Capitol Follies

Scientists announced this week that they had found ten billion habitable planets in the Milky Way.  The announcement was cheering, raising the possibility that there was some intelligent life somewhere in the universe in a week where it was clear there was hardly any in the Capitol.

I'm talking about the three day argument before the Supreme Court on the 2,700 page wonk wet dream, ObamaCare.  As you recall a Democrat Congress rammed this legislation down our throats on Christmas Eve led by Nancy Pelosi (soi-disant Catholic Theologian and Constitutional Scholar, San Francisco), aided by some high kicking and legerdemain by her Senate colleagues.  They had to resort to funny business because their efforts to get support from outside their own party failed, despite such tear jerking appeals to emotion as the story that Congresswoman Louise Slaughter's constituent would otherwise be forced to wear her dead sister's dentures  for the rest of her life.  Most of us didn't believe the only option to get this woman her own dentures was to destroy the world's best medical delivery system and a large part of the economy with it.

Professor David Bernstein of Volokh Conspiracy -- without question the best source of information on questions of constitutional law -- reviewed for our entertainment the statements of the Act's proponents when we argued the Act was unconstitutional. 

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an "individual mandate," she replied with a mocking "are you serious? Are you serious?"

Here are a few more pearls of constitutional wisdom from our elected representatives. 
Rep. Conyers cited the "Good and Welfare Clause" as the source of Congress's authority [there is no such clause].
Rep. Stark responded, "the federal government can do most anything in this country. "
Rep. Clyburn replied, "There's nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?"  
Rep. Hare said "I don't worry about the Constitution on this, to be honest [...] It doesn't matter to me." When asked, "Where in the Constitution does it give you the authority ...?" He replied, "I don't know." 
Sen. Akaka said he "not aware" of which Constitutional provision authorizes the healthcare bill.
 Sen. Leahy added, "We have plenty of authority. Are you saying there's no authority?" 
Sen. Landrieu told a questioner, "I'll leave that up to the constitutional lawyers on our staff."

Something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.

 My online friend "daddy" spoke for me when he posted 

I wonder what our Constitutional Founding Fathers, Washington, Madison, Jefferson, Adams etc, would have thought about the spectacle of the Supreme Court deciding the Constitutionality of a 2700 page Bill,
that no Senator has completely read, that no Congressman has completely read, that the Attorney General and the President and the Vice president have not completely read, that the Solicitor General arguing the case has not completely read, and that no member of the Supreme Court has completely read?

My guess is they would be less than impressed.

What a way to run a Republic.  

Well, despite the prognostications of the usual media Court watchers, in three days of argument the Court seemed to find the constitutional basis for the Act missing and its consequences dire.  It's far from certain that the Court will deem the  sticking point "individual mandate" which requires every American to purchase health insurance" constitutional or what it will do if it decides it isn't constitutional, but every commentator from Jeffrey Toobin to Mother Jones  seems to believe the government failed to meet its burden.  Highlights of the Government's disastrous arguments appear everywhere.  Hilarity ensued, as was inevitable when the Solicitor General argued one day in Court that the mandate was a penalty, not a tax, and the very next day  that it was a tax. 

My favorite excerpts were of Justices Breyer and Kagan, trying to bolster the Solicitor General.  Reason liked Breyer's contentions on his version of a no limits Commerce Clause so amusing they  created an animated version of it:



Justice Kagan's effort to  respond to an argument on the third day respecting the  claim by various states that the federal government could not coerce the states to expand Medicaid without violating the principles of federalism in the Constitution was surely not her finest hour.

[Here is] Justice Elena Kagan in this exchange with Paul D. Clement, a lawyer arguing against Obamacare. They are debating whether the authority the federal government is assuming is coercive. Kagan thinks that it is not, because the federal government is giving states "a boatload of federal money for you to take and spend on poor people's healthcare" (her words).

Clement insists that this money comes laden with coercive conditions, so Kagan presents this hypothetical:

JUSTICE KAGAN: Now, suppose I'm an employer, and I see somebody I really like, and I want to hire that person. And I say, I'm going to give you $10 million a year to come work for me. And the person says, well, I--you know, I've never been offered anywhere approaching $10 million a year. Of course, I'm going to say yes to that. Now we would both be agreed that that's not coercive, right?

MR. CLEMENT: Well, I guess I would want to know where the money came from. And if the money came from--

JUSTICE KAGAN: Wow. Wow. I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?

