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After reading former Sen. Richard Lugar’s NYTimes op-ed on immigration, it isn’t surprising that he isn’t a senator anymore.

The first major tipoff came when he said “whether or not you like President Obama’s actions, he has operated under longstanding provisions of law that give the executive branch discretion in enforcement.” It’s stunning that a former senator would make such a foolish straw-man argument. That isn’t the heart of United States v. Texas. The heart of U.S. v. Texas is found on pg. 7 of Judge Andrew S. Hanen’s opinion when he said “One of these memoranda contained an order establishing a new program utilizing deferred action to stay deportation hearings and award certain benefits to four to five million individuals residing illegally in the United States.”

SCOTUSblog talked about the topic of standing in this post, saying “Here is what is at issue regarding state “standing” to sue: to be allowed in federal court under Article III, a state government — like anyone else who seeks to sue in those courts — would have to show that the action being challenged causes it a definite injury or harm. The injury cannot be theoretical or speculative; it must be real, existing right now or predictably.”

That actually shouldn’t be that difficult to prove. It’s inevitable that having “four to five million individuals residing illegally” in Texas or one of the other 25 states that filed the lawsuit would cost individual states financial harm to one degree or another. That harm might come in the form of higher costs for health care programs, education or other benefits that are paid for at the state, county or school district level.

More importantly, though, Judge Hanen stated that one of Jeh Johnson’s memoranda “contained an order establishing a new program” that would “award certain benefits.” That isn’t allowed by Article I of the Constitution. Only the legislative branch is allowed to create new programs. The executive branch executes the programs on the books.

If the justices cared about the Constitution’s authorities, they’d admit that the executive branch has the authority to exercise prosecutorial discretion but that it doesn’t have the authority to create a new program that Congress hasn’t authorized through legislation.

The thought that a senator, especially one that’s been a committee chair, doesn’t understand this is a bit frightening.

When KSTP’s Tom Hauser interviewed Sen. Klobuchar, (DFL-MN), Sunday morning, they discussed President Obama’s nomination of Judge Merrick Garland to replace Antonin Scalia on the Supreme Court. Like an actress reading from a script, Sen. Klobuchar said that Judge Garland is a moderate. That term is interesting because it’s empty. Being the inquisitive type, I sent Sen. Klobuchar a message for clarification. It read “Sen. Klobuchar, you told Tom Hauser that Judge Garland is a moderate. I understand what a political moderate is but I don’t know what a judicial moderate is. I’d appreciate it if you’d explain what your definition of a judicial moderate is. Further, if Judge Garland is a moderate, does that mean Justice Sotomayor and Justice Kagan are radicals or ideologues? I’d appreciate a quick, substantive reply.”

Sen. Klobuchar’s auto-response said “Thank you for taking the time to e-mail me. This is a confirmation that we have received your message. One of the most important parts of my job is listening to what the people of Minnesota have to say to me. I am here in our nation’s capital to do the public’s business on behalf of the people of our state. Please continue to visit my website at http://www.klobuchar.senate.gov to follow what I am working on, both in Washington and Minnesota. It is frequently updated with current news and events regarding my work in the U.S. Senate. Additionally, many constituents ask about tracking the progress of legislation. One useful tool is to regularly check my website. Another resource I recommend is the Library of Congress legislative information website, http://thomas.loc.gov. I hope you find this information helpful. – Amy”

Since Sen. Klobuchar hasn’t explained what a judicial moderate is yet, I’ll rely on something that Dennis Prager wrote about Judge Garland:

In a column in The Wall Street Journal, Juanita Duggan, President and CEO of the National Federation of Independent Business, wrote that Garland is so anti-small business and so pro-big labor, that “This is the first time in the NFIB’s 73-year-history that we will weigh in on a Supreme Court nominee.”

What worries the NFIB, she explains, is that “in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB (National Labor Relations Board).”

