Paul Fussell, a veteran of the Pacific theater in World War II, devotes a whole chapter to "petty harassment" by those in power — which soldiers summed up with a salty term: "chickens—t."
"Frequent, unnecessary inspections," "insistence on the letter rather than the spirit of ordinances" — it "can be recognized instantly," Fussell writes, because it never has anything to do with winning the war."

Watts Up? Who Killed Climate Change?

by Patrick J. Michaels at http://www.cato.org/publications/commentary/watts-who-killed-climate-change

Fast backward to February 24, 2009, the date President of Obama’s first State of the Union Speech. The order of battle was “energy, health care, and education”.

That’s right, climate change came before health care. Specifically, he said we should “... invest in the three areas that are absolutely critical to our economic future: energy, health care, and education. It begins with energy... to truly transform our economy, protect our security, and save our planet from the ravages of climate change... I ask this Congress to send me legislation that places a market-based cap on carbon pollution.”
Seems easy. He won by a landslide, grabbed a big majority in the House, and with the expected help of some Northeast republicans in the Senate, passage looked like a sure thing. Further, reducing carbon dioxide emissions was bipartisan. Only six months before Obama’s election, Newt Gingrich and Nancy Pelosi recorded a commercial agreeing on the need to stop global warming. Now.
Fast forward to January 24, 2012. Education comes before energy. Instead of limiting emissions, he leads off with a call for increased offshore drilling and gas drilling around the country, and finishes by saying “The differences in this chamber may be too deep right now to pass a comprehensive plan to fight climate change.”
What killed global warming as the President’s number one priority? I suspect it was a combination of responsive politics and a blogger by the name of Anthony Watts.
The great crack-up started a mere 123 days after Obama’s first SOTU speech, at 7pm on Friday, June 26, 2009, when the House of Representatives gave the President what he wished for: passage of a cap-and-trade bill cutting U.S. emissions of carbon dioxide 83% in 41 years. By 2050, the average American would be allowed the same emissions produced by a citizen in 1867.
Enviro groups jubilated. Natural Resources Defense Council doubled down, pressing the Senate for even more. The great Green Age had finally arrived!
Three days later, reality hit. On June 29, Scott Rasmussen’s presidential approval index, which is a three day average, went negative, meaning more people he polled “strongly disapproved” of the President than “strongly approved”. Obama’s index has not been positive for one day since.
Rasmussen also runs a weekly “generic congressional ballot”, in which pollsters ask what party you would vote if the congressional election were held tomorrow. The same week, it switched from generic Democratic to generic Republican, and it hasn’t been positive democratic for one week since.
Senate staffers check the daily tracking index before they go to the bathroom in the morning, so it is not surprising that there was very much hot air and very little substantive movement to pass cap and trade in the upper chamber.
The political price of cap-and-trade was paid on election day, 2010. Almost every close House race went Republican, if an incumbent Democrat had voted for it. In the Senate, which never considered it, every close race went to the Democrats.
Meanwhile, the public, which never was all that big on it, grew increasingly disenchanted with global warming. When first polled by the Pew Organization in January, 2007, 38% of respondents rated it as a “top priority” for congressional action. This month that figure is 25%, dead last among the twenty possible issues presented by Pew.
The political price was paid, and the public simply tired of the incessant gloom and doom campaign by government scientists, environmental organizations, Al Gore, the Weather Channel, Center for American Progress, every Environmental Science Department in higher education, the public schools, private schools, and Hollywood science experts (of which there are plenty—just ask!).
Standing in the way of this gargantuan effort was a weather nerd in Chico, California, by the name of Anthony Watts, the proprietor of www.wattsupwiththat.com. “WUWT” is by far the most popular climate science site in the world, sporting over 100 million hits to date. Watts tirelessly documented seemingly arcane climate science findings, the climategate emails, and promoted the healthiest debate in the world on the interaction of science and politics.
Not everything on WUWT is right, that’s for sure. But the sense of free inquiry and thought Watts has fostered on his site has shamed the climate apocalypse machine into inconsequence. David whupped Goliath, one of the most amazing achievements in the history of science communication.
WUWT publicized the two batches of “Climategate” emails detailing some pretty awful behavior by people who are not my friends. WUWT covered the disastrous UN global warming confab in Copenhagen in December, 2009 (where President Obama learned America’s place in the climate policy world was a spot called nowhere), and Watts publicized the revelation of glaring science mistakes by the UN, as well as the raging debate on why surface temperatures haven’t warmed for fourteen years.
It’s probable that the reaction to a politically unwise cap and trade bill, and tireless work of an obscure weather forecaster from the northeast corner of the Sacramento Valley killed climate change.

Copyright Case May Have Profound Effect on Treaty Power

by Ilya Shapiro at http://www.cato.org/publications/commentary/copyright-case-may-have-profound-effect-treaty-power

While legal experts continue debating the intellectual property ramifications of the Supreme Court's decision in Golan v. Holder, I want to focus on the dog that did not bark: the treaty power argument that the government abandoned and the Court ultimately ignored.

Although the government succeeded in persuading a majority of the Court that it has the power to withdraw certain works from the public domain, it relied solely on the Constitution's Copyright Clause to do so — even though the impetus for the legislation was a trade agreement that amended the Berne Convention for the Protection of Literary and Artistic Works. This development is significant because the government had been implying — and its amici stating explicitly — an alternative ground for Congress's authority to do what it did: that the "re-copyrighting" law was a necessary and proper means of accomplishing the executive power to make treaties.
That treaty power argument was not completely out of left field, because the ruling in Missouri v. Holland, an obscure 1920 case concerning the Migratory Bird Treaty Act between the US and Canada, has long been interpreted to suggest that Congress's powers can indeed grow when necessary to implement a duly ratified treaty. According to the conventional gloss on Justice Oliver Wendell Holmes's five-page opinion in Holland, even if Congress has no enumerated power to pass, say, general criminal laws, Congress's power expands to allow such legislation if, say, a treaty with France demands that we pass it. Thus, foreign nations and the executive branch are given the power to change one of the most hotly debated and carefully crafted sections of the Constitution, the scope of Article I congressional power.
This bizarre situation led me to join Georgetown law professor Nicholas Quinn Rosenkranz in filing an amicus brief [PDF] in Golan on behalf of the Cato Institute, highlighting the problems with an expansive interpretation of the treaty power (an idea that Professor Rosenkranz had illustrated in a previous article).
We argued that, as a matter of constitutional structure, history and logic, a treaty cannot increase Congress's legislative powers. Not only is the power to "make treaties" distinct from the power to execute treaties already made, but such an expansive interpretation of the treaty power would allow Congress and the executive to circumvent the Article V amendment process. In short, Holland is a structural and doctrinal anomaly in tension with other precedent and based on a misreading of constitutional history. It should be overruled or at least reinterpreted.
In any event, whether in response to our brief or under the shear force of Justice Scalia's questioning, the government gave up on the treaty power track in one fell swoop during the Golan oral argument [PDF]:

JUSTICE SCALIA: It seems to me Congress either had the power to do this under the Copyright Clause or it didn't. I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government. I mean, this is either okay under the copyright clause or it is not. SOLICITOR GENERAL VERRILLI: We completely —
JUSTICE SCALIA: It would be nice to know the reason for it, but you would still have to establish that it's within the power of the Federal government —
SOLICITOR GENERAL VERRILLI: We completely agreement with that, Justice Scalia.

That is a positive development, but it is even more remarkable that the Golan dissent likewise failed to reach the Holland issue, even though it logically should have. Since Justice Breyer, joined by Justice Alito, thought that the Copyright Clause did not give Congress the power to pass the relevant statute, he had to see whether there was other authority for it — namely, the treaty power. However, there is no discussion of this issue, or even a citation to Holland. Instead, Justice Breyer simply concluded that "the [Berne] Convention cannot provide the statute with a constitutionally sufficient justification that is otherwise lacking."
So where does that leave us? For one thing, the continuing expansive interpretation of Holland is surely in doubt. We need look no further than the the above exchange between Justice Scalia and Solicitor General Verrilli to exhibit such skepticism. Also, former solicitor general Paul Clement argued against the treaty power in the remanded case of Bond v. US — a bizarre case involving a chemical weapons treaty that the Supreme Court unanimously sent back to the US Court of Appeals for the Third Circuit last year. At oral argument, the Court seemed intrigued by, and even sympathetic to, Clement's position that the government lacked the power to use the implementation of an international treaty to prosecute the defendant for what was effectively assault.
Just as Bond may make a return visit to the Supreme Court, the Court's ruling in Golan may have provided a glimpse of where the Court will go with the treaty power when it — or some other appropriate case — gets there.

Sports Authority

Posted by Adam Schaeffer at http://www.cato-at-liberty.org/sports-authority/


Home schooling is the most dynamic and innovative segment of K-12 education. But even with technological advances, co-ops and hybrid schooling, taking on that level of individual responsibility for a child’s education is difficult.
One particularly difficult problem for home school families in Virginia and elsewhere is competitive sports, particularly in high school.
A private non-profit organization, the Virginia High School League, governs high school sports for public schools in Virginia and determines eligibility for participation. Home-school and private-school parents pay taxes for the public schools, but their kids are banned from participating in local high school sports run through the government schools.
For private school kids, that’s not typically a major problem; they have enough students to field teams and schools for their own league. But home-schoolers, especially in rural areas, don’t have those numbers. And that means they are out of luck.
There’s a bill being heard today (HB 947) that would prohibit public schools from joining an association with a blanket ban on home school student participation, and let each school district decide whether to allow them to try out for a team.
The Virginia PTA seems horrified that the home-school rabble might be included, proclaiming that “participation on athletic teams is a privilege that should be reserved for the public school students.” They have told members to call their representatives to say, “public school is your choice and team sports are a privilege you earned and expect them to protect.” Funny, I thought government school were supposed to be open to everyone . . . we certainly all pay a lot of money for them.
It’s always messy when the government runs things they shouldn’t – there is never a perfect solution – but it does seem odd and unfair for a private organization to ban a segment of Virginia’s children from joining a team in the local public school their parents support with their taxes.
Team sports shouldn’t be run through government schools in the first place, but if they are, they shouldn’t exclude children because their parents have taken full responsibility for their child’s education and shouldered its full cost.

‘Destroy America’ = Suspicion Fail

Posted by Jim Harper at http://www.cato-at-liberty.org/destroy-america-suspicion-fail/


News that incautious comments on “tweeter” got British tourists excluded from the United States had Twitter alight yesterday. (Paperwork given to one of the two, on display in this news story, refers to the popular social networking site as a “Tweeter website account,” betraying some ignorance of what Twitter is.)
It’s a good chance to review how suspicion is properly—and, here, improperly—generated.
The Department of Homeland Security has been vague as yet about what actually happened. It may have been some kind of “social media analysis” like this that turned up “suspicious” Tweets leading to the exclusion, though the betting is running toward a suspicious-activity tipline. (What “turned up” the Tweets doesn’t affect my analysis here.) The boastful young Britons Tweeted about going to “destroy America” on the trip—destroy alcoholic beverages in America was almost certainly the import of that line—and dig up the grave of Marilyn Monroe.
Profoundly stilted literalism took this to be threatening language. And a failure of even brief investigation prevented DHS officials from discovering the absurdity of that literalism. It would be impossible to “dig up” Marilyn Monroe’s body, which is in a crypt at Westwood Memorial Park in Los Angeles.
I testified to the Senate Judiciary Committee in 2007 about how one might mine data for terrorists and terrorism planning, in terms that apply equally well to Twitter banter and to any criminality or wrongdoing. For valid suspicion to arise, the information collected must satisfy two criteria:

(1) It is consistent with bad behavior, such as terrorism planning or crime; and (2) it is inconsistent with innocent behavior. In . . . the classic Fourth Amendment case, Terry v. Ohio, . . .  a police officer saw Terry walking past a store multiple times, looking in furtively. This was (1) consistent with criminal planning (“casing” the store for robbery), and (2) inconsistent with innocent behavior — it didn’t look like shopping, curiosity, or unrequited love of a store clerk. The officer’s “hunch” in Terry can be described as a successful use of pattern analysis before the age of databases.

Similarly, using the phrase “destroy America” is consistent with planning to destroy America. (You want to be literal? Let’s be literal!) But it’s also consistent with talking smack, which is innocent behavior. These Tweets fail the second criterion for generating suspicion.
Twitter is nothing if not an unreliable source of people’s thinking and intentions. It’s a hotbed of irony, humor, and inside jokes. Witness this Tweet of mine from yesterday, which failed to garner the social media guffaw I sought (which is why I link to it here). Things said on Twitter will almost never be suspicious enough to justify even the briefest interrogation.
Other facts could combine with Twitter commentary to create a suspicious circumstance on extremely rare occasions, but for proper suspicion to arise, the Tweet or Tweets and all other facts must be consistent with criminal planning and inconsistent with lawful behavior. No information so far available suggests that the DHS did anything other than take Tweets literally in the face of plausible explanations by their authors that they were using hyperbole and irony. This is simple investigative incompetence.
If indeed it is a “social media analysis” program that produced this incident, the U.S. government is paying money to cause U.S. government officials to waste their time on making the United States an unattractive place to visit. That’s a cost-trifecta in the face of essentially zero prospect for any security benefit. I slept no more soundly last night knowing that some Brits were denied a chance to paint the town red in L.A.
In case it needs explaining, “paint the town red” is archaic slang. It does not imply an intention or plan to apply pigments to any building or infrastructure in Los Angeles, whether by brush, roller, or spray can.

A Brewing Institutional Crisis in Panama

Posted by Juan Carlos Hidalgo at http://www.cato-at-liberty.org/a-brewing-institutional-crisis-in-panama/


Panama is in turmoil due to the efforts of President Ricardo Martinelli to resurrect a defunct specialized court within the Supreme Court that would allow him to pack that body and possibly pave the way for his reelection.
First, some context: The nine-Justice Panamanian Supreme Court is divided in four specialized courts dealing with specific areas of the law (civil, criminal, administrative and general government business). The first three specialized courts have 3 justices each, while the fourth one (dealing with general government business) is formed by the presidents of each of the three other specialized courts.
There used to be a Fifth Court dealing with constitutional issues. However, in 1999 Congress passed a law that abolished that body. Now, constitutional cases are dealt by the nine-Justice Supreme Court as a whole.
Last year the Supreme Court, whose chief justice is a close associate of Martinelli, ruled that the law abolishing the Fifth Court was illegal. This created a legal vacuum since nobody knows for sure whether that means that the old Fifth Court should be reinstated or a new one should be created.
Martinelli seized on the controversial ruling by the Supreme Court and introduced a bill in Congress that would create a Fifth Court. If approved, the new court would have three new justices (appointed by Martinelli) and would deal with constitutional issues, one of them being the constitutionality of presidential term limits. The Panamanian Constitution currently bars a sitting president from running for a consecutive term. The president has to step out for two terms before running again for office. Many in Panama fear that Martinelli’s ultimate goal with the Fifth Court is to get rid of term limits.
Let’s not forget that a similar ploy was recently used by Daniel Ortega in Nicaragua to run for reelection despite the Constitution explicitly barring him from doing it. There, a friendly Supreme Court ruled that presidential term limits were unconstitutional and thus enabled Ortega to run again (and win the election).
Despite enjoying a large majority in Congress, where Martinelli has bought off many lawmakers, the opposition was able to filibuster the bill creating the Fifth Court. However, thanks to the nebulous ruling by the Supreme Court last year, Martinelli is now threatening with appointing the 3 new justices even without a law passed by Congress. A constitutional crisis seems inevitable.
A recent poll published by the daily La Prensa showed that 70 percent of Panamanians regarded Martinelli as “authoritarian” and 73 percent were concerned for the future of democracy their country. Amid strong criticism for his autocratic tendencies, for his attacks against freedom of speech, and for using tax audits to persecute his political opponents, the Fifth Court affair certainly shows that Ricardo Martinelli is the most dangerous man for democracy and rule of law in Central America after Nicaragua’s Daniel Ortega.

Contraceptives Mandate Brings ObamaCare’s Coercive Power into Sharper Focus

Posted by Michael F. Cannon at http://www.cato-at-liberty.org/contraceptives-mandate-brings-obamacares-coercive-power-into-sharper-focus/


President Obama is catching some well-earned blowback for his decision to force religious institutions “to pay for health insurance that covers sterilization, contraceptives and abortifacients.” You see, ObamaCare penalizes individuals (employers) who don’t purchase (offer) a certain minimum package of health insurance coverage. The Obama administration is demanding that coverage must include the aforementioned reproductive care services. The exception for religious institutions that object to such coverage is so narrow that, as one wag put it, not even Jesus would qualify. HHS Secretary Kathleen Sebelius reassures us, “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Ummm, Madam Secretary…the Constitution only mentions one of those things. The Catholic church is hopping mad. Even the reliably left-wing E.J. Dionne is angry, writing that the President “utterly botched” the issue “not once but twice” and “threw his progressive Catholic allies under the bus.”
As I wrote over and over as Congress debated ObamaCare, anger and division are inevitable consequences of this law. I recently debated the merits of ObamaCare’s individual mandate on the pages of the Wall Street Journal. Here’s a paragraph that got cut from my essay:

We can be certain…that the mandate will divide the nation. An individual mandate guarantees that the government—not you—will decide what medical services you will purchase, including contraceptives, fertility services that result in the destruction of human embryos, or elective abortions. The same apparatus that can force Americans to subsidize elective abortions can also be used to ban private abortion coverage once the other team wins. The rancor will only grow.

Or as I put it in 2009,

Either the government will force taxpayers to fund abortions, or the restrictions necessary to prevent taxpayer funding will reduce access to abortion coverage. There is no middle ground. Somebody has to lose. Welcome to government-run health care.

The same is true for contraception. The rancor will grow until we repeal this law.
ObamaCare highlights a choice that religious organizations — such as the United States Conference of Catholic Bishops, where my grandfather served as counsel — have to make. Either they stop casting their lots with Caesar and join the fight to repeal government health care mandates and subsidies, or they forfeit any right to complain when Caesar turns on them. Matthew 26:52.

A Flat Tax Is the Answer

by Daniel J. Mitchell at http://www.cato.org/publications/commentary/flat-tax-is-answer

The class-warfare crowd is predictably outraged that Mitt Romney supposedly paid just 13.9 percent of his income to the crowd in Washington. Surely this is a sign of both inequity and iniquity. Meanwhile, previewing a theme for the general election, President Obama said in his State of the Union address that "millionaires and billionaires" should cough up at least 30 percent of their earnings to the IRS.

This is bad policy based on inaccurate data.
Let's deal first with the flawed numbers. Capital gains taxes and dividend taxes are both forms of double taxation. That income already is hit by the 35 percent corporate income tax. So the real tax rate for people like Mitt Romney is closer to 45 percent. And if you add the death tax to the equation, the effective tax rate begins to approach 60 percent.
Here's a simply analogy. Imagine you make $50,000 per year and your employer withholds $5,000 for personal income tax. How would you feel if the IRS then told you that your income was $45,000 and you had to pay full tax on that amount, and that you weren't allowed to count the $5,000 withholding when you filled out your 1040 form? You would be outraged, correctly yelling and screaming that you should be allowed to count those withheld tax payments.
Welcome to the world of double taxation.
The Obama approach is also bad economics. Every economic theory — even socialism and Marxism — agrees that saving and investment are the key to long-run growth and higher living standards. So does it make sense to deprive the economy of productive capital by imposing punitive layers of double taxation? To make matters worse, double taxation means transferring the money to the buffoons in Washington, where it will be squandered on inefficient and wasteful programs.
Europe's welfare states are on the brink of collapse because they adopted the mentality that government spending was better than private saving and investment. Should we copy their failures?
The right way to ensure both fairness and growth is the flat tax. Get rid of the 72,000 pages of corruption and complexity in the Internal Revenue Service code and replace it with a postcard-sized flat tax. One low tax rate with no double taxation. That's good for the economy and competitiveness.
And if Mitt Romney makes 100,000 times more than me, he'll pay 100,000 times more in tax.

Education Silver Lining in ObamaCare Decision?

Posted by Neal McCluskey at http://www.cato-at-liberty.org/education-silver-lining-in-obamacare-decision/


After having my brain twisted into a pretzel reading yesterday’s ObamaCare decision, I was as disturbed as anyone. I mean, I had spent most of my life thinking I knew the difference between a “penalty” and a “tax,” and it turns out I was just fooling myself. Not to get too existentialist about this, but it has really made me question whether anything I think is real truly is.
Anyway, I eventually discovered what might be a small silver lining in the ruling, at least for education: the Medicaid section might have begun to place some, very nebulous, boundary on the ability of the federal government to bribe states into adopting federal rules. That has been the primary mode by which Washington has taken over elementary and secondary education—think No Child Left Behind, Race to the Top, No Child Left Behind waivers—and this ruling says there is a constitutional limit to what the federal government can do to coerce state action though spending.
Essentially, whether or not Spending Clause coercion is unconstitutional depends on whether it constitutes “undue influence” on states. For Chief Justice Roberts, that line was crossed when the Feds changed the rules for Medicaid and threatened states with the loss of all their funding if they didn’t follow the new strictures.
Obviously this doesn’t give us anything approaching a bright line on the limits to Spending Clause use. Such a limit surely can be found—no spending is allowed not connected to one of the specific, enumerated powers given to Washington by the Constitution—but Roberts writes that “Congress can use [Spending Clause] power to implement federal policy it could not impose directly under the enumerated powers.”
So why bother with enumerated powers? Got me…
Addressing education directly, the conservative justices noted that compared to Medicaid, federal education funding is a relatively small share of total spending, casting doubt on how applicable the ruling might be. In contrast, it was very gratifying to see those justices make a point I’ve made repeatedly, especially when discussing the absurd assertion that adopting national curriculum standards has been voluntary. Even if adoption were technically voluntary for states, taxpayers in those states have had no choice about paying the taxes that fund multi-billion-dollar carrots such as Race to the Top. Indeed, the conservatives write, were a state to fail to meet conditions attached to Spending Clause bucks, not only would it lose access to federal funds, it would likely have to raise its own taxes to make up for the shortfall, taxes that “would come on top of federal taxes already paid by the State’s citizens” for the spurned federal program.
The teensy bit of good news out of this ruling is that there is some limit to how coercive Washington can be under the Spending Clause, the clause that has been the linchpin of federal education policy. Unfortunately, the new problem is that were the Spending Clause avenue eventually cut off, Congress could probably just threaten the residents of recalcitrant states with some sort of financial penalty…er…tax. I mean, penalty…
Oh, my existentialist crisis!

Health Care Ruling: A Strange Constitutional Win

by Randy Barnett at http://www.cato.org/publications/commentary/health-care-ruling-strange-constitutional-win

Who would have thought we could win our Commerce Clause challenge while the Affordable Care Act is upheld?

Thursday, the Roberts court vindicated all of our arguments about why the individual insurance mandate exceeded the commerce power: "The individual mandate cannot be upheld as an exercise of Congress's power under the Commerce Clause," wrote Chief Justice John Roberts. "That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it." Then the court went further to invalidate the health care law's withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.
By rewriting the law to make it a "tax," however, the court has now thrown Obamacare into the political process. The people will decide at the ballot box whether this so-called "tax" will stand.
Just as important, the people will decide whether future Supreme Court nominees will pledge to enforce the Constitution's restrictions on the power of Congress. Regardless of whether Roberts switched his vote in response to the enormous pressure brought to bear on him by President Obama, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and the entire progressive establishment, future nominees to the Supreme Court must be vetted to ensure they have the character to stand against the intense political pressure to uphold unconstitutional acts of Congress.
Though the ultimate disposition of the case was disappointing, today could become a turning point of constitutional law, so long as the public maintains its current level of interest in the constitutional limits on congressional power that have been affirmed by the court. To see why, we need to step back.
In the early 1930s, a Democratic president and Congress were swept into power to do something about an economic catastrophe. Not letting an economic crisis go to waste, they enacted sweeping legislation that greatly expanded the Commerce power of Congress beyond the its constitutional limits as they had been interpreted for 150 years. The court's eventual acquiescence to these new powers have shaped our understanding of federal power ever since.
In 2009, history seemed on its way to repeating. Swept into office during a financial panic, a Democratic president and supermajority Democratic Congress tried using another crisis to achieve the long-standing progressive dream of putting the national government in control of the medical care of all Americans.
The result was quite different this time, though. Instead of reshaping the nation as in the 1930s, Democrats were swept right back out of power in the next election.
The American public wanted action during the Great Depression, and there is little evidence it was much interested in constitutional questions. But in 2009 and 2010, millions demanded a return to our written Constitution with its scheme of limited and enumerated powers. The election of a Congress hostile to President Obama's health care law, and of state officials willing to challenge it in court, has resulted in an epic national constitutional debate and this week's ruling affirming that Commerce and Spending Clause have real limits.
In November, the American people will have the opportunity to renew their commitment to their written Constitution by insisting on a president who will nominate and a Senate who will confirm constitutionally conservative justices who won't wilt under fire — justices who will hold Congresses of both parties to the limits prescribed in the Constitution.
Constitutional turning points have occurred before in America, and sometimes in cases where the apparently losing side went on to be history's winner. It can happen again. Today is only the beginning.

Health Law a Loser despite Court Victory

by Michael F. Cannon at http://www.cato.org/publications/commentary/health-law-loser-despite-court-victory

Unfortunately for supporters of President Obama’s health law, yesterday’s Supreme Court ruling does nothing to validate or lend the law legitimacy. Half of the ruling was a clear defeat for “Obamacare.” And the portion that supporters are hailing as a victory will prove hollow.

The court invalidated a key part of the Obama health law designed to expand health insurance coverage. Each state has a Medicaid program that provides health insurance to the poor (among others). Federal grants to states cover 56 percent of overall Medicaid spending. That comes to an average 12 percent of a state’s entire budget.
The Obama health law threatened to withhold the federal share of Medicaid funding — which amounts to hundreds of billions of dollars over a 10-year period — unless states dramatically expanded their programs. A Cato Institute colleague estimates that, for example, this mandate would cost New Jersey taxpayers $35 billion and New Yorkers $52 billion over the next 10 years. This mandate was so expensive that 26 states sued to block it.
The Supreme Court agreed. Though the particulars of the ruling will take some time to sort out, the court told states they can refuse to expand their Medicaid programs without sacrificing their existing Medicaid funding. It is difficult to interpret that holding as anything but a defeat for the Obama health law.
And while supporters hail the court’s refusal to strike down the law’s “individual mandate” requiring Americans to purchase a private health insurance plan, it is not the case that the court affirmed that mandate as constitutional.
During congressional debate, supporters of this law claimed that the individual mandate was an exercise of Congress’ power to regulate commerce. Congress and the president swore up and down that the mandate was not a tax, because calling it a tax would have doomed the entire law. The statute frames the mandate as grounded in the Commerce Clause of the Constitution, and refers to the penalty for non-compliance as a “penalty” — not a tax. States and a handful of citizens filed suit against the mandate because forcing people to purchase a private product is not regulating commerce but compelling commerce.
Again, the court agreed. The justices ruled 5-4 that requiring citizens to purchase health insurance is not a valid use of the Commerce Power. But in a truly bizarre twist, they held that the mandate could be justified as a use of Congress’ taxing power. The split decision came about because Chief Justice John Roberts sided with the court’s conservatives on the commerce power question, but flipped his vote on the taxing power question. As a result, the court upheld the individual mandate as a valid use of the very taxing power that Congress swore it was not using.
What Congress said the individual mandate is — an exercise of the Commerce Power — the court said is not constitutional. But what Congress said the mandate is not — an exercise of the Taxing Power — the court ruled is constitutional. Everybody got that?
This ruling has created two enormous problems for American democracy and the rule of law.
First, Roberts’ flip-flop means the Supreme Court just upheld a law that Congress did not pass and never would have passed. If Congress had called the mandate a tax, the law never would have reached the president’s desk.
Second, the Supreme Court just told Congress it is okay to lie to the people in order to get a bill passed. As a result of this ruling, a future Congress could enact a broccoli mandate by saying, “Don’t worry, this isn’t a tax. We’re using our power to regulate commerce. And we’re sure the Supreme Court will agree with us this time.”
The Obama health law can’t take many more victories like this.

Where Justices Fail, Voters Can Step In

by Trevor Burrus at http://www.cato.org/publications/commentary/where-justices-fail-voters-can-step

Today, when the Supreme Court upheld the individual mandate as an exercise of the taxing power, Chief Justice Roberts’s political acumen and self-proclaimed “judicial minimalism” was on full display. During his confirmation hearing, Roberts famously described his view of justices as “umpires” who should “call balls and strikes.” Today, however, Roberts missed a wild pitch.

The Chief Justice thought he was giving something to both sides. By fully endorsing the argument that Congress cannot compel commerce in order to regulate it, and even bringing up the fabled possibility of a “broccoli mandate,” defenders of strict limits on the Commerce Clause were vindicated. But by justifying the individual mandate under the taxing power, the Chief Justice was able to avoid the possible imbroglio that could have resulted if an “activist” Court struck down a major piece of legislation.
But would there have been such a backlash? Unquestionably, law professors and left-leaning legal pundits would have excoriated the Court for acting politically rather than legally. Unquestionably, there would have been charges that the justices should be impeached, or that President Obama should propose a court-packing plan similar to the plan proposed by President Franklin D. Roosevelt to chastise a recalcitrant Court that was bold enough to believe the Constitution should be enforced. But would the American people have been angry?
The Affordable Care Act is quite unpopular. Some don’t like it because it doesn’t go far enough and set up a single-payer. Some don’t like it because it goes too far toward a single-payer system. There are still others who think the law is a good idea but unconstitutional. Striking down all or part of the Act would not have upset more than half of the American people.
Those same Americans should now make their voices heard and call for Congress to repeal the law. Today, the Court informed us that, unbeknownst to the people, Congress, or even the president, the Affordable Care Act contains a significant tax hike. Congress intentionally hid the true costs of the law from the American people by creatively drafting it so the individual costs—i.e. the money spent by people being compelled to purchase health insurance—were not included in the total cost estimates. This type of legislative legerdemain is not only unconscionable, it is unconstitutional. The Statement and Account Clause requires Congress to regularly publish “receipts and expenditures of public money.”
Perhaps the best thing to come out of the decision is a renewed interest in the Constitution and the fact that the federal government, as it was originally conceived, is strictly limited in its powers. We now know that the Court is not going to enforce those limits, but the voters can.