MR. CLEMENT: Sure, if I told you, actually, it came from my own bank account. And that's what's really going on here, in part.


Law professor Ann Althouse wonders, "Has a Supreme Court [justice] ever said "Wow. Wow" before?"

Probably not, Ann, but have we ever before confirmed to the Supreme Court a lawyer who thought the government constitutionally could force us to buy broccoli?

Of course, however the Court rules, the persons who must handle our everyday needs -- employers, accountants, doctors, nurses, hospitals, insurance companies, states -- are put to extra work, expense and our medical system will be overburdened if not paralyzed by this outrageous Congressional overreach and carelessness.  I happen to think that the upheaval will be less if the Court acts quickly to overthrow the entire thing, but Congressional negligence has and will continue to cost us a great deal whatever happens.

But then, that's par for the course. If the legislative branch really wants to be respected in the courts and public eye, it's time for them to actually start reading what they legislate , quit passing fancy mandarin-generated nonsense that the unelected, barely overseen executive branch fills in as it damned well pleases, and start repealing  and revamping legislation which has ceded to the executive branch far too much power to actually do the legislative work that is Congress' right and responsibility.

Two examples this week make my case:  one concerns the EPA and the other  the Endangered Species Act. Don Surber:

Last week, the Supreme Court unanimously slammed the Environmental Protection Agency for not giving a citizen the chance to appeal EPA's edicts.

Also, an Obama-appointed federal judge slammed the EPA for arbitrarily overruling the Army Corps of Engineers on a coal mine's water permit.

So what did Lisa Jackson do?

She doubled down today.

She unleashed another nonsensical edict on the environment that is based on her socialism and not on science.

From the Washington Post:

The Environmental Protection Agency issued the first limits on greenhouse gas emissions from new power plants Tuesday, a move which could end the construction of conventional coal-fired facilities in the United States.

If Congress wants to starve the  country of energy, drive up everyone's fuel costs, put coal mines out of business and miners out of work, and increase our debt by throwing  billions of  tax dollars away on fruitless "green energy" projects which only reward the Democratic Party  funders, let them vote straight up to do that, instead of  handing the task off to bureaucrats against whom we must all fight in court to survive. 

And if the Congress really means to turn California's once fruitful Central Valley into  a desert and its people in need of government-provided food, let Congress vote for that instead of passing and keeping in place the Endangered Species Act which protects the inedible delta smelt while devastating  farmers and those who supply them with goods and services.  Let them stand in the well of the Congress and argue that the delta smelt means more to the world than the productivity of the Central Valley and those who live there. This Act alone has done to California famers what Stalin did to the Ukraine: starve them out. And by failing to cover this the media is all Duranty now.

By passing ObamaCare on such flimsy evidence, with such preposterous justifications and by  failing to repeal the Endangered Species Act and the legislation creating the EPA, Congress has lost any right to be considered a respected, coequal branch of the government.

Maybe the Republicans in the Senate have caught on as Matthew Continetti reports:

As a possible anti-Obamacare majority was forming inside the Supreme Court chambers, the magnitude of this week's Democratic rout was becoming apparent across First Street. Senate Democrats had hoped to spend the last few days before Easter Recess reminding Americans that Republicans are the protectors of those horrible, greedy oil companies. To that end Harry Reid, Chuck Schumer, and Dick Durbin had Bob Menendez introduce a bill eliminating tax breaks for carbon energy producers and replacing them with tax breaks for green energy companies. The Democratic leadership had expected the Republican caucus to block debate on the Menendez proposal, handing liberals and the White House a tactical victory.

This is your Democratic-controlled Senate at work: No budget in three years but plenty of votes to score partisan points. What the oaf from Nevada had not anticipated, however, was that Republican leader Mitch McConnell would allow debate on the bill, thereby providing the Senate GOP an opening to blame Obama's anti-drilling policies for high gas prices. The Menendez proposal went down in the end as expected, but not before Republicans turned the tables on Democrats.

The week ends, then, with the Democrats in disarray as a result of the president's gaffe, unanticipated trouble at the Court, and shrewd maneuvering by McConnell. Having spent most of 2012 under fire for the mind-numbing Republican primary and for not properly appreciating Sandra Fluke's unique contributions to society, this was the first good news cycle for conservatives in a long time. Might as well enjoy it while it lasts. Rarely do politics get better than this. Though they might on Nov. 6.


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