Archive for the ‘SCOTUS’ Category

Lots of conservatives have ridiculed Al Franken about not being funny. They’ve criticized him for being a temperamental hard left lefty, too. While those are accurate, that isn’t Franken’s biggest problem. In fact, they’re far from it. This WashPo article works overtime to make Franken sound like a serious legislator:

“He stays home and studies for the next day,” a staffer says. Franken is known for actually reading committee witness testimony and even digging into the footnotes, looking for holes or contradictions.

Wow. Al Franken has finally started taking his job seriously. Let’s remember that he didn’t attempt to read the Patient Protection and Affordable Care Act, aka Obamacare, aka the ACA. He just voted for that destructive bill because that’s what Harry Reid and President Obama wanted him to do.

So like a good little puppet, Al Franken voted for a bill that’s raised families’ health insurance premiums and deductibles while shrinking families’ networks. Sen. Franken abandoned families when they needed him the most.

While that’s Al Franken’s biggest mistake, that isn’t the only time he’s abandoned families. He’s done nothing to help the hard-working people of the Iron Range because he’s refused to lift a finger to make PolyMet a reality. That’s because Franken is more worried about raking in max donations from his friends in Hollywood and other militant environmental activists.

These hard-line environmental activists don’t take kindly to politicians they support voting for the Iron Range’s blue collar workers. That’s because they’re most worried about their ideology. Worrying about hard-working families is well down their list of priorities, if it’s there at all.

As for whether Al Franken is a serious legislator, I’ll just post this video of Sen. Franken making a fool of himself while questioning Sonia Sotomayor during her confirmation hearings:

I’d submit that Sen. Franken isn’t the serious man he’s trying to portray himself as.

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How unpopular is the IRS’s proposed rule that would limit 501(c)(4)’s? I think that looking at a sampling of the organizations opposed to the rule would indicate the rule’s foolishness. Let’s start with this criticism from the League of Women Voters:

The Internal Revenue Service (IRS) has proposed very significant changes in the regulations that govern what kind of political activity and how much of that activity a Section 501(c)(4) organization can carry out. This step is our best chance to rein in the secret “dark money” that has been polluting our elections since the Supreme Court’s terrible decision in Citizens United. At the same time, the current proposal would undermine the League’s ability to conduct truly nonpartisan voter service activities across the country.

The LWV truly thinks it’s nonpartisan even though their agenda definitely fits into the Democrats’ agenda. That’s why it doesn’t hide its feelings by saying that they don’t have a problem reining in “the secret ‘dark money’” that’s allegedly polluting elections since the Citizens United v. FEC ruling. Leftists like LWV aren’t the only organizations that despise the IRS’s proposed rule. Americans for Tax Reform, aka ATR, opposes the proposed rule, too:

According to the IRS’s own website, groups “qualify for exemption under section 501(c)(4), [if] the organization’s net earnings [are] devoted primarily to charitable, educational, or recreational purposes.” This allows a myriad of citizen groups to educate their communities about issues which would affect them. Because of these activities, citizens can research laws and disseminate the information for free to those who might be impacted by the policies.

But with the proposed changes, organizations would lose their tax exempt status if they continued to spend sizable parts of their budget on the most basic civic activities. Among these activities are:

•Voter registration drives and “get-out-the-vote” drives.
•Distribution of any material prepared by, or on behalf of, a candidate or, by a section 527 political organization (PAC).
•Preparation or distribution of voter guides that refer to candidates (or, in a general election, to political parties).
•Holding any event within 60 days of a general election (or within 30 days of a primary election) at which any candidate appears as part of the program.

Under these criteria, any effort to educate the public about candidates, or the laws being passed by legislatures would be construed as “political activity” and will be used to suppress the free speech of social welfare groups. Candidate debates, although they are useful to the general public, would be shut down in a Machiavellian attempt to prevent ideologically inconvenient groups from threatening the government’s agenda.