Apparently, a judicial moderate sides with Big Labor 100% of the time. Forgive me if I don’t agree that that’s the definition of a moderate. Forgive me if I think that sounds more like a hardline leftist ideologue. Then there’s this:

Tom Goldstein wrote in the SCOTUSblog that Garland favors deferring to the decision-makers in agencies. “In a dozen close cases in which the court divided, he sided with the agency every time.”

Again, that sounds more like the definition of a leftist ideologue. It doesn’t sound like a centrist/moderate. This is worth checking out, too:

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Dennis Prager’s latest Townhall article interrupts the Democrats’ narrative that Merrick Garland, President Obama’s nominee to replace Antonin Scalia on the Supreme Court, is a moderate.

For instance, for the first time in the NFIB’s history, they will be taking a position against a Supreme Court nominee. In fact, it’s the first time in their history that they’ve taken any position, positive or negative, on a Supreme Court nominee.

Juanita Duggan, President and CEO of the NFIB, said they’re making their position known because “in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB.” It’s apparent that Judge Garland’s mind was made up long ago. It’s clear that he’ll consistently favor Big Labor over the Constitution.

The term moderate isn’t relevant when talking about judges. You either interpret laws based on the plain language of the Constitution or you don’t. My thought is that moderate judges don’t exist except in newspapers like the NY Times, the Washington Post or the LA Times. Then there’s this:

“If the late Justice Antonin Scalia, a staunch conservative, is replaced by a moderate-to-liberal Justice Garland, the court would tip to the left on several key issues, like abortion, affirmative action, the death penalty, gun control, campaign spending, immigration and environmental protection.”

In other words, the very same author who describes Garland as a centrist believes that Garland votes left on essentially every major issue confronting the nation and the Supreme Court.

Based on this information and the Times’ description of Judge Garland, we should assume that centrist/moderate judges agree with liberals on “abortion, affirmative action, the death penalty, gun control, campaign spending, immigration and environmental protection.” I can’t wait to hear how that’s dramatically different than liberal justices like Sotomayor or Ginsberg.

Republicans should reject Garland. They shouldn’t give him a hearing. They shouldn’t give him a vote on the Senate floor. They give him a Reid-like pocket veto while explaining why Garland is a creature of the left and while highlighting how dishonest the Democrats are in calling Garland a centrist.

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Since news broke that Supreme Court Justice Antonin Scalia had died Saturday, people have buzzed about whether President Obama would nominate a replacement (he will) and whether the Senate will confirm a nominee (they won’t.) While this will sound a little dramatic, the truth is that this pick has the potential of changing the shape of the nation.

The truth is that past liberal courts haven’t cared about the text of the Constitution. Whether you agree or disagree with Roe v. Wade, the Supreme Court didn’t have the authority to decide that lawsuit. It wasn’t a federal issue. State legislators and governors should have been given time to figure out how their state wanted to deal (or not deal) with the issue. There was nothing in the Constitution that said the federal government had the right to get involved. If the federal government wanted to get involved, Congress, not the Supreme Court, should have dealt or not dealt with the issue.

Since the right to an abortion isn’t found anywhere in the Constitution, that means it’s a political issue. It isn’t a judicial issue until legislation is written and a bill is signed into law. The fact is that the Warren Court didn’t respect the principle of federalism because that court didn’t respect the states. Too frequently, the Warren Court saw the federal government as the sole authority on issues.

That belief stands in total contrast with the Founding Fathers’ beliefs. The Founding Fathers believed that states, local units of government and individuals should make the vast majority of decisions. That’s the underlying principle behind federalism.

In the past, liberal courts haven’t seen fit to rule that the Second Amendment didn’t apply to individuals. They’ve argued that it applied exclusively to militias. Then liberal lawyers argued that the Second Amendment is essentially void because we aren’t protected by militias anymore.

The next justice will either decide that the people who wrote the Constitution thought things through, debated the pros and cons of each provision in the Constitution, then voted on whether each provision was worthy of being included in the Constitution and the Bill of Rights.

The Founding Fathers didn’t deal with trendy things. They wrote the Constitution to stand the test of time. They wanted to make it impossible for a dictator to control the nation. That’s why they insisted on including checks and balances into everything they put into the Constitution. They understood the value of deliberation and negotiation. They understood the importance of placing limits on government, too.

The Warren Court and, to a lesser extent, the Rehnquist Court issued rulings that allowed government to overrule the wishes of the governed. The last thing freedom-loving people should want is a nation ruled by the judiciary. Far too often, the Supreme Court created rulings from their imagination. Such is the case with Wickard v. Filburn.

At issue in Wickard v. Filburn was whether Congress could “regulate the production of wheat intended for personal use and not placed in interstate commerce” and whether “Congress could regulate trivial local intrastate activities that have an aggregate effect on interstate commerce via the commerce power.” The Supreme Court ruled that Congress could regulate farm production even if those products never crossed from one state to another. In fact, that court ruled that the federal government had the right to regulate crop production even though the crops never left the farmer’s land.

There’s no justification for the federal courts to get involved because this was a local issue. Prior to this ruling, the federal government only used the Interstate Commerce Clause to regulate commerce that left one state and went to another state. Wickard v. Filburn opened the floodgates that provided the precedent for other federal intrusions into matters that were supposed to be dealt with at the state level.

Earlier this week, I wrote this post about Greta van Susteren’s prediction of the King v. Burwell ruling. She predicted that the Supreme Court would rule against continuing the subsidies because the plain language is clear that only people who bought insurance through exchanges established by the state were eligible for subsidies. Let’s assume for the sake of this discussion that that’s what happens.

Then what?

Republicans fear that they’ll get blamed for the collapse of Obamacare. They shouldn’t. They should rejoice that the Supreme Court has struck down the heart of Obamacare. After a minute of rejoicing, they should then announce that they’re submitting a bill that includes the following features:

  1. The policies that people liked but couldn’t keep will again be considered QHPs, aka Qualified Health Plans.
  2. States would be given the option of either a) staying with Obamacare as it’s currently written, b) crafting their own version of a health care exchange or c) creating a hybrid that combines the best features that aren’t part of Obamacare with the best features of Obamacare.
  3. The new GOP bill would temporarily extend the subsidies 120 days so that states and the federal government can put something to replace Obamacare with.

Just saying that people can return to buying the policies that they were forced out of by Obamacare is reason for celebrating. Remember how upset people were when they got kicked off their policies that they liked? I do. They weren’t upset. They were furious and/or worried sick. Some saw it as a matter of life or death … because it was:

Everyone now is clamoring about Affordable Care Act winners and losers. I am one of the losers.

My grievance is not political; all my energies are directed to enjoying life and staying alive, and I have no time for politics. For almost seven years I have fought and survived stage-4 gallbladder cancer, with a five-year survival rate of less than 2% after diagnosis. I am a determined fighter and extremely lucky. But this luck may have just run out: My affordable, lifesaving medical insurance policy has been canceled effective Dec. 31.

My choice is to get coverage through the government health exchange and lose access to my cancer doctors, or pay much more for insurance outside the exchange (the quotes average 40% to 50% more) for the privilege of starting over with an unfamiliar insurance company and impaired benefits.

It’s time to parade victims of Obamacare in front of the cameras. Let’s start with Edie Littlefield Sundby, who sarcastically wrote that she had the “privilege of starting over with an unfamiliar insurance company and impaired benefits.” Next, let’s put Jim Hoft in front of the camera to tell his story about how his supposedly substandard policy saved his life.

President Obama will undoubtedly tell Congress that he won’t re-litigate the ACA. The RNC should start the ads described earlier in this post the minute President Obama essentially says it’s his way or the highway. Here’s what the first ad should say:

NARRATOR: President Obama says he won’t re-litigate the Affordable Care Act.
EDIE LITTLEFIELD-SUNDBY: Where do I go to get my old policy that I loved dearly and that literally saved my life? President Obama, will you really stand in the way of me getting my old policy back? Sign the Republicans’ bill that would let me buy my old policy again.

That ad alone would get Democrats wobbly. Even if President Obama would veto the bill, how many Democrats in the House and Senate that are up for re-election would vote to sustain President Obama’s veto?

It’s time that Republicans grew a pair. They’re playing 3 aces like a pair of deuces.

During Tuesday night’s Off the Record segment, Greta van Susteren made a rare prediction:

Here’s what she said:

GRETA: First, some Law 101. When 2 parties dispute a statute, here Obamacare, the Court must first decide who’s right. The Court first looks at the plain wording of the statute. If it’s plain, that’s the end of it. The Court rules on the plain words. If the wording, however, is somehow confusing or ambiguous, the Court then goes beyond the words to decide the case. What did the lawmakers intend when they wrote the confusing language? So now, the Obamacare statute and the words. It says “people are eligible for subsidies if they obtained health coverage quote ‘through an exchange established by the state.'” Now that’s plain. To get a subsidy, you have to be in one of the states that set up an exchange, not in the other 34 states that rely on the federal exchange. So I think the Supreme Court will rule against Obama.

Tons of ink has been used to talk about the Republicans’ dilemma if the Supreme Court rules that the IRS can’t give subsidies to people who bought insurance through HealthCare.gov. I’m not often critical of Republicans but I’m upset with them this time. Republicans have a bunch of ideas that, if put together in a piece of legislation, would be a significant improvement over Obamacare. Sen. Bill Cassidy put a plan together, which is the topic of this article:

Cassidy’s bill proposes a way forward following the Supreme Court’s decision in King v. Burwell, which is expected by the end of June. The case will decide whether the majority of health exchanges, which are run by the federal government, are legally allowed to provide subsidies.

Cassidy, a doctor who unseated Mary Landrieu (D., La.) last November, narrowly focused his bill to be a response to a ruling in favor of Burwell, which would take away subsidies in states that are operated by the federal exchange. Only 13 states operate their own health insurance marketplaces, since the $205 million Hawaii exchange announced it would fold and be taken over by the federal government.

The Patient Freedom Act would give states the option of keeping Obamacare by establishing a state-based exchange, or using existing funding to provide tax credits to create Health Savings Accounts (HSAs) for the uninsured, averaging $1,500 per person.

“We are trying to give the state an option other than setting up an Obamacare exchange,” Cassidy said. “The president, I’m sure, will make it easy [to set up a state exchange], because he wants his law to take root,” he said. “If we don’t have a better plan, it will take root.”

If states chose Cassidy’s option, they could do away with various mandates under Obamacare, including the individual and employer mandates and requirements for minimum essential coverage. The legislation would also equalize tax treatment, and require health providers to publish cash prices for services reimbursed from an HSA.

While there are certain to be parts of Sen. Cassidy’s bill that we don’t like, this bill should get a committee hearing. Amendments should’ve been offered to improve the bill. That would prove that Republicans are interested in solving problems, not just complaining about problems.

The American people know the complaints. They’ve made those complaints themselves. What Americans insist upon is a solution. Republicans should get behind this legislation ASAP. Committee hearings should start next week. If a Republican senator who’s running for president starts complaining or grandstanding, Mitch McConnell should highlight that senator’s grandstanding and tell them that it’s this legislation. Period. If they won’t be team players, Senate leadership should make it known that they’ll blow up that senator’s presidential campaign.

This isn’t a situation for political gamesmanship. It’s a situation that demands leadership and solutions. The American people deserve that much.

Finally, a group of ideas isn’t a solution. They’re a collection of theories. It’s time for Republicans to put on their big boy pants and provide solutions. Carpe diem.

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I’m jumping for joy over Ryan Winkler’s impending resignation from the House of Representatives:

Fifth-term Rep. Ryan Winkler of Golden Valley said he will resign this summer and move to Brussels. The Harvard-educated lawyer said his wife, Jenny, landed a new executive position with an international hotel chain that is owned by a Minnesota company.

I’d like to personally thank Rep. Winkler’s wife for removing that particular pain from my backside. I’m more than grateful.

In the Legislature, Winkler revels in jabbing Republicans with unrelenting, sharp-tongued rhetoric.

“I’m going to miss things like passing the minimum wage increase far more than I’m going to miss the back and forth in the Legislature,” Winkler told The Associated Press, adding that his wife’s opportunity was too big to pass up. “I’d rather have a great experience with my family than argue with Republicans all day.”

That’s understandable. In the legislature and committee, he frequently got his ass handed to him in debates. While Rep. Winkler was irreverent, he wasn’t particularly smart. The difference showed up in June, 2013:

His penchant for a good zinger sometimes got the best of him. Winkler apologized in 2013, for a tweet criticizing U.S. Supreme Court Justice Clarence Thomas as “Uncle Thomas” that drew national attention and cries of racism. He said it wasn’t intended to be racially derogatory.

I wrote this post to highlight Rep. Winkler’s disgusting action. Here’s what he initially tweeted:

Here’s Rep. Winkler’s ‘apology’:

“I did not understand ‘Uncle Tom’ as a racist term, and there seems to be some debate about it. I do apologize for it, however,” he said.

Here’s what I said then:

That’s BS. Rep. Winkler graduated with a B.A. in history from Harvard University in 1998. If Rep. Winkler thinks that we’ll buy the fact that he didn’t learn about Uncle Tom’s Cabin, Harriet Beecher Stowe’s classic from 1852, he’d better think again.

Good riddance. Minnesota is getting rid of a first class jerk.

This weekend, after he met with Raul Castro, President Obama continued his hate America tour, declaring that he was “very aware of the fact that there are dark chapters in our own history.”

There’s no doubt that this nation has seen dark chapters during its history. While the darkest of those dark chapters is either the Civil War or the bombing of Pearl Harbor, not all of this nation’s darkest chapters involve war. The Obama administration is one of those dark chapters.

Betraying Israel is a sad chapter in US history. President Obama has frequently betrayed Israel, whether it’s through revealing Israel’s sensitive nuclear secrets or by sending his political operatives to Israel to defeat Israel’s sitting prime minister. Frankly, betraying Israel is betraying the United States’ Judeo-Christian heritage.

Frequently ignoring the Constitution is another instance where the Obama administration has led the United States into a dark chapter in our nation’s history. No other administration has had the Supreme Court rule unanimously against their power grabs thirteen times. That’s a record that’s as likely to get broken as Cy Young’s 511 victories as a pitcher.

Negotiating a nuclear proliferation treaty with Iran, which is what John Kerry’s framework really is, is a betrayal of our allies in the region. That’s before talking about how it establishes Iran as the regional superpower. That’s before talking about how it endangers our national security by pumping new money into Iran’s coffers to support regional and worldwide terrorist attacks.

That’s before highlighting this foolish statement:

“The cold war has been over for a long time and I’m not interested in battles that have been over frankly, before I was born,” President Obama stated.

It’s stupid for President Obama to insist that the Cold War is over. Putin’s on the march, gobbling up huge parts of neighboring countries. Further, I’m interested in hearing him explain how the Berlin Wall fell in 1989, when he was 28 years old. Perhaps he didn’t notice because he was too busy selling cocaine?

The only potential positive that might come out of the Obama administration is the stench that will remind us we’ve survived a national nightmare of incredible intensity.

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Judge Andrew Hanen refused to lift his temporary hold on President Obama’s executive action, saying that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation.” Here are the arguments both sides are making:

The coalition of states leading the challenge filed its lawsuit to overturn Obama’s executive actions, which would prevent as many as 5 million people who are in the U.S. illegally from being deported. The states, led by Texas, argue that the action is unconstitutional and would force them to invest more in law enforcement, health care and education. The injunction is intended to stall Obama’s actions while the lawsuit progresses through the courts.

Justice Department attorneys argue that keeping the temporary hold harms “the interests of the public and of third parties who will be deprived of significant law enforcement and humanitarian benefits of prompt implementation” of the president’s immigration action.

