On My Son's Graduation

My son graduates from high school today.  In this day of nearly mandatory college, it's easy to lose sight of the fact that a high school diploma is a significant achievement to be celebrated.  To mark this special day, I'm reposting an item from last November.  Much has happened since then, but the essence of the post remains true, now more than ever.

******************************************************

Dear Alex:

In the 10 months since I wrote your last retreat letter, much has changed, but the important things are still the same, and the best things have gotten better.

This past January, you were working hard to make the varsity baseball team. Since then, you have lettered in track and cross-country, become a cross-country co-captain, and gotten into the best shape of your life.

Ten months ago, you were starting to rehearse a play in which you had a good, but small role. Today, you are rehearsing for a play in which you have the lead, and getting ready to audition for a play in which you hope to be the lead.

In January, you were thinking (occasionally) about school and (rarely) your AP exams. Now, you are thinking about college and even pausing once in a while to reflect on possible careers.

It should be obvious that this is a time of transitions for you. While you still have unfinished business at De La Salle, you are right to look ahead and plan ahead, because that’s the only way you will move ahead.

This is an exciting time for you, Alex, and it will get better (although, at times, there will be some moments of anxiety). Enjoy this time, and keep doing the things you need to do to enhance your life experience – focus on your classes, the play, and getting ready for the next track season – but keep looking forward.

While change swirls about you, the important things have not changed. What I wrote in January remains true today: “You are a fantastic person. You have a wonderful heart and care deeply about your family and friends. I marvel at your relationship with Tori, and I love hearing you talk to your mother about the events of the day or the latest drama in your life. I never get tired of talking to you (as you know all too well), and I really never get tired of listening to you. You have a wisdom and insight beyond your years, and it is endlessly fascinating to me.”

And while so many good things have been constant, the best things have gotten better. You have a deeper faith and appreciation of what it means to be a Christian in our world. You have begun to understand the positive impact you can have on others if you utilize the gifts God has given you.

As you move forward, always remember Jeremiah 29:11:

"For I know the plans I have for you," declares the Lord, "plans to prosper you and not to harm you, plans to give you hope and a future."

Prosperity, hope, a future –these are the wonderful things that await you if you remain steadfast in your studies, your virtues, and your heart.

You and I have spoken many times of the need to build a strong foundation. You are nearing the time when that foundation will be most severely tested, when you go off to college and live, work, succeed or fail, on your own. I know the kind of man you are, and I see the kind of man you can become. It makes me smile to think of you reaching your potential.

The great American soldier, General Douglas MacArthur, prayed:

Build me a son, O Lord, who will be strong enough to know when he is weak, and brave enough to face himself when he is afraid, one who will be proud and unbending in honest defeat, and humble and gentle in victory.

Alex, you have these qualities and so much more. I do not like to think about next year, because when you leave for college, there will be an incredible emptiness in my home and in my heart. But as painful as that will be, it is the inescapable companion and irrefutable evidence of the extraordinary joy you bring me every day.

You, your sister, and your mother are gifts from God, Alex, and I love you with the depth and emotion that such gifts deserve. I love you without condition, wholeheartedly. You are my son and, along with Tori and your mother, you are my life.

Dad.

These Libertarians? They're a Joke.

Just returned to the Emerald City from day one of the State GOP Convention, during which each congressional district chose its national convention delegates.  In The Wiz's district, a total of six delegates were selected, of whom three have no business representing the party at the national convention.

During the presidential primary in February, our district voted for Mitt Romney.  So, our delegates have to commit to vote for Romney at least through the first ballot at the national convention.  In order to be considered for national delegate, each person had to sign an affidavit stating he or she would vote for Romney.

So, what's the problem?  Three of the delegates voted in by our district were selected by bloc votes cast by those committed to a former Libertarian now claiming to be a Republican, who puts one in mind of Professor Irwin Corey.  Not only were votes cast as a bloc, they were withheld from other candidates as a bloc, under orders from campaign organizers.

Here's how it works:  6 candidates were running for four spots, one of them being a "Corey" supporter.  The other "Coreybots" in the caucus all voted for the one Corey supporter only, and did not vote for any other candidate, thus reducing the votes the other candidates would have received and artificially inflating the relative votes of the favored Corey backer.

Now, let me make clear that I do not care how the vote came out, and I argued against naming a slate of candidates to exclude the Coreybots.

Here's what I find troubling and laughable at the same time:  these Coreybots think of themselves as libertarians.  Random House Dictionary defines "libertarian" as "a person who advocates liberty,  especially with regard to thought or conduct; a person who maintains the doctrine of free will."

These folks didn't exercise free will (unless you argue that it was an act of free will to give up their free will, in which case there are a few other descriptors that would apply) -- they voted in lockstep, following orders.  (And do they have to be so nasty about it?  Two of the elected ones called one of the other candidates a "witch.").

So listen up, bots -- don't give me any more of your claptrap about individual liberty and autonomy, until you start walking the walk. 

And by the way, we'll be watching you at the convention, to make sure you cast your vote for Romney.  If you don't, that affidavit you signed might be evidence in a perjury case.  Just sayin'.

Poor Don Verrilli, or, "Thank you, sir, may I have another?"

Donald Verrilli, Jr. is the Solicitor General of the United States.  He argues the federal government's position in the most important cases that reach the U.S. Supreme Court.

He's not having a good 2012.

After getting pounded by the court in the health care litigation arguments (see here and here), he had to turn around less than a month later and argue that Arizona's immigration law, SB 1070, had been preempted by federal immigraton law.  The case, Arizona v U.S., featured another legal beat-down and, unlike the health care cases, the liberal wing of the court didn't exactly leap to his defense.  To top it off, his Arizona opponent was the same person he had faced in the health care cases - the great Paul Clement.

Here's the background on the Arizona case. 

Arizona's Border Problems

Arizona has a 370-mile border with Mexico.  One-third of all immigration-related arrests take place in Arizona.  Between 2006 and 2010, 51 drug-smuggling tunnels were discovered in the border town of Nogales, Arizona.  Phoenix has experienced numerous home invasions and hundreds of reported kidnappings, all linked to the drug trade and human smuggling.  As far as 80 miles from the border and within 30 miles of Phoenix, the federal government has put up road signs warning the public:

Danger -- Public Warning -- Travel Not Recommended" -- "Active Drug and Human Smuggling Area" -- "Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed" 

Arizona spends hundreds of millions of dollars each year incarcerating criminal aliens and providing education and health care to aliens unlawfully present in the state. 

The list goes on and on.  You get the idea -- unlawful immigration is an enormous problem in Arizona.

SB 1070

To address the problem, Arizona passed SB 1070.  The Supreme Court argument focused primarily on sections 2, 3, and 5.

Section 2 says that for any lawful stop, detention, or arrest by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."  The law further provides that the person's "immigration status shall be verified with the Federal government[.]"

Section 3 provides for state enforcement of the federal laws requiring persons to carry alien registration documents.  This section expressly does not apply to persons authorized to be in the U.S.

Section 5 makes it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in [Arizona]."

So, if you get stopped or arrested in Arizona and the police have a reasonable suspicion that you are in the U.S. illegally, they have to verify your immigration status with the federal government.

The Court Challenge and Preemption.

The U.S. sued Arizona, and ultimately, the Ninth Circuit (of course!) held that the Arizona law was preempted by federal law and, therefore, invalid and unenforceable.

The doctrine of preemption is founded on the U.S. Constitution's Supremacy Clause, Article VI, Clause 2, which states:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Over the years, the cases interpreting the Supremacy Clause have described three types of preemption -- express preemption, field preemption, and implied preemption.  The first occurs when federal law expressly preempts state law; the second when federal law "occupies the field" to the exclusion of a state law.  Neither of these are applicable in this case.  Therefore, the question before the Supreme Court was whether federal law impliedly preempted state law.

Supreme Court decisions have made it clear that a law is not preempted unless there is clear evidence that Congress intended preemption.  A state law is not preempted merely because the executive branch claims the law is inconsistent with its enforcement priorities.

Verrilli at the Podium

In the Supreme Court, Paul Clement did his usual sterling job as attorney for Arizona, attacking the Ninth Circuit's decision and defending the Arizona law.

Then, it was Verrilli's turn.

Before Verrilli spoke even one complete sentence, the Chief Justice interrupted him:

Before you get into what the case is about, I'd like to clear up at the outset what it's not about.  No part of your argument has to do with racial or ethnic profiling, does it?  I saw none of that in your brief.

To which Verrilli responded, "That's correct."  But, a few moments later, Verrilli seemed to backtrack:

Now, we are not making an allegation of racial profiling.  Nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. . . . And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully -- 

JUSTICE SCALIA:  Sounds like racial profiling to me.

Later, Verrilli argued that "under the Constitution, it's the President and the Executive Branch that are responsible for the enforcement of Federal law[.]"  This argument proved to be a little too much for Chief Justice Roberts, who responded:

It is not an effort to enforce Federal law.  It is an effort to let you know about violations of Federal law.  Whether or not you enforce them is still entirely up to you. . . .Under 2(B), the person is already stopped for some other reason. . . . So that decision to stop the individual has nothing to do with immigration law at all.  All that has to do with immigration law is the -- whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you. It seems to me that the Federal Government just doesn't want to know who's here illegally or not.

Justice Alito joined in, focused on Verrilli's argument that the Arizona law interfered with federal immigration law enforcement priorities:

How can a State officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?

Verrilli responded:

[T]here's a difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.

In other words, Arizona police officers can contact the Federal government for immigration information voluntarily, but Arizona cannot tell them to do so.

At this point, even Justice Breyer was confused:

Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government.  And then it says that the Federal Government has -- any agency -- and then it says the Federal Government has an obligation to respond. . . .If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call? . . .Because in my mind, I'm not clear what your answer is to that.

Verrilli stumbled around for a few seconds until he heard the lilting voice of Justice Sotomayor.  Surely, this would be a lifeline, right?

Not exactly.

JUSTICE SOTOMAYOR:  Can I get to a different question? . . . Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?  Because I, frankly -- as the Chief has said to you, it's not that it's forcing you to change your enforcement priorities.  You don't have to take the person into custody.  So what's left of your argument?

That was a good question.  Apparently, what was left of Verrilli's argument was the notion that foreign policy requires the Court to invalidate the Arizona law.  Verrilli argued:

And so -- so you're going to have a situation of mass incarceration of people who are unlawfully present.  That is going to raise -- poses a very serious risk of raising significant foreign relations problems.  And those problems are real,  That is the problem of reciprocal treatment of United States citizens in other countries. 

JUSTICE KENNEDY:  So you're saying the government has a legitimate interest in not enforcing its laws?

Shortly thereafter, Justice Scalia took up this issue:

JUSTICE SCALIA:  Well, can't you avoid that particular foreign relations problem by simply deporting these people?  Look, free them from the jails. . . and send them back to the countries that are objecting. . . . What's the problem with that? 

GENERAL VERRILLI:  *  *  * Between 60 and 70 percent of the people that we remove every year, we remove to Mexico.  And in addition, we have to have the cooperation of the Mexicans.  And I think as the Court knows from other cases, the cooperation of the country to whom we are -- to which we are removing people who are unlawfully present is vital to be able to make removal work.  In addition, we have very significant issues on the border with Mexico.  And in fact, they're the very issues that Arizona's complaining about in that -- 

JUSTICE SCALIA:  So we have to -- we have to enforce our laws in a manner that will please Mexico.  Is that what you're saying? 

GENERAL VERRILLI:  No, Your Honor, but what it does -- no, Your Honor, I'm not saying that -- 

JUSTICE SCALIA:  It sounded like what you were saying. 

Mercifully, Verrilli's time ran out shortly after that exchange.  That brought Paul Clement back up for rebuttal, which gave him the opportunity to add the human touch to his brilliant constitutional analysis:

[L]ook at the declaration of Officer Brent Glidewell[.]  He pulled somebody over in a routine traffic stop and was shot by the individual.  Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal entry into the United States.  He was stopped on three previous occasions, and his status was not verified.  Now, if it had been, he certainly would have been apprehended.  In at least two of the stops, his immigration status wasn't checked because of a city policy, City of Phoenix. 

In the movie Animal House, Kevin Bacon is initiated into a fraternity by being ruthlessly paddled.  After each whack, he shows he can take it by saying, "Thank you, sir, may I have another?"

Don Verrilli can relate to Bacon's character.  The Obama administration hands him lousy case after lousy case, he goes up the Supreme Court and takes his lumps, then has to go back to his office and wait for the next loser.

Verrilli is an excellent lawyer (you don't get to be Solicitor General unless you 've got something on the ball) and the Court respects him.  It would be nice if his boss respected him enough not to keep sending him to the Supreme Court armed with the sort of arguments we've seen in the last couple months.

Understanding the Health Care Litigation, Part Three

First, the gloating.

Yesterday, I wrote:  "Commerce doesn't exist to be regulated until people engage in commerce. The ACA forces people to engage in commerce, then regulates them."

Today at the Supreme Court, Justice Kennedy asked the Solicitor General: "Can you create commerce order to regulate it?"

Now, I'm not saying that Justice Kennedy checks out the Wizard of Laws before important arguments, but is it more than a coincidence that his first question to the Solicitor General echoed the Wiz?  Just sayin'.

Now, to business.

Today's Arguments

Not a good day for the Obama administration or its Solicitor General, Donald Verrilli.  He was questioned relentlessly by the Justices -- especially Kennedy, Alito, and Scalia -- on the implications of the administration position that the individual mandate was founded on the Commerce Clause.

Here are three beautiful statements by Justice Scalia:

The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what -- what else can it not do?

          and

An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

          and

I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.

Verrilli had a difficult time, but as flustered as he got, Paul Clement, arguing for the 26 states challenging Obamacare, was that composed and cool under fire.  Here's an example from an exchange between Clement and Justice Breyer, who, as part of a question that ran two pages in the transcript, inquired whether Congress had the power to create commerce, based on the fact that Congress created a national bank, which was approved by the Supreme Court in the 1819 McCulloch v Maryland decision.  Clement replied coolly:

MR. CLEMENT: Well, Justice Breyer, let me start at the beginning of your question with McCulloch.  McCulloch was not a commerce power case.

JUSTICE BREYER: It was both?  

MR. CLEMENT: No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it's okay to conjure up the bank as an exercise of the commerce power.

That's pretty much the way the day went -- Verrilli struggling and Clement in command.  As most appellate lawyers will tell you, it's risky to predict outcomes based on questions during oral argument, but it's difficult to see this as anything other than a good day for Obamacare opponents.

Wednesday's Arguments on Severability and Medicaid

Read about severability here.  If the lower court decisions on severability were laid end to end, they would point in all directions.  Still, it's hard to imagine that this bill would have passed without the individual mandate, so if the mandate is declared unconstitutional, there is no logical reason the rest of the bill should survive.

The other issue is Obamacare's Medicaid expansion.  As described by the 26 states challenging the law:

Title II of the ACA expands the Medicaid program in multiple respects and transforms it from a cooperative program addressed to specific categories of the most needy into a mandatory program designed to fulfill the individual mandate for the entire non-elderly population with income below 138% of the federal poverty line. Whereas States traditionally were required to offer Medicaid only to those low-income individuals who fell within certain “categorically needy” groups (families with dependent children, elderly, blind, disabled, children, and pregnant women), and retained significant flexibility to determine whether and to what extent to cover other low-income individuals, the Act requires States to cover all individuals under age 65 with incomes up to 133% of the poverty level, with a 5% “income disregard” provision that effectively raises that threshold to 138%.

Congress could not require the states to implement and expand these programs through direct legislation, however, so it is attempting to accomplish it through the "spending power."  Congress has conditioned the receipt of all federal monies on state compliance with the new Medicaid provisions, thus effectively coercing state compliance by a kind of blackmail.  As the 26 states put it:

The ACA threatens States with the loss of every penny of federal funding under the single largest grant-in-aid program in existence—literally billions of dollars each year—if they do not capitulate to Congress’ steep new demands. There is no plausible argument that a State could afford to turn down such a massive federal inducement, particularly when doing so would mean assuming the full burden of covering its neediest residents’ medical costs, even as billions of federal tax dollars extracted from the State’s residents would continue to fill federal coffers to fund Medicaid in the other 49 States.

Ultimately, I think the Court may end up not deciding the Medicaid question at all.  If the Court finds the individual mandate unconstitutional and determines that it is not severable, the entire act, including the Medicaid provisions, crumbles.  At that point, the Medicaid issue is moot and can be reserved for another day.

Another fascinatiing day coming up on Wednesday, with severability being the big issue of the day.

Understanding the Health Care Litigation, Part Two

Round one is over, and the world waits anxiously for round two tomorrow in what is the most important Supreme Court case since Brown v Board of Education, and maybe since Marbury v Madison.

Today's Arguments

Today the Supreme Court heard arguments on whether it should or should not decide the health care cases because of the federal Anti-Injunction Act.  This law, passed in 1867, essentially provides that a tax cannot be challenged until it is paid.  One court found that, since the penalty (the alleged "tax") imposed by the Patient Protection and Affordable Care Act (ACA) for not buying health insurance does not take effect until 2014, and since therefore no one had been forced to pay the tax yet, the challenge to the law is not yet "ripe" for decision. 

All the parties challenging the law and the federal government agreed that the the case is ready to be decided, so the Supreme Court had to appoint an attorney, Robert Long, to argue that the the Anti-Injunction Act barred the proceedings.  Things didn't go too well for him.

From the questioning, it was fairly apparent that the justices want to reach the merits of the ACA litigation.  Justice Sotomayor asked Mr. Long to describe the "parade of horribles" that would occur if the court decided to reach the merits.  Much fumbling ensued, leading Justice Scalia to observe "there will be no parade of horribles."  Justice Breyer pointed out that the statute calls it a penalty, not a tax, and Justice Ginsburg observed that it is not a revenue-raising measure since, if everyone obeys the law, there will be no revenue associated with the penalty.

When the Solictor General, Donald Verrilli, argued that the penalty is not a tax, Justice Alito snagged him with the conflicting positions taken by the Administration.  To get the case heard, Verrilli argued the penalty is not a tax; but to get the law upheld, Verrilli argues the penalty is a tax, an inconsistency upon which Justice Alito seized:

General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

 So what was Verrilli's answer to that?  It turns out, the same words can mean different things on different days:

Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

Based on the tenor of the questioning, I think there is little doubt the court will brush aside the Anti-Injunction Act in order to get to the meat of the case.

Arguments Over The Individual Mandate

Today's argument was one hour and 29 minutes long. Tomorrow, the court has allotted two hours for the main event -- the argument over the individual mandate.

The ACA requires that virtually every living person in America -- except for illegal aliens and some other, incredibly narrow, categories -- must buy health insurance.  For the first time in the history of this nation, the federal government is requiring Americans to engage in commerce merely because they are alive.

There are a lot of requirements that arise once a person decides to participate in commerce, but there has never before been a law forcing people to make economic decisions.

The argument over the individual mandate --- also known as the mandatory coverage issue -- will focus on whether the federal government has the power to impose the mandate based on the Commerce Clause or the Necessary and Proper Clause. 

Article I, Section 8 of the Constitution provides:

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This provision only permits the Congress to make laws that are necessary to carry out its other powers, so to find the mandate "necessary and proper," the court will have to decide whether the mandate is permitted under Congress's other powers, which sends us right back to the Commerce Clause, Article I, Section 8:

The Congress shall have Power [...] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Commerce doesn't exist to be regulated until people engage in commerce.  The ACA forces people to engage in commerce, then regulates them.  There has never been a law like it, and the only reason there is any argument about its constitutionality is the Supreme Court's historical and ridiculous distortion of the Commerce Clause in the support of political aims.

The modern, nearly limitless, interpretation of the Commerce Clause had its genesis in the 1942 case of Wickard v Filburn.  The U.S. government had established a Depression-era scheme designed to prop up the price of wheat, and it worked.  In 1941, wheat producers cooperating with the "Agricultural Adjustment" program received $1.16 a bushel, compared to the world market price of $.40 a bushel. 

The federal regulations established wheat production limts based on acreage.  Filburn was a farmer who decided to grow more than his allotment, but he grew the wheat for his own use; he did not sell any of the wheat in interstate commerce.   Nonetheless, the court found that Filburn had violated the law, which was a valid exercise of government power under the Commerce Clause.  The court reasoned that, if Filburn had not grown the excess wheat for his own use, he would have had to buy wheat on the open market.  Although Filburn alone might not have been able to affect the market, the cumulative effect of thousands like him would be substantial.  Therefore, Congress has the authority to regulate a completely intrastate market if the cumulative effect of such activities would have a substantial effect on interstate commerce.

Thus, constitutional doctrine was founded on the "what-if-everyone-did-that" argument, explaining at least in part why Wickard v Filburn makes most lists of the worst Supreme Court decisions in history.

The health care cases go beyond Wickard.  Way beyond Wickard.  If the ACA is upheld as a constitutional exercise of Commerce Clause authority, there is nothing the federal government can't require under the same theory.  The government can tell us what to eat, what to wear, what to do, how many children to have -- there will be no limit.