This is McCain-Feingold in regulatory form. The BCRA, aka McCain-Feingold, was ruled unconstitutional by the Supreme Court in its Citizens United v. the FEC ruling. The Supreme Court ruled BCRA unconstitutional because it limited citizens’ rights to participate in the electoral process, which the First Amendment prohibits.

Both ATR and the LWV recognize the fact that the IRS’s rule would eliminate citizens groups from participating in the political process. That’s why they’re both opposing the IRS’s proposed rule.

What’s stunning is the volume of opposition to the IRS’s proposed rule. According to the IRS’s website, 122,135 comments had been left on the proposed rule. By comparison, there were 7,000 comments left for the Keystone XL Pipeline.

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This article should frighten Constitution-loving Americans across the political spectrum. Here’s why:

Schumer during remarks to the Center for American Progress argued that Tea Party groups have an unfair financial advantage over left-leaning groups because of the Supreme Court’s 2010 Citizens United decision, at one point even suggesting that President Barack Obama go around Congress to impose stricter campaign finance laws.

“It is clear that we will not pass anything legislatively as long as the House of Representatives is in Republican control, but there are many things that can be done administratively by the IRS and other government agencies — we must redouble those efforts immediately,” Schumer said.

“One of the great advantages the Tea Party has is the huge holes in our campaign finance laws created [by] the ill advised decision [Citizens United v. Federal Election Commission],” he added. “Obviously the Tea Party elites gained extraordinary influence by being able to funnel millions of dollars into campaigns with ads that distort the truth and attack government.”

First, it’s worth noting that Sen. Schumer’s speech is intellectually dishonest. Next, it calls into question whether he or the other signatories to his letter cherish the Constitution or whether they’re willing to sacrifice the Constitution for political expediency.

These questions are aimed specifically at Sen. Schumer and Sen. Franken:

  1. Do all political organizations have the right of free speech or do only some political organizations have First Amendment protections?
  2. If only some political organizations have First Amendment protection, who determines which political organizations have First Amendment protections and which political organizations don’t?
  3. Why do you think that the IRS is the right enforcer of who’s protected by the First Amendment?
  4. What part of the Constitution or the Bill of Rights can you cite that prohibits political speech for some organizations but protects poltiical speech for other organizations?
  5. Shouldn’t the Supreme Court be the final arbiter of what’s constitutional and what isn’t constitutional?
  6. Finally, why haven’t you demanded that the IRS be investigated for targeting citizens because of their political beliefs?

The reality is that Sen. Franken and Sen. Schumer don’t think in terms of what’s protected by the Bill of Rights or the Constitution. They think in terms of what will help them politically. With them, it’s never been about constitutionality. It’s always been about what’ll help them politically.

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George Will is right. It’s possible that 4 little words might doom the Anything But Affordable Care Act:

The four words that threaten disaster for the ACA say the subsidies shall be available to persons who purchase health insurance in an exchange “established by the state.” But 34 states have chosen not to establish exchanges.

From a plain language standpoint, this isn’t difficult to predict. If this lawsuit makes it to the Supreme Court and if the justices rule that the plain text of the Patient Protection and Affordable Care Act, which I’ll call the Anything But Affordable Care Act from this point forward, means what it says, then I’d expect a 9-0 ruling that the IRS doesn’t have the authority to change the plain text of the ABACA:

So the IRS, which is charged with enforcing the ACA, has ridden to the rescue of Barack Obama’s pride and joy. Taking time off from writing regulations to restrict the political speech of Obama’s critics, the IRS has said, with its breezy indifference to legality, that subsidies shall also be dispensed to those who purchase insurance through federal exchanges the government has established in those 34 states. Pruitt is challenging the IRS in the U.S. District Court for the Eastern District of Oklahoma, and there are similar challenges in Indiana, Virginia and Washington, D.C.

The history of the bill matters:

Congress made subsidies available only through state exchanges as a means of coercing states into setting up exchanges. In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus (D-Mont.), one of the bill’s primary authors, suggested conditioning tax credits on state compliance because only by doing so could the federal government induce state cooperation with the ACA. Then the law’s insurance requirements could be imposed on states without running afoul of constitutional law precedents that prevent the federal government from commandeering state governments.

In other words, Sen. Baucus understood that the Supreme Court would likely rule the ABACA unconstitutional if the legislation required states to create health insurance exchanges. Without that coercion, only states with out-of-touch far left governors (like Minnesota, New York and Vermont) would’ve created state-run HIXs.

As big a deal as these things are, there’s an even bigger principle at stake here:

If courts allow the IRS’s demarche, they will validate this:

By dispensing subsidies through federal exchanges, the IRS will spend tax revenues without congressional authorization. And by enforcing the employer mandate in states that have only federal exchanges, it will collect taxes; remember, Chief Justice John Roberts saved the ACA by declaring that the penalty enforcing the mandate is really just a tax on the act of not purchasing insurance, without congressional authorization.

If the IRS can do neither, it cannot impose penalties on employers who fail to offer ACA-approved insurance to employees. If the IRS can do both, Congress can disband because it has become peripheral to American governance.

If the Supreme Court gets this one wrong, then it’s over. There are tons of constitutional principles at stake here. That’s before taking the plain language of the bill into consideration.

Let’s be clear, though. I don’t mean to sound pessimistic. I’m not. This is exceptionally straightforward. While it’s important from a constitutional standpoint, it also revolves around whether the justices will pretend that the plain text of the bill doesn’t mean what it means.

The original lawsuit was almost entirely about constitutional principles. This lawsuit is primarily, though not entirely, about the plain text of the ABACA. It’s difficult to think that Chief Justice Roberts will rule that the bill’s text doesn’t mean what it says.

This article must have Gov. Dayton and his pro-unionization allies worried:

The Supreme Court will hear arguments about forced unionization among government workers on Tuesday in a case that could greatly curtail powerful labor groups.

At issue is an Illinois law crafted by imprisoned former Gov. Rod Blagojevich and enforced by his successor Pat Quinn that forces home healthcare workers, including family members caring for relatives, to pay union dues.

The lawsuit highlights some interesting hypocrisies:

“The Illinois law only defines them as employees in terms of unionization and no other rights at all,” said NRTWLDF lawyer Bill Messenger. “This is a scheme for compulsory lobbying.”

The caregivers do not receive liability insurance coverage or retirement benefits that other government workers are entitled to, according to Messenger. If the court holds that state governments can force any secondary beneficiary of taxpayer dollars in the union, “vast swaths of the population” would end up paying union dues.

The NRTWLDF’s claim is valid. If in-home child care providers are part of AFSCME or the SEIU, then they should receive the same benefit packages as AFSCME or SEIU employees. If they don’t, then forced unionization should be seen for what it is: an attempt to collect more union dues.

AFSCME doesn’t care about these small business owners. They care about staying politically relevant.

Then there’s this:

“All doctors or nurses who care for Medicare patients would have to join a union by that logic,” Messenger said. “What unions are looking at is trying to attach themselves to any kind of government funding.”

AFSCME’s definition of a public employee defies logic. According to Minnesota’s forced unionization law, private sector employers are classified as public sector employees if they accept children whose parents get government assistance. According to AFSCME’s thinking, employees of construction companies that win bids on public works projects would be forced to join a union or pay fair share fees.

Another argument that I’ve heard relating to forced unionization is that the First Amendment gives businesses the right to determine who represents them in airing their grievances with the government. That makes sense because the National Labor Relations Act prohibits businesses from dominating a union:

Federal law mandates that it is an unfair labor practice for an employer to “…dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it…” 29 U.S.C. 158 (a)(2)

If a business wants a trade organization or a lobbying firm to represent their interests before the government, that should be their right. Further, based on the Illinois law, it sounds like SEIU is only interested in shaking down businesses. They aren’t interested in actually representing in-home child care small businesses.

I won’t pretend that I’m a constitutional attorney but it seems to me that the forced unionization movement is more about shaking people down than it is about representing people. That’s because the vast majority of in-home child care small businesses don’t want union representation.

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Elizabeth Wydra’s article exposes some flawed constitutional law thinking:

From the nation’s founding until today, the Constitution’s protection of religious liberty has been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience.

Here’s the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Where in the First Amendment does it say that “the free exercise” of religion is limited to individuals? Further, aren’t corporations groups of people? Corporations aren’t buildings. Corporations are groups of people.

Does the Fourth Amendment only protect individuals from unreasonable searches and seizures? God help us if it does.

Business corporations, quite properly, have never shared in this fundamental constitutional tradition for the obvious reason that a business corporation lacks the basic human capacities — reason, dignity and conscience — at the core of the right to free exercise of religion. Obviously not “persons” in the usual sense of the word, these corporations are also not religious organizations, which have historically received some constitutional protection and are, in fact, given exemptions from the contraception mandate.

That’s wrongheaded thinking, too. Because corporations are collections of people, those people have “the basic human capacities” of “reason, dignity and conscience.” Further, what says that only churches and religious institutions have “constitutional protections”? Finally, do people lose their First Amendment protections when they join corporations?

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It isn’t surprising that Sen. Schumer thinks the Constitution should be ignored when it inconveniences President Obama and Democrats. Thankfully, former NY Lt. Gov. Betsy McCaughey isn’t letting Sen. Schumer’s bad behavior off the hook. Here’s the opening sentence to her article:

Last Sunday on Meet the Press, Sen. Chuck Schumer of New York announced he will propose legislation to permanently take control of the debt limit away from Congress and give it to the president.

After that, Ms. McCaughey took Sen. Schumer to the proverbial woodshed:

It’s a dictator’s dream come true. The framers of the U.S. Constitution gave Congress alone power to borrow, tax, and decide how public revenues are spent. They wanted to prevent a president from spending excessively and saddling the public with huge debts. That’s what the despotic kings of Europe had done.

Article 1 Sect. 8 states that “Congress shall have the Power To lay and collect Taxes…to pay the Debts and provide for the common Defence and general welfare of the United States; To borrow Money on the credit of the United States.” Schumer’s proposal stuffs the Constitution in the waste basket.

Sen. Schumer’s legislation won’t even get a hearing in the House so it’ll never become law. Sen. Schumer knows that. Still, it’s stunning to hear that a senator is proposing a bill that he knows is unconstitutional. It’s stunning because this is the text of the oath senators take:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

It’s exceptionally clear that the Founding Fathers intended Congress to obey the Constitution they wrote. Sen. Schumer apparently thinks that obeying the Constitution is just a formality.

Even if Sen. Schumer’s legislation became law, which it won’t, it wouldn’t take long for it to get struck down. Here’s why it’s doomed:

Schumer’s proposal goes against 226 years of American history. Until 1917, the president had to ask Congress’s permission for each borrowing and frequently acquiesced to conditions. That year, Congress devised the debt ceiling, which allowed the president flexibility to borrow up to a certain amount in order to fund a world war. Ever since then, presidents have come to Congress once or twice a year for a debt ceiling hike, often making political concessions to get it. Until this year, Congress had never abdicated control over the nation’s indebtedness.

In fact, the U.S. Supreme Court has ruled that Congress can’t surrender its powers to another branch of government or change how laws are made. (I.N.S. v. Chadha, 1983)

Sen. Schumer should be thrown out of the Senate for violating his oath of office this openly. That won’t happen but that’s what should happen. Sen. Schumer, like several other Democrats, including Nancy Pelosi, think that the Constitution’s principles are antiquated and should be ignored. That isn’t surprising. It’s just disgusting.

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This article asks a ton of questions that the Obama administration doesn’t want to deal with. Thanks to this lawsuit, President Obama is put in the unenviable position of defending his signature accomplishment in an uphill fight:

The Affordable Care Act forbids the federal government from enforcing the law in any state that opted out of setting up its own health care exchange, according to a group of small businesses whose lawsuit got a key hearing Monday in federal court.