First, it isn’t likely that the Obama administration will win this fight. If I were putting out odds, I’d say the administration’s odds of winning was less than 15%. That’s enough to stop the DOJ’s request dead in its tracks. Second, Judge Hanen’s statement that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation” is a rather chilly statement. (Ed Morrissey’s post explains why the relationship between Judge Hanen and the DOJ is frosty.)

Hanen issued his initial injunction believing that neither of those orders had taken effect. About a month later, the Justice Department confirmed that more than 108,000 people had already received three-year reprieves from deportation and work permits, but DOJ attorneys insisted the moves were made under 2012 guidelines that weren’t blocked by the injunction. The DOJ apologized for any confusion, but Hanen seemed unconvinced during a hearing last month and threatened to sanction the attorneys.

He wrote Tuesday that while the federal government had been “misleading” on the subject, he would not immediately apply sanctions against the government, saying to do so would not be “in the interests of justice or in the best interest of this country” because the issue was of national importance and the outcome will affect millions of people.

“The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit,” Hanen wrote.

I’m not a lawyer but I can’t imagine it’s a good thing for a judge to say that “the federal government had been ‘misleading'” the judge. I’ve got to think that the appellate court won’t be impressed with the DOJ’s actions.

I’d be very surprised if the Supreme Court doesn’t a) hear this case and b) rule against the administration.

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Just when I thought it was safe to listen to former State Sen. Steve Murphy again, he said something strikingly stupid. Friday night on Almanac’s Roundtable, Indiana’s RFRA law was brought up. Here’s what Murphy said:

I really don’t think nationally that we need any laws like that.

That isn’t just strikingly stupid. It’s frightening that a politician wouldn’t know that Bill Clinton signed RFRA into law in 1993 or that it passed the House unanimously and the Senate with overwhelming bipartisan support. Further, it’s frightening that a politician wouldn’t remember that RFRA was cited by Justice Samuel Alito’s majority opinion in the Burwell v. Hobby Lobby decision:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A).

Simply put, the government can’t force people to act against their religious beliefs unless the government can offer a compelling reason for restricting a person’s religious rights. Even if the government can provide a compelling reason for limiting a person’s religious beliefs, the government’s solution must be “is the least restrictive means of furthering that compelling governmental interest.”

Earlier in the segment, Ember Reichgott-Junge said that “the Religious Right” is wise in not introducing RFRA legislation. I’d just recommend Sen. Reichgott-Junge read John Hinderaker’s post about RFRA. Specifically, she should read this part of John’s post:

The hysterical reaction to Indiana’s law can only be described as insane. As we noted here, there is a federal RFRA that governs federal laws, 19 states have their own RFRAs, and ten other states have adopted the “strict scrutiny” standard of the Indiana statute by judicial opinion. Governor Dayton is perhaps unaware that Minnesota is one of those ten states. Hill-Murray Fed’n of Teachers v. Hill-Murray High School, 487 N.W.2d 857, 865 (Minn. 1992); State v. Hershberger, 462 N.W.2d 393, 398 (Minn. 1990).

Remember that these are prominent former DFL state senators. When they’re sworn in, they swear an oath to “support the Constitution of the United States, the constitution of this state and to faithfully discharge the duties of his office to the best of his judgment and ability.” It’s impossible to support the US Constitution if you don’t know what’s in it.

Finally, Sen. Murphy is the guy who said that he wasn’t trying to hide tax increases in his transportation bill. He’s also famous for saying this:

“Everything is fun and games until someone gets an eye poked out, and the governor just poked out my eye by vetoing this bill,” said Sen. Steve Murphy, DFL-Red Wing. “I think that is a clear indication he wants a train wreck at the end of session. He wants the Legislature to fail, and he wants to blame us.”

Steve Murphy and Ember Reichgott-Junge’s ignorance of the Constitution and major Minnesota court cases are frightening, especially considering the fact that the DFL is the party that thinks government is the dispenser of good things. Frankly, these DFL has-beens couldn’t support the Constitution they wore to uphold.

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