ObamaCare Lost on the Medicaid Mandate & Commerce Power, it May Yet Lose on the Tax Power

Posted by Michael F. Cannon at http://www.cato-at-liberty.org/obamacare-lost-on-the-medicaid-mandate-commerce-power-it-may-yet-lose-on-the-tax-power/


Supporters of the Obama health law are incorrectly reading the Supreme Court’s ruling as a victory.
First, the ruling severely limited the Obama health law’s Medicaid expansion, effectively giving states the green light to refuse to expand their Medicaid programs. Coupled with the fact that the statute already enables states to block the other half-trillion dollars of new entitlement spending, the law is in a very precarious position.
Second, the Court ruled 5-4 that the individual mandate is not a legitimate use of the Commerce Power. That too is a defeat for the government, even if it is of no immediate consequence.
Third, while the Court upheld the individual mandate as a tax, that ruling may be vulnerable to legal challenge.
Chief Justice Roberts wrote, “The Federal Government ‘is acknowledged by all to be one of enumerated powers.,’” and, “The Constitution’s express conferral of some powersmakes clear that it does not grant others.” So it is interesting that Roberts did not specify exactly what type of constitutionally authorized tax the mandate is.
As Cato chairman Bob Levy wrote in 2011, that’s not an easy thing to do:

Assume, however, the Supreme Court ultimately disagrees and finds that the penalty for not purchasing health insurance is indeed a tax. Nevertheless, say opponents of PPACA, the tax would be unconstitutional. They underscore that taxes are of three types—income, excise, or direct. Each type must meet specified constitutional constraints. Because the mandate penalty under PPACA does not satisfy any of the constraints, it is not a valid tax.
Income taxes, authorized by the Sixteenth Amendment, must (by definition) be triggered by income. Yet the mandate penalty is triggered by the nonpurchase of insurance. Except for an exemption available to low-income families, the amount of the penalty depends on age, family size, geographic location, and smoking status. So the penalty is not an income tax.
Excise taxes are assessed on selected transactions. Because the penalty arises from a nontransaction, perhaps it qualifies as a reverse excise tax. If so, it has to be uniform across the country (U.S. Const., Art. I, sec. 8). But the penalty varies by location, so it cannot be a constitutional excise tax.
Direct taxes are assessed on persons or their property. Because the penalty is imposed on nonownership of property, perhaps it could be classified as a reverse direct tax. But direct taxes must be apportioned among the states by population (U.S. Const., Art. I, sec. 2). The mandate penalty is assessed on individuals without regard to any state’s population. Hence, it is not a lawful direct tax.

On the last point, Roberts agreed: ”A tax on going without health insurance does not fall within any recognized category of direct tax.” But then what kind of constitutionally authorized tax is it?
The dissent suggests the Court has given this issue scant attention:

Finally, we must observe that rewriting [the mandate] as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that [the mandate] is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue…At oral argument, the most prolonged statement about the issue was just over 50 words…One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

There is even less discussion about what type of constitutionally authorized tax the mandate is.
I’m not a lawyer. But it seems to me there may be room here for the same individual citizens who brought this case to again file suit against the federal government for trying to impose an unconstitutional tax. It may seem unlikely that Roberts would reverse himself on the Tax Power issue. Then again, since he never specified what type of constitutionally permissible tax the mandate is, perhaps voting to strike the mandate would not be reversing himself.

'A Republic — If You Can Keep It'

by Michael D. Tanner at http://www.cato.org/publications/commentary/republic-you-can-keep-it

Yesterday’s Supreme Court decision to uphold the ObamaCare law’s individual-health-insurance mandate is far more complex than all the initial cheers and jeers suggest. Here are five things to take away from the ruling:

The president and Congress lied, but the justices aren’t the truth police. In holding that the individual mandate is a tax, the court directly contradicted President Obama and Democrats in Congress, who’d argued vociferously that it wasn’t. The president, recall, told ABC’s George Stephanopolis it “is absolutely not a tax increase.” But this ruling says that it is indeed a tax — in fact, a huge tax hike on the middle class.
The court, or at least Chief Justice John Roberts, took the somewhat cynical (or maybe reasonable) view that what politicians say is pretty much meaningless.
Yet how will average Americans react? The partisans are obvious: Those who love ObamaCare will be fine with another tax to help implement it; those who oppose it will find the tax one more reason to hate it.
But how angry will this example of political dishonesty make those in the middle?
The broccoli police aren’t coming — yet. Opponents of big government can take a small comfort from the fact that the court rejected the idea that the mandate was permissible under the Constitution’s Commerce Clause. It agreed with ObamaCare opponents that choosing not to buy a product is not an action that “substantially affects interstate commerce.”
This avoids a precedent that could’ve justified a wide range of government intervention in our lives. (The common shorthand for this was “a mandate that every American eat broccoli.”) The court thus seemed to acknowledge that there are some limits to federal power.
True, this may be a distinction without a difference: Congress can now apparently achieve many of the same things via its taxing power. But taxes are far more politically problematic than regulatory actions.
We’ll have to see how it plays out.
Federalism lives. A lower-profile part of the ruling was an important victory for state’s rights: The justices found (by 7-2) that the federal government can’t force states to expand their Medicaid programs by threatening to withhold all Medicaid funding from states that don’t comply.
The feds are to provide some new funds to help offset the expansion’s costs, but many states believe that funding would fall far short, leaving state taxpayers on the hook. E.g., some estimates suggest the Medicaid expansion could cost New York taxpayers $52 billion over the next 10 years.
But the court shot the “blackmail” down. Congress can withhold the new funds from states that don’t use the cash as Congress intended, but can’t strip a state of all its Medicaid funding if it doesn’t agree to the new requirements.
Congress has long used its control over the purse strings to impose its will on states. This decision limits that authority. For advocates of federalism, that’s a big win.
“Constitutional” doesn’t mean “wise.” As the chief justice wrote in his opinion, “Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them.”
ObamaCare is constitutional, but all the problems with the law remain: It still increases federal spending, taxes and debt. It still imposes fresh burdens on struggling businesses, making it harder for them to grow and hire new workers. It still drives up the cost of health insurance, especially for the young and healthy, and it still puts in place structures that will almost inevitably lead to the rationing of care.
“A republic, if you can keep it.” That Benjamin Franklin comment at the original Constitutional Convention sums up where the court has left us. The fight now turns to the political arena, not just with renewed Republican efforts to repeal the health-care law, but also with a debate over the larger issue of government power.
The court, not unlike Franklin, has said that it’s ultimately up to the nation’s citizenry to protect themselves from the dangers of big government. As Roberts wrote, “It is not our job to protect the people from the consequences of their political choices.”
The ball is now clearly in our court. If the court isn’t going to protect us from government overreach, the American people must be all the more vigilant.