To put it in Wickard terms, upholding the ACA would mean the government could not only tell us not to produce excess wheat, it could force us to stop producing wheat altogether and buy that wheat only from government-sponsored exchanges.  That is, it could if the anti-gluten forces don't get there first.

In other words, this case is huge.  The hugest.  Stay tuned.

An Open Letter to Michigan Republicans

Dear Michigan Republicans:

Stop it.  All of it.  Just stop.

It is truly amazing how we pay lip service to unity, then immediately turn around and try to tear each other apart.  This gives aid and comfort to the enemy, and it stokes the mistrust that so characterizes our current political process.

The negative campaigning, the dirty tricks, the middle-of-the-night meetings that rewrite the rule book – does it matter?  In the long run (meaning about six months from now), will any of this matter?

To some extent, of course it matters.  We have to be able to work together to accomplish our common goals, and our recent primary certainly did not bring us any closer together, but we have lost our focus on those common goals that unite us.  No two people have complete agreement on every issue -- how boring would that be? -- but I have witnessed people getting absolutely roasted over any minor deviation from an author's credo. 

Have you looked at Facebook lately?  I don't blame the Santorum folks for putting a positive spin on things, but the vitriol directed at the Romney campaign is out of place.  And Romney people, until now I didn't know you could be a sore winner.

And how can there be a split on the Credentials Committee vote awarding the at-large delegates?  It's arithmetic!  There is a right answer!

One thing in particular that needs to change -- elected or paid GOP leadership, including our national committee people and all members of the state committee, should not be endorsing candidates in a contested primary.  If you don't know why, look at the current controversy surrounding the Credentials Committee and the announced endorsements of the 4-2 majority.  Call it what you want, but it taints the process.  The Party should be the Party of all the candidates, ready to leap into action to support the winner of the primary, not divided by pre-primary endorsements that suggest the deck is stacked or that give the appearance of impropriety.

We are fond -- very fond -- of referring to Ronald Reagan, and the tug-of-war over his mantle is sometimes amusing to watch.  But one thing Reagan did was to articulate his vision of America.  Not a set of legislative priorities, but a vision of what this country means and could be.  Then the voters came to that vision.  As Reagan said in his famous 1974 "The Shining City Upon a Hill" speech:

Standing on the tiny deck of the Arabella in 1630 off the Massachusetts coast, John Winthrop said, “We will be as a city upon a hill. The eyes of all people are upon us, so that if we deal falsely with our God in this work we have undertaken and so cause Him to withdraw His present help from us, we shall be made a story and a byword throughout the world.” *  *  *

We cannot escape our destiny, nor should we try to do so. The leadership of the free world was thrust upon us two centuries ago in that little hall of Philadelphia. In the days following World War II, when the economic strength and power of America was all that stood between the world and the return to the dark ages, Pope Pius XII said, “The American people have a great genius for splendid and unselfish actions. Into the hands of America God has placed the destinies of an afflicted mankind.”

We are indeed, and we are today, the last best hope of man on earth.

Which of our candidates is describing this kind of vision of America?  Which one of us is doing so?  Has the polarization that grips the national political scene taken hold of the GOP here in the Enchanted Mitten?

The good news is that this can all be fixed.  Easily, in fact.  It will take, however, an en masse commitment to truth, transparency, and togetherness.  For one, the Credentials Committee should reconsider its recent vote, and the Santorum campaign should drop all challenges.  There should be a voluntary 30-day moratorium on saying anything bad against any fellow Republican.  Let's focus on the target-rich environment the Democrats have provided, okay?

And in the future, let's remember that things don't need to be rigged.  Debate doesn't need to be shut down.  We don't need to "get around" anyone.  Our party is about fair, open, honest debate and an unswerving commitment to freedom. 

Time to get back to basics, before it's too late.

The Wiz.

California Hippiespeak Comes to the U.S. Supreme Court

Although your Wizard has never personally argued a case before the U.S. Supreme Court, it is undoubtedly a daunting task.  The courtroom itself is majestic and impressive, and it is designed -- if not in intent, but certainly in effect -- to be humbling. 

One can only imagine, then, the butterflies that took up residence in the digestive system of one Jonathan Libby, who recently argued for the respondent in U.S. v Alvarez. 

Mr. Libby's client, Xavier Alvarez, had been convicted of violating the Stolen Valor Act, a 2006 federal law that made it a crime for a person to falsely claim that he had been awarded a medal for service in the armed forces.  It turns out that Alvarez, an elected member of the Board of Directors of the Three Valleys Water District in Claremount, California, stated to his fellow members during a meeting: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medial of Honor.  I got wounded many times by the same guy. I'm still around.”

These statements were lies—he never served in the Marines or received a Medal of Honor. In fact, Alvarez had frequently lied about his accomplishments in the past, often fabricating sensational stories about his purported military service.

After his conviction, Alvarez appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the conviction, holding that the Stolen Valor Act violates the First Amendment because it unconstitutionally limits free speech and is not narrow enough to meet a “compelling government interest.”

So that brings us to the argument before the Supreme Court.  After hearing from the U.S. Solicitor General, the Court called on deputy public defender Jonathan Libby:

          MR. LIBBY: Thank you, Mr. Chief Justice, and may it please the Court:

The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie. It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.

CHIEF JUSTICE ROBERTS: What is -- what is the First Amendment value in a lie, pure lie?

 MR. LIBBY: Just a pure lie? There can be a number of values. There is the value of personal autonomy.

 CHIEF JUSTICE ROBERTS: The value of what?

MR. LIBBY: Personal autonomy.

CHIEF JUSTICE ROBERTS: What does that mean?

 MR. LIBBY: Well, that we get to -- we get to exaggerate and create -

CHIEF JUSTICE ROBERTS: No, not exaggerate -- lie.

MR. LIBBY: Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain. That was creating a persona, and he made things up about himself -

CHIEF JUSTICE ROBERTS: Well, but that was for literary purposes. No one is suggesting you can't write a book or tell a story about somebody who earned a Medal of Honor and it's a fictional character, so he obviously didn't. It just seems to me very different.

 MR. LIBBY: Perhaps. But there are other things. In addition to the fact that people tell lies allows us to appreciate truth better.

So Mr. Libby would have the Court create constitutional doctrine on the psychobabble of "personal autonomy" and "lies allow us to appreciate truth better."  I think Mr. Libby may have spent too many years in the public defender's office or in California or both.  How about "murder is an expression of self-esteem and helps us appreciate life better" -- does that argument work for you?

I cannot predict the outcome of this case -- the Court will be sympathetic to Congress's intentions, but it has applied the First Amendment pretty broadly -- but I pray that, even if Alvarez prevails, the Court does not turn its hallowed courtroom into a haven for arguments more appropriately made on the Jerry Springer or Dr. Phil shows. 

Understanding the Health Care Litigation, Part One

After all the politics appearing in these hallowed pages lately, it's time to get back to fundamentals, as befits the Wizard of Laws.  (Though I dare say that my January 7 and November 9 posts below have been amply vindicated).

The big event of the U.S. Supreme Court's 2011-2012 term -- and perhaps the most important since Brown v Board of Education -- will be the decision on the various cases involving the Patient Protection and Affordable Care Act. commonly known as Obamacare.

The issues to be argued are known generally by the public, but few understand them in any detail.  For example, during a recent forum, the Lieutenant Governor here in the Enchanted Mitten, arguing for a state-established health care exchange, said that even if the Court finds the individual mandate unconstitutional, it will have no effect on health care exchanges, since HCEs are not before the Court.  This position is not exactly accurate.  If the Court determines that the individual mandate is unconstitutional. it will then  expressly decide whether the entire law must be struck down, including those provisions pertaining to health care exchanges.

The issue of whether to invalidate an entire law when one provision is declared unconstitutional is what is known as the issue of severability.  In other words, can the offending provision be severed from the rest of the law so that the law remains in effect, minus the severed provision?

There is a fair amount of misconception about severability.  Many people believe that an unconstitutional  provision cannot be severed unless there is a severability clause in the law itself.  Since Obamacare contains no severability clause, the argument goes that declaring the individual mandate unconstitutional will strike down the entire law automatically.

This is not true.

The Supreme Court established the applicable severability standard in the 1987 case of Alaska Airlines v Brock, in which it held that an unconstitutional provision may be severed "unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not."  So, severability is presumed, unless it is clear that, without the unconstitutional provision, Congress would not have enacted the law.

The Brock standard is not exactly a model that lends itself to metaphysical certainty.  The Court found that the "more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress."  Again, there is a certain subjectivity to this standard, which relies on faithful application by the courts.

Yes, I said "faithful," not "consistent."  In the four cases in which the individual mandate was found unconstitutional, the courts dealt with severability in four separate ways.  The courts in question decided:

1.  Only the mandate and those directly-dependent provisions which make specific reference to the mandate were to be severed;

2.  The mandate is non-severable and the entire law is invalidated;

3.  Only the mandate itself is severed; and

4.  The mandate is non-severable from the guaranteed-issue and preexisting conditions provisions, but the rest of the law remains intact.

One Supreme Court petitioner wrote:

As these four divergent opinions make clear, there is serious confusion as to how to apply this Court's severability jurisprudence to the [Act].  That confusion stems in large part from the unusual facts at hand, including the extraordinary length and complexity of the Act, and 'the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.'

As you can tell, this is a complicated issue, but it is now before the Court and, if the individual mandate is declared unconstitutional, the Supreme Court will then determine whether Congress would have enacted Obamacare without the individual mandate.  If the Court declares the mandate non-severable, the entire law will be invalidated, including those provisions related to health care exchanges.

Next time:  a closer look at the individual mandate and interstate commerce.

The Wizard of . . . Politics?

After the GOP at Oakland University on November 9, I wrote:

Santorum:  He does well on every question.  They just won't ask him enough of them.  If he was in the middle of the stage and got 10 questions, the dynamics of this race would change instantly.

Now, after Iowa, there will be two more debates before the New Hampshire and South Carolina primaries.  The debates will surely feature more questions to Sen. Santorum, and we'll find out quickly if The Wiz is ready to branch out.

Stay tuned!

America's Newest Protected Class -- Felons!

Your Wizard doesn't usually have a crystal ball, but he may have accidentally careened into the future over a year ago when he wrote about growing efforts to give special status to felons.  At that time, there were signs that in elections, the census, and the workplace that felons were going to get special status, on the theory that, since minorities commit felonies in greater proportion than white people, to discriminate against felons is nothing more than thinly veiled racial discrimination.

These signs are now coalescing into a full-fledged attempt to elevate felons into America's newest protected class.  Massachusetts now prohibits employers from asking about criminal records on initial employment applications, except under certain limited circumstances.  The city of Cleveland will no longer ask applicants whether they have ever been convicted of felonies.

In fact, over 30 cities, including Detroit and Kalamazoo here in the Enchanted Mitten, have joined the "ban the box" (BTB) movement to prohibit any job application questions about a prospective employee's criminal history.  Litigation is pending in Illinois, New York, Pennsylvania, and California, designed to hold employers responsible for discrimination because they asked for criminal histories on their job applications.

The professed theory behind BTB is that by removing criminal history as an automatic disqualifier at the outset, more felons will be able to get deeper into the application process and be judged on their positive qualities, not just on their criminal records.  This is obviously based on the premise that, for many jobs, a felony history is irrelevant and should not disqualify the applicant,

The BTB theory falls apart, however, when one looks at the later stages of this new employment process.

Let's take a look at Detroit's approach.  Section 13-1-12 of the City Code provides:

Except as provided for in section 13-114 of this Code, the City of Detroit shall not inquire into or consider the criminal conviction of an applicant for employment with the City of Detroit until the applicant is being interviewed or is otherwise qualified for employment by the City.

In other words, don't ask until later.

This approach comes completely asunder with subparagraph 2 of Section 13-1-14:

This division does not limit the right of the City:
(2) To otherwise take into consideration during the hiring process a potential employee's criminal conviction[.]

So, you can't ask about a criminal conviction on the application, but you can take it into consideration any other time you feel like it.

What kind of protection is that?

Answer:  it is no protection at all, but it allows the City to say it is doing something to help felons and, more importantly, it reveals the lie inherent in the "ban the box" lunacy -- while pretending to assist felons in re-entry into the workplace and society, the code contains a loophole big enough to drive a stolen semi through.  And it's all to protect the people who really need protecting -- city employees.

Despite the hypocrisy and empty promises, it's only a matter of time before BTB-types step up the pressure and start getting real concessions from city leaders.  At some point, it will be completely illegal to inquire at any time into an applicant's criminal background and, given the growing segment of our population with felony records, our government offices will be staffed with sizable percentages of felons.

Then crime won't just be for our elected officials.  But, that's just my crystal ball talking.