And I don’t understand…

The New Neo Posted on by

…this reaction at all:

Obama just won a second term.

I disagree—although of course, Obama may win anyway. But that was always true.

I think the SCOTUS decision today actually reduces Obama’s chances of winning, if it affects them at all. I cannot imagine that people who dislike Obamacare will now shrug their shoulders and say, “Oh, the Supreme Court said the mandate’s a tax, so it must be okay.”

The mandate’s unconstitutionality was hardly the reason that most people were against the bill. Although it certainly was (and remains) a factor, few people are that legalistic in their thinking. They were (and should remain) against Obamacare for a host of reasons, including (but not limited to) government intrusion, its effect on the economy, and how it was passed. Today’s ruling should not change that, it should only intensify the desire to repeal it and replace it with something better.

Of course, people are strange. But as I said in this post:

This should fire up the troops on the right as almost nothing else could. If the American public is foolish enough to re-elect Obama and the Democrats, I suppose it deserves what it gets.

It’s understandable to be down about today’s ruling. And no doubt the left will crow over its victory. No matter. This is hardly the time to give up; it should be the time to say we’ve not yet begun to fight.

[NOTE: And yes, I understand that we may face a tipping point, and I understand what the danger is to liberty. My favorite literary passage that expresses this is from Dostoevsky’s The Brothers Karamazov, the section known as “The Grand Inquisitor”:

Oh, never, never can [people] feed themselves without us [the Inquisitors and controllers]! No science will give them bread so long as they remain free. In the end they will lay their freedom at our feet, and say to us, “Make us your slaves, but feed us.” They will understand themselves, at last, that freedom and bread enough for all are inconceivable together, for never, never will they be able to share between them! They will be convinced, too, that they can never be free, for they are weak, vicious, worthless, and rebellious. Thou didst promise them the bread of Heaven, but, I repeat again, can it compare with earthly bread in the eyes of the weak, ever sinful and ignoble race of man? ]

The HCR ruling: there’s a pony somewhere

The New Neo Posted on by

Here it is:

On the mandate, the Chief [Justice Roberts] then goes on to agree with Randy Barnett’s activity/inactivity theory. He writes:

“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers. Industrial Union Dept., AFL”“CIO v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”

Roberts also construes the Necessary and Proper Clause narrowly ”” construing it to bring inactivity in the scope of the Commerce Clause would not be “proper”:

“[S]uch a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.”

So, what difference does it make, if Obamacare is held to be a constitutional tax? I repeat: it sets a precedent that limits the Commerce Clause.

The remedy for Obamacare is now a political one. We need to emphasize that. The Court will not save us. But this is a step better than if SCOTUS had said that anything goes under the Commerce Clause.

Of course, you could say this is a distinction without a difference. Call it a tax, call it macaroni—a mandate by any other name is still as stinky, and it should have been declared unconstitutional. I agree.

It underscores the task before us between now and November of 2012, both on the congressional and the presidential level. It is especially important to elect a Republican president to appoint new Justices to replace those who are likely to retire in the next few years. This is a long struggle, not a short one.

[NOTE: The title of the post refers to this joke, which apparently was Ronald Reagan’s favorite.]

The Humpty Dumpty ruling: “Ah, but it’s not a mandate, it’s a tax,” says SCOTUS

The New Neo Posted on by

Justice Roberts has joined the liberal wing of the Supreme Court in ruling that the HCR bill is constitutional, 5-4.

It seems that, when faced with the dilemma of possibly invalidating a huge act of Congress, the Court sidestepped that particular steaming pile of doo-doo and accepted the Democrats’ position that, although they were careful to make sure it was not called a tax for the purpose of passing it (a political move), it nevertheless could be considered a tax for the purpose of constitutionality (a legal one).

Reports are preliminary; more, much more, will be coming later in the day. But it also appears that the individual mandate was voted unconstitutional, 5-4. That doesn’t matter for the purposes of Obamacare, which stands. But it matters for considering the all-important issue I mentioned yesterday in this post:

I’m far more concerned with the precedent the Court will set regarding the further expansion of the Commerce Clause [than with its ruling on Obamacare itself]. If the Court fails to declare a federal mandate of this type unconstitutional, that would be an enormous triumph for “progressives”—far beyond the momentary victory of the Court’s upholding Obamacare.

Many conservatives may not see it that way, but I stand by my words, although people may consider them scant comfort.

In the same post I wrote that whatever happened with the mandate and the Court (short of a total invalidation of the bill, which never seemed likely to me), it could be fixed by changing the bill and clearly making it a tax, if the Democrats gained control of the legislature in 2012. Well, now they won’t have to do that, will they? It’s the Republicans who will need to take control and undo what was done by the previous Congress. This should fire up the troops on the right as almost nothing else could. If the American public is foolish enough to re-elect Obama and the Democrats, I suppose it deserves what it gets.

It also is scant comfort to me that I was correct in my prediction, here:

Maybe it’s just my tendency towards brooding, but even though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people, and so it would require a very high burden of certainty that it’s unconstitutional before declaring it so.

They wanted a way out, and they took it.

It’s interesting that people have been joking, “why don’t we just ask Justice Kennedy what he thinks, since he’s always the determining vote in a 5-4 decision?” Well, this time that wisdom was wrong; it was Justice Roberts who swung.

And I bet that liberals won’t have any trouble whatsoever considering this particular 5-4 vote highly valid, even though it’s as close as it can get.

[NOTE: I call it a Humpty Dumpty ruling because of this passage from Through the Looking Glass, in which Alice has a chat with Humpty Dumpty:

…As I was saying, that seems to be done right – though I haven’t time to look it over thoroughly just now – and that shows that there are three hundred and sixty-four days when you might get un-birthday presents – ‘

‘Certainly,’ said Alice.

‘And only one for birthday presents, you know. There’s glory for you!’

‘I don’t know what you mean by “glory”,’ Alice said.

Humpty Dumpty smiled contemptuously. ‘Of course you don’t – till I tell you. I meant “there’s a nice knock-down argument for you!”‘

‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’ ]

On the eve of the Obamacare decision…

The New Neo Posted on by

…I thought you might like to read this remarkably prescient and cogent article by David Rivkin. Amazingly, it was written in 1993, but it is right on target for today.

I think it is of no small significance that Rivkin was born in the Soviet Union, and emigrated here with his parents when he was young. Having experienced life in a totalitarian leftist state can tend to concentrate the mind and create an intense appreciation of liberty.

I haven’t been this nervous…

The New Neo Posted on by

…about a pending SCOTUS decision since Bush v. Gore.

And back then I was on the other side.

[ADDENDUM: It occurs to me that I need to explain why I feel this degree of nervousness.

It’s not about Obamacare, although that does matter to me. But whatever way the Court rules, the ultimate fate of Obamacare will be determined by the upcoming election. If the Democrats are victorious, Obamacare can be easily fixed to eliminate the individual mandate and call it a tax, if need be. If Republicans take control, the bill can be repealed or unfunded, even if SCOTUS decides to uphold its constitutionality tomorrow.

I’m far more concerned with the precedent the Court will set regarding the further expansion of the Commerce Clause. If the Court fails to declare a federal mandate of this type unconstitutional, that would be an enormous triumph for “progressives”—far beyond the momentary victory of the Court’s upholding Obamacare.]

The campaign against Scalia continues…

The New Neo Posted on by

…with columnist E.J. Dionne quite predictably calling for his resignation (preferably, I assume, while Obama is still in office).

And here’s Ed Whelan’s complete takedown of Dionne’s arguments.

But the fact that Whelan exposes Dionne’s errors probably won’t matter all that much. I very much doubt that Dionne is trying to be either fair or accurate (if so, he’s remarkably incompetent). He’s trying to rabble rouse, and way too many of the people who would agree with Dionne’s conclusions and cite him approvingly are not going to bother to read Whelan in the National Review or to check things out for themselves.

Activist Court?

The New Neo Posted on by

The left is busy criticizing the Supreme Court as “activist” and biased in advance of any possible ruling against Obamacare. Oh, it’s perfectly fine for the Court to be activist when it is stretching the Constitution to fit the leftist agenda. Finding a right to privacy in order to guarantee abortion nationwide? No problem. And the left never met an extension to the Commerce Clause that it didn’t like.

But if there is a case in which the Court steps back in order to curtail the powers of the federal government and return to a former and stricter state of constitutional interpretation—well, that’s unconscionably activist. And of course the Roberts Court has been doing that more and more, right?

Nope, wrong, says Jonathan H. Adler at Volokh—and, of all things, the the NY Times is his source of information:

The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens). This does not mean the Roberts Court’s decisions are correct and there are exceptions to every rule. Nor does the court’s past conduct necessarily predict the future. It does, however, mean that when one looks at the Court’s overall behavior (and not at a single case) it is inaccurate to say that this Court is particularly “activist” in moving the law in a conservative direction by overturning precedents and invalidating federal laws.

But people such as James Fallows, for example, don’t like to let the facts get in the way of a good argument.

The BBC criticizes itself

The New Neo Posted on by

At least a little, anyway.

I’m not sure whether this signifies a thing, really. It may just be a tiny bit of window dressing. But nevertheless:

The BBC’s coverage of the Arab Spring has been heavily criticised ”“ by the corporation’s bosses.
Head of news Helen Boaden admitted that her journalists got carried away with events and produced ”˜over-excited’ reports.

She told a BBC Trust report that in Libya, where reporters were ”˜embedded’ with rebels, they may have failed to explore both sides of the story properly.

Middle East editor Jeremy Bowen was among those criticised in the study into coverage of the uprisings, which found that ”˜excitement’ did sometimes ”˜infect’ the reporting, which some viewers described as ”˜too emotive’ and ”˜veering into opinion’.

Ya think?

The head of the BBC since 2004 has been Mark Thompson, who does seem a mite to the right of the usual—or at least, less aggressively and determinately to the left:

September 2010 Thompson acknowledged some of the BBC’s previous political bias he had witnessed early in his career. He stated: “In the BBC I joined 30 years ago there was, in much of current affairs, in terms of people’s personal politics, which were quite vocal, a massive bias to the left”. He added: “the organisation did struggle then with impartiality”, though also suggested that there was now “much less overt tribalism.”

That doesn’t mean that BBC coverage is now fair. But it does mean (perhaps; those who watch the BBC can comment more knowledgeably on this than I can) that there is an effort being made to not demonstrate quite as overt a leftist bias as before. For example, on Israel, Thompson must be doing something right if he’s garnering this sort of criticism. Remember as you read this that Britain and Europe are far more anti-Israel than anyone except the far left (and neo-Nazis) in the US:

A number of commentators have suggested that Thompson has a pro-Israeli editorial stance, particularly since he supported the controversial decision by the BBC not to broadcast the DEC Gaza appeal in January 2009. Complaints to the BBC, numbering nearly 16,000, about the decision were directed to a statement by Thompson.

Journalist Yvonne Ridley* wrote in CounterPunch that “D-G Mark Thompson might not care much for the BBC’s reputation but he should have a duty of care to his staff because it looks as if his pro-Israel stance is now endangering the safety of his own news teams, many of whom find his views repugnant in any case” and with respect to his 2005 meeting with Ariel Sharon, wrote “Never before had any BBC Director-General embarked on such a meeting and references to it are removed continually from Thompson’s biography on Wikipedia, an indication of just how sensitive the whole event remains.” Tam Dean Burn wrote in The Herald (Glasgow) “I would argue that this bias has moved on apace since Thompson went to Israel in 2005 and signed a deal with prime minister Ariel Sharon on the BBC’s coverage of the conflict.” Journalist Muhammad Idrees Ahmad wrote in CounterPunch that “the BBC’s director general Mark Thompson can hardly be described as a disinterested party: in 2005 he made a trip to Jerusalem where he met with Ariel Sharon in what was seen in Israel as an attempt to ‘build bridges’ and ‘a “softening” to the corporation’s unofficial editorial line on the Middle East.

* For those who can’t quite recall Ms. Ridley’s impressive (and I don’t mean that in a good way) bio, here it is:

Yvonne Ridley…is a British journalist, war correspