I Fear We’ve Awakened a Dragon

clip_image002

The above quote is from Fleet Admiral Isoroku Yamamoto upon the bombing of Pearl Harbor.

Chief Justice John Roberts sided with the conservatives in saying that the individual mandate was not justified under the Commerce Clause (i.e., Congress may not compel commerce in order to regulate it[1]), nor under the Necessary and Proper Clause (i.e., a provision of law cannot be self-legitimized because it is “necessary and proper” to carry-out other portions of the law[2]). He then switched sides and found with the liberals on the Court that the mandate can be construed as a tax – something every Democrat vehemently denied (they knew it would not pass as a new tax). “Be­cause ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,’ Hooper v California, 155 US 648, 657, the question is whether it is ‘fairly possible’ to interpret the mandate as imposing such a tax, Crowell v Benson, 285 US 22, 62. Pp. 31-32[3].” A 5-4 majority held that such an interpretation is possible[4].

This will surprise some who know me, but I agree with the Court – I don’t like the decision, but they followed the Constitution. Mr Chief Justice Roberts shot down the fantasy that Congress can create commerce disguised as regulation, reasoning that it would give Congress unlimited power to dictate behavior. Likewise, he would not allow a provision to be deemed necessary and proper that wasn’t rooted in an existing precedent. And he faithfully upheld the principle that a law must be examined from all reasonable angles before declaring it unconstitutional.

Clearly the Chief Justice doesn’t like this law, as he wrote, “It is not our job to protect the people from the consequences of their political choices[5];” but equally clearly, he couldn’t let that color his duty, as he quotes John Marshall’s observation that, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional[6].” Mr Chief Justice Roberts has forever answered his critics that he is a political zealot.

Writing for a 7-2 majority (Justices Ginsberg and Sotomayor dissenting), Mr Chief Justice Roberts explains the reversal of the Medicaid expansion provision punishing the states for non-compliance by revoking all of its Medicaid funding[7]. The Chief Justice writes, “The Spending Clause grants Congress the power ‘to pay the Debts and provide for the … general Welfare of the United States’ (Article I, Section 8, Clause 1). Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs (Pennhurst State School and Hospital v Halderman). The Constitu­tion simply does not give Congress the authority to require the States to regulate (New York v United States). When Congress threatens to terminate other grants as a means of pressur­ing the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism[8].”

Section 1396c of the Patient Protection and Affordable Care Act gives the Secretary of Health and Human Ser­vices the authority to penalize States that choose not to participate in the Medicaid expansion[9] by taking away their existing Medicaid fund­ing. The threatened loss of over 10% of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion. By redefining eligibility as those earning 133% of the poverty level – by definition, non-poor and open to all – this expansion accomplishes a shift in kind, not merely degree[10]. The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the ex­pansion, while threatening only the federal funds meant to reimburse the States for the expansion itself[11].

The practical impact of this ruling is that the States may merely opt-out of the Medicaid expansion while only sacrificing the three years’ worth of reimbursement included in the Act. Here, too, the Chief Justice held to a conservative principle that the Constitution means what it says – that we are a federalist system of government of limited powers.

While I hate the results, I admire the process. As the Chief Justice noted, neither the Constitution nor the Court is responsible for the political choices of the people – we got what we paid for. While the Act itself was forced onto the people against their popular will and without a single Republican vote, it can be construed to be constitutional, as amended (the reworking of §1396c to be done by Congress), and that is thanks to the only honest players in the whole ObamaCare debacle – that “unelected group” of Justices.


[1] National Federation of Independent Business, et al v Sebelius, et al, Opinion of Chief Justice Roberts, pp. 16-27.

[2] National Federation of Independent Business, et al v Sebelius, et al, Opinion of Chief Justice Roberts, pp. 11-15.

[3] National Federation of Independent Business, et al v Sebelius, et al, Syllabus, pp. 3-4.

[4] National Federation of Independent Business, et al v Sebelius, et al, Opinion of Chief Justice Roberts, pp. 33-44.

[5] National Federation of Independent Business, et al v Sebelius, et al, Syllabus, p. 6.

[6] Chief Justice John Marshall, A Friend of the Constitution Number V, in Alexandria Gazette, July 5 1819, quoted at, National Federation of Independent Business, et al v Sebelius, et al, Opinion of Chief Justice John Roberts, p. 6.

[7] National Federation of Independent Business, et al v Sebelius, et al, Opinion of Chief Justice John Roberts, pp. 45-58.

[8] National Federation of Independent Business, et al v Sebelius, et al, Syllabus, p. 5.

[9] Medicaid currently offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care.

[10] National Federation of Independent Business, et al v Sebelius, et al, Opinion of Chief Justice Roberts, pp. 51-55.

[11] Ibid.

a President in Short Pants

clip_image001

Jay Carney, spokesman for the “Mommie, Georgie started it!” administration, has now fallen back to blaming Fast and Furious on George Bush. “Actually, Fast and Furious is just an extension of a program started by the last administration,” Mr Carney blurted out on Thursday. He was referring to Operation Wide Receiver, which was tried and stopped because it was unworkable. When ATF shut the program down, the lead agent wrote across the top of the file “Never Again!” So, to use Mr Carney’s style, actually, Fast and Furious ignores the lessons of the Bush administration.

If you buy into this administration’s rhetoric, everything bad is George Bush’s/the Republicans’ fault, and everything good is President Obama’s doing. The message, of course, is that Republicans are the most potent political force in history. They alone are able to thwart the 3½ year effort of a president and (for two of those years) a Democrat Congress in giving America the liberal utopia that was promised. An amazing admission of impotence.

Also very childish.

We should have known. In the first of two autobiographies written by this 51-year-old, Dreams From My Father, the central figures that formed his personality were made up out of whole cloth. All of the childhood friends, the radicals he hung with in college, the girlfriend at Columbia, all of them, were “composites of actual people.” This man can’t even write his own brief history without resorting to fiction. Little wonder the truth mystifies him as president.

But he “got” Osama bin Laden; an achievement that should have been blamed on the previous administration, as the intelligence cycle that gave us his location was largely husbanded by the Bush administration, starting with the waterboarding of Khalid Sheikh Mohammed in 2003 at a CIA black site in Poland. The flood of leaks, compromising clandestine operations, operatives in the field, foreign agents, sources and methods is nothing short of a shameful abandonment of duty for personal gain. Look for pictures of the bin Laden kill to be leaked before the election.

Arizona will be decided next week. ObamaCare will be decided next week. And the hiding of DoJ documents behind executive privilege will be in court next week. It’ll be interesting to see if the president can find his Big Boy Pants, or if it will all be the fault of the omnipotent Republicans again.

Desperation Politics

clip_image002

It is an article of faith in the intelligence community that you will be known by your failures, because your successes will remain secret – unless, apparently, your president considers his re-election to be more important than your safety.

In this latest brouhaha, we can even rule out a political witch hunt because both the House and Senate Intelligence Committee Chairs – one a Republican and the other a Democrat – have held press conferences decrying the serial exposure of clandestine operations taking place. So the leaks are real.

The public debate is about who the leaker is. Normally, leaks emanate from disgruntled intelligence or defense personnel, but this doesn’t seem to be the case here, as the leaks aren’t aimed at the administration, they tend to benefit it. Starting with the hemorrhaging of details relating to the bin Laden kill – it’s like the high school kid who had sex with the hot English teacher. This is obviously a situation best kept secret, but he can’t resist telling all his buddies about it. The explosion of information about the Abottabad raid was unprecedented, culminating with giving a movie producer access to SEAL Team Six for making a movie about the raid (and implicating the doctor who helped confirm the identity of bin Laden’s body).

Next, we hear about how weekly meetings (known internally as “Terror Tuesdays”) where the president poured over a list of terrorists to decide which one to kill that week. The New York Times story painted a picture of Mr Obama conferring with intelligence and security officers over the pros and cons of each name on the “Kill List,” after which he would authorize a kill. As there was little if any new information contained in the story, it seemed more a White House handout than a news story.

Then we hear, in excruciating detail, how the intelligence cycle works to target al Qaeda leaders in Yemen. Ostensibly a story about how we found and hit Anwar al-Awlaki, the American-born Islamist cleric who served as an inspirational leader for the jihad and a voice into the West, it exposed an enormous amount of information as to how we develop local agents, transmit information, and trace movements in that remote region of the Middle East. Again, more information than the story needed, but all aimed at showing just how thoroughly this administration was prosecuting the war on terror.

We then totally compromised a double agent who helped sneak a non-metallic bomb out of Yemen, the product of al Qaeda’s premier bombmaker, in order to highlight how effective our policies are.

All of the above are examples that could only have been leaked by those close to the decision-makers – they all included information outside the realm of mere planners or operators. The last straw, however, was the release of David Sanger’s book, Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power, which laid bare America’s and Israel’s involvement in the preparation and deployment of the Stuxnet worm that ravaged Iran’s enrichment facilities at Natanz. The degree of detail, quotes from principles, and the timeline involved leaves little doubt – this information came from the White House: West Wingers and national command authority people were the only ones in the room when these conversations took place. This was the story that bought the committee chairmen to the microphone to complain.

This series of leaks is nothing more than placing the president’s re-election above any consideration of national security, safety of clandestine officers in the field, or the sensibilities of our allies. It represents the sophomoric acts of an egotistical amateur in charge of instruments far more profound than his ability to utilize them.

Krugman Never Disappoints

clip_image002

In an astonishing escape from rational thinking, New York Times columnist Paul Krugman has called for President/Candidate Obama to promise a grand new stimulus package to ring in his second term. “Borrowed money has never been cheaper!” Kurgman exudes.

I hope the Democrats listen to him. That would put the election exactly where it should be: big government v the American people.

I put it that way because every power we give to government is freedom lost, and in view of Washington’s most recent economic activity, that should be the last place from which to expect prudence, let alone wisdom, to emanate.

What growth we have is now clearly in spite, not because, of government policies. A recovery is fueled by business, which has been in the crosshairs of this administration since January 2009. It’s obvious that this president detests capitalism, and that should be a key talking point of this election.

The three debates will be critical. Mr Romney needs to center the discussion on capitalism’s superiority to government in producing what consumers actually want; in allocating resources to where they are actually needed; to capital’s ability to sniff out maximum return, which is another way of saying growth.

I honestly don’t think our president understands basic economics, and this executive handicap is exacerbated by his belief that he is the smartest guy in the room (meaning he just ignores advice contrary to his thinking). This neighborhood rabble-rouser has no experience in the real world of business, of working with people who don’t worship him, or of what it takes to maintain a payroll (let alone expand one). His idea of a recovery is increased union activity and increased government hiring. His idea of “reaching across the aisle” is to ask Republicans to do it his way. His idea of incentives to hire is a one-time payment (or tax credit) for hiring now.

All of this shows a profound misunderstanding of what makes America work.