Court's Ruling a Frankenstein's Monster

by Ilya Shapiro at http://www.cato.org/publications/commentary/courts-ruling-frankensteins-monster

Today's heart-wrenching, baby-splitting Supreme Court decision illegitimately rewrote the Affordable Care Act in order to save it. It's certainly gratifying that a majority on the court rejected the government's dangerous assertion of power to require people to engage in economic activity in order to then regulate that activity.

That vindicates everything that we who have been leading the constitutional challenge have been saying: The government cannot regulate inactivity. It cannot, as Chief Justice John Roberts put it in summarizing his opinion from the bench, regulate mere existence.
Justifying the individual mandate under the taxing power of Congress, however, in no way rehabilitates the government's constitutional excesses. As Justice Anthony Kennedy said in summarizing his four-justice dissent, "Structure means liberty." If Congress can avoid the Constitution's structural limits simply by "taxing" anything it doesn't like, its power is no more limited than it would be had it done so under the Commerce Clause.
While imposing new taxes may be politically unpopular and therefore harder to do than creating new regulations, that political check does not obviate constitutional ones — and in any event, Congress had avoided even that political gauntlet here by explicitly structuring the individual mandate as a commercial regulation.
Nor does the Supreme Court vindicate its constitutional legerdemain by rewriting the Medicaid expansion to tie only new federal funding to an acceptance of burdensome and fundamentally transformative regulations. While correct on its face — and a good exposition of the spending power and what strings the federal government can attach to its funds — that analysis is relevant to a hypothetical statute, not the one that Congress actually passed when it passed health care reform legislation.
Moreover, allowing states to opt out of the new Medicaid regime while leaving the rest of Obamacare in place throws the insurance market into disarray, increases costs to individuals, and gives states a Hobson's choice — different but no less tragic than the one it previously faced. As Kennedy wrote in dissent, while purporting to apply judicial modesty or restraint, the court's rewriting of the law is anything but restrained or modest.
In short, we have reaped the fruits of two poisonous trees of constitutional jurisprudence: On the one (liberal activist) hand, there are no judicially administrable limits on federal power. On the other (conservative pacifist) one, we must defer to Congress and presume (or construe) its legislation to be constitutional. It is that tired old framework — with four justices in the former category and one in the latter — that produced the Frankenstein's Monster of today's ruling.
What judges should be doing instead is applying the Constitution, no matter whether that leads to upholding or striking down legislation. And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.
In any event, the ball now shifts to another court, that of the people — the ultimate sovereigns who, in ratifying the Constitution, delegated certain limited powers to the federal government. Many have opposed Obamacare all along and it is they who must now decide — or not — to rein in the out-of-control government whose unconstitutional actions have taken us to the brink of economic disaster.

John Roberts, Judicial Pacifist

by Ilya Shapiro at http://www.cato.org/publications/commentary/john-roberts-judicial-pacifist

The Supreme Court's health-care ruling displayed an unfortunate convergence of two unholy strains of constitutional jurisprudence: liberal activism and conservative pacifism.

Liberal activism, typified by the four Democratic-appointed justices, finds in the Constitution no judicially administrable limits on federal power. Conservative pacifism, a knee-jerk reaction to the liberal activism of the 1960s and '70s, argues that we must defer to Congress as much as possible, presuming its legislation to be constitutional.
Neither approach considers that the Constitution's structural provisions — federalism, separation and enumeration of powers, checks and balances — aren't just a dry exercise in political theory, but a means to protect individual liberty against the concentrated power of popular majorities.
So, to avoid overturning the Affordable Care Act, Chief Justice John Roberts rewrote two important parts of it, turning the individual mandate into a tax and reworking the Medicaid expansion. Ever the good conservative, Roberts was attempting to show judicial "restraint."
Frankenstein's monster
Unfortunately, he failed on his own terms. As four justices wrote in a joint dissent, "The court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect."
The chief justice's immodest pacifism, combined with the activism of the four liberal justices, created the Frankenstein's monster that was Thursday's decision.
It's certainly gratifying that a majority of the justices — Roberts and the other four Republican appointees — rejected the government's dangerous assertion of the power to compel commerce in order to regulate it. That at least vindicates those of us who led the constitutional challenge to the law on the grounds that the government cannot regulate inactivity — in this case, those declining to purchase health insurance. Congress' power to regulate interstate commerce is not, as Roberts wrote, "a general license to regulate an individual from cradle to grave."
Justifying the individual mandate to buy insurance under the taxing power, however, does not rehabilitate the government's constitutional excesses. As Justice Anthony Kennedy said in summarizing the joint dissent from the bench, "Structure means liberty." If Congress can avoid the Constitution's structural limits by simply "taxing" inactivity, its power is no more limited than if it were allowed to regulate at will under the Commerce Clause.
The court also rewrote the law's Medicaid expansion so that states stand to lose only new federal funding — instead of all their funding under the program — if they do not accept burdensome and transformative new regulations. While the court is correct in its analysis of the government's spending power and the strings it can attach to funding, its ruling here is relevant only to a hypothetical statute, not the one Congress actually passed.
Moreover, allowing states to opt out of the new Medicaid regime while leaving the rest of the law in place will throw the insurance market into disarray, increase costs for individuals, and give the states a Hobson's choice between two undesirable alternatives — a different but no less unfair circumstance than the one they originally faced under the law.
A dark day
In short, liberal activism and conservative pacifism suspended their tired debate just long enough to agree on a decision that, while not without its bright spots, marks a dark day for constitutional governance.
The high court and the rest of the judiciary should instead be applying the Constitution regardless of whether it leads to upholding or striking down legislation. And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.
Now the ball is in another court, that of the people — those who, in ratifying the Constitution, delegated certain limited powers to the federal government. They have opposed Obamacare all along, and now they must rein in the government whose unconstitutional actions have taken us to the brink of economic disaster.