The Obama administration, according to their lawsuit, has ignored that language in the law, enforcing all of its provisions even in states where the federal government is operating the insurance marketplaces on the error-plagued website.

Thirty-six states chose not to set up their exchanges, a move that effectively froze Washington, D.C. out of the authority to pay subsidies and other pot-sweeteners to convince citizens in those states to buy medical insurance.

But the IRS overstepped its authority by paying subsidies in those states anyway, say the businesses and their lawyers.

The subsidies serve as a trigger that determines who has to comply with the now-famous individual and employer mandates. So, the lawsuit claims, the Obama administration illegally enforced the Affordable Care Act – suddenly making millions of taxpayers and small employers subject to paying fines if they don’t play ball.

The Affordable Care Act authorizes subsidies only for policies purchased ‘through an Exchange established by the State.’

The clearly written language of the bill says that the only people who are eligible for federal subsidies are people who purchase their health insurance through state-run health insurance exchanges.

This lawsuit won’t get the Affordable Care Act ruled unconstitutional. That isn’t what the Obama administration is worried about though. If the federal government isn’t able to force people in those 36 states to obey the individual or employer mandates, the financing of the bill will collapse.

If the Supreme Court rules in favor of these plaintiffs, there’s a bigger worry facing the administration:

Kazman is general counsel for the Competitive Enterprise Institute, a free-market think tank that is coordinating the case.

‘The IRS cannot rewrite the law that Congress passed,’ said Tom Miller, resident fellow at another think, the tank American Enterprise Institute. Its regulation expressly flouts the statutory text of the Affordable Care Act, the intent of Congress and the reasoned choices of [36] states.’

‘The fiscal impact’ of denying the Obamacare system millions of dollars in lost fines, ‘while sizable, wouldn’t be large enough to bring down the house,’ Kazman added. The poltical one, however, is. You’d have 34 “refusenik” states exempting their employers and many of their citizens from the employer mandate and portions of the individual mandate,’ he explained.

‘You’d have companies in participating states considering whether to move their operations’ to states where they don’t have to obey the Affordable Care Act. ‘And you might even have some of those states seeking to undo their choice to participate.’

The law is clearly written. Still, I’m unsure because John Roberts screwed things up pretty badly when he had the chance to kill an unconstitutional law. Make no mistake about this fact: this lawsuit will be dedided by the Supreme Court.

Forgive my cynicism but that’s what happens when the Chief Justice of the Supreme Court rules that it isn’t his place to undo a political catastrophe. HINT TO CHIEF JUSTICE ROBERTS: The Affordable Care Act wasn’t just a political catastrophe. It was about whether the Constitution put a limit on the federal government’s authority and reach. Chief Justice Roberts punted on that.

Perhaps he’s ashamed of that ruling. I hope he is. He should be. This time around, the lawsuit is clear. It’s about whether the clearly written language of the Affordable Care Act means what it says. Chief Justice Roberts better not botch this one. That might be the only clearly written part of the Affordable Care Act.

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Thanks to a lawsuit filed by Scott Pruitt, Oklahoma’s Attorney General, the Affordable Care Act might be on life support:

Political pundit Dick Morris believes that a suit brought by Oklahoma against Obamacare could be what ultimately knocks down the president’s healthcare law.

“Why didn’t anyone else think of it?” Morris wrote in The Hill. “Unlike the suit brought by 26 state attorney generals, this suit does not make a constitutional objection to the Affordable Care Act. Instead, it uses the language of the law to challenge the elaborate system of subsidies, tax credits, and individual or employer mandates and fines the act has spawned.”

The suit, filed by Oklahoma’s Republican Attorney General Scott Pruitt, was published in the Case Western Reserve School of Law Journal. The article contends that the wording of the Affordable Care Act allows a subsidy for health insurance only for those who got their coverage through state exchanges rather than the federal exchange.

I’ve had this lawsuit on my radar for awhile because it uses the Affordable Care Act’s clear language against itself:

“The IRS has ruled that the language of the statute should be ‘interpreted’ to extend the subsidies to those enrolled in state or federal exchanges, but that’s not what the law says,” Morris explained, adding, “Section 1041 of the act, according to their article, ‘authorizes premium-assistance tax credits and makes them available only through state-run exchanges.’”

It also says tax credits can be given only if the taxpayer has a plan that was enrolled in through an exchange established by the state under section 1311 of the Affordable Care Act. Jonathan H. Adler and Michael F. Cannon, who did the research, “argue that ‘by its express terms, this provision only applies to exchanges ‘established by a state’ and ‘established…under Section 1311,’” Morris pointed out.

The bill’s clear language emphasizes the fact that subsidies were only available to people who bought their insurance through state-run exchanges. That was the Democrats’ way of bribing states into setting up exchanges. When states said no to the Democrat’s bribery scheme, this administation tried ignoring the Affordable Care Act’s own language.

While I won’t make predictions about the Affordable Care Act because of Chief Justice Robert’s disastrous ruling, it’s difficult to see them giving this administration another victory. If the Roberts Court did that, they’d become a laughingstock. Ignoring the bill’s plain language isn’t the way to build credibility.

It isn’t that winning this lawsuit would cause the Affordable Care Act to disappear. It would just make buying health insurance an expensive proposition, too expensive for most people.

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If anyone is interested in learning about the Constitution, the place to start is with KrisAnne Hall. Kris’s take-no-prisoners, no-nonsense approach to the Bill of Rights frightens politicians. This video provides insight into Kris’s thinking:

I thought this part of Kris’s presentation was especially captivating and troubling:

KRISANNE HALL: You need to be able to ask 2 fundamental questions and get the right answers. The first question is this — now, I’m going to let you know I’ve had the privilege of actually asking a gubernatorial candidate these questions in Minnesota. Now it’s gonna be fun because you’re gonna be able to ask these questions, then watch them bob and weave like this candidate did. It’s hilarious.

Question number 1 is this: What does ‘shall not be infringed’ mean? Now some of you are chuckling because you know where I’m going with this. It’s because the problem is, if they answer that question honestly, then there is no such thing as gun legislation.

So I asked this gubernatorial candidate this question ‘What does shall not be infringed’ mean. … He said “Well, this is a meet and greet. I don’t know if we have the time to get into a real legal debate over the meanings of these words.’ I said “Well, I think you misunderstand me, Sir. I don’t care what the Supreme Court says that those words mean. You see, the Supreme Court doesn’t have the authority to tell me what those words mean. I want to know what Webster’s Dictionary says they mean.”

FYI- The Minnesota gubernatorial candidate that bungled the question is Scott Honour. It’s shameful that a GOP gubernatorial candidate couldn’t answer Kris’s simple question. I’d expect that type of meandering, evasive reply from a Democrat who doesn’t want to get pinned down on his/her real beliefs. I’m disappointed, though, that a Republican replied this way.

Constitutional questions aren’t the only criteria to evaluate candidates but it’s definitely important.

Last summer, I met KrisAnne at the RightOnline conference in Las Vegas. It was immediately apparent that her understanding of the genealogy of the Constitution is outstanding. This summer, the Central Minnesota TEA Party invited KrisAnne to St. Cloud to give an abbreviated presentation on the genealogy of the Constitution. She didn’t disappoint.

Throughout her presentation, like she did in this video, Ms. Hall utterly demolished commonly held beliefs about the Constitution with contradictory quotes from the people who actually wrote the Constitution. That’s especially true about the principle of nullification.

The Founding Fathers intended the federal government to be the least consequential of the levels of government. (Those governments closest to the people were intended to be the most consequential.) They also intended for the judicial branch to be the least consequential of each level of government.

If you want to learn about the Constitution, KrisAnne Hall is the person to contact. In fact, if you want students to learn about the Constitution and American history, I can’t think of a better person to recommend than Ms. Hall.

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