We Won Everything but the Case

by Ilya Shapiro at http://www.cato.org/publications/commentary/we-won-everything-case

I could never have imagined that the Supreme Court's ringing endorsement of the legal theory I'd pushed for more than two years could feel this hollow. That is, five justices agreed in no uncertain terms that the federal government cannot require people to buy something, cannot regulate inactivity, cannot impose economic mandates as a means of regulating interstate commerce. And yet, Obamacare stands.

The Court adopted the "frivolous" legal argument "concocted" by David Rivkin and Randy Barnett that there are judicially enforceable limits on federal regulatory authority over national economic affairs. It vindicated the "political opportunism" of Virginia Attorney General Ken Cuccinelli and then-Florida Attorney General Bill McCollum to file "sour grapes" lawsuits challenging the Affordable Care Act the same day President Obama signed the law. And yet, Obamacare stands.
Indeed, with the possible exception of Florida district judge Roger Vinson — whose magisterial opinion Cato put on the front page of its March/April 2011 Policy Report — the Supreme Court went farther than any lower court that ruled against the government. Not only did the Court for the first time endorse the activity/inactivity and regulate/mandate distinctions that our opponents derided as appearing "nowhere in the Constitution" but seven justices found the Medicaid expansion unconstitutionally coercive of state sovereignty. And yet, Obamacare stands.
How did this happen? Well, as even Fox News and CNN now know, Chief Justice John Roberts put a new gloss on Congress's taxing power just as he rediscovered the meaning of the Commerce, Necessary and Proper, and Spending Clauses. In 13 cryptic pages, Roberts fashioned a not-quite-silk purse out of a sow's ear, salvaging — to continue the porcine metaphor — Obamacare's bacon from the constitutional flames.
That is, the Chief Justice recharacterized a provision explicitly stating that people "shall" obtain health insurance or pay a "penalty" into a "choice," a "tax citizens may lawfully choose to pay in lieu of buying health insurance."
I wonder whether this means that the next time I'm driving I should consider whether to obey the speed limit or simply pay the "speeding tax." Surely I'll spend less time pondering that "choice" than the one a mugger would give me regarding my money or my life.
In any event, Roberts went on to cabin his taxing-power justification in such a way as to make it seem that this ticket would be good only for this train: the tax (if one chooses to pay it) is not so burdensome as to be punitive, is enforced through normal tax-collection means (with no threat of criminal sanctions), and merely encourages rather than requires certain behavior.
Moreover, this voluntary unicorn-like tax is not a "direct" tax — which the Constitution says must be drawn such that each state pays in proportion to its population — because it's neither a tax on property nor a "capitation" (defined as "a tax that everyone must pay simply for existing"). Instead, Roberts explains, this novel tax is triggered by a specific circumstance: "earning a certain amount of income but not obtaining health insurance."
I guess that means it's not an income tax — where income itself is the trigger and sole basis for assessment — which leaves, among the exactions the Constitution authorizes only excises. (We can all agree that the non-punitive indirect voluntary tax incentive isn't a "duty" or "impost.")
But excises are taxes on a use of property, a transaction, privilege, or activity, and here Roberts has already recognized there's no property, transaction, or activity involved. You just have this condition — not owning health insurance — that triggers the tax. Does that mean that being free from a government command ("shall") to buy health insurance is a privilege?
I don't think that's what the Chief Justice meant at all, and I'm not trying to be cute. The point is that the opinion's taxing-power section is a complete head-scratcher. Even Justice Ruth Bader Ginsburg, who was skeptical about the taxing-power theory during oral arguments, expressed some disbelief at Roberts's theory in orally summarizing her partial dissent on behalf of the no-limits-on-federal-power bloc.
Quite beyond the direct/indirect/excise/whatever tax issue, it seems odd to have a result whereby Congress cannot make you buy something but can tax you for not buying it. As Roberts himself wrote, "If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something."
Remember, we're not talking tax credits for installing solar panels — an incentive — as an alternative to a solar-panel mandate, but rather tax debits for not installing them. And that's after you suspend disbelief and hypothesize that Congress had actually structured its "minimum coverage provision" as a tax rather than regulation-plus-penalty.
Nevertheless we're left with a definitive ruling that Congress can't make you buy broccoli — Roberts was clear on that, explicitly rejecting the government's pooh-poohing of that infamous hypothetical — but can tax you for not buying broccoli. That's a constitutional distinction without a practical difference.
Where there may be a practical difference is in the fact that enacting new taxes — particularly for not buying things — is typically more difficult than creating new regulations. But that practical check does not obviate the constitutional ones that should be there: we don't trust our liberties to a political majority's sense of noblesse oblige. Indeed, the judiciary is by definition a counter-majoritarian institution.
And, of course, in this particular case, Congress and the president avoided even running that political gauntlet by explicitly disavowing any attempts to characterize Obamacare as raising taxes on the middle class.
Nor did John Roberts vindicate his constitutional legerdemain by rewriting the Medicaid expansion to tie only new federal funding to an acceptance of burdensome and fundamentally transformative regulations. While correct on its face — and a good exposition of the Spending Clause and what strings the federal government can attach to its funds — his analysis on that point is relevant only to a hypothetical statute, not the one that Congress actually passed.
In sum, we take away from NFIB v. Sebelius the comfort that the federal regulatory authority recognized in Wickard and Raich has not been expanded and that the federal government can't compel states to do its bidding. The size and warmth of that comfort will be determined in future cases, which will come when Congress inevitably again pushes the envelope of its enumerated powers.
But is federal overreach inevitable? Will the people ever rein in their elected representatives — or, more fundamentally, the temptation to demand goodies from the public fisc. That's the ultimate question left by the baby-splitting of a chief justice who, after doing so much good work, ultimately refused the charge given him by his model, Chief Justice John Marshall, to say what the law is.
"It is not our job to protect the people," Roberts wrote, "from the consequences of their political choices."
Ok, then, people, the ball is in your court: How much longer will you allow Obamacare and other offenses against the Constitution and good sense to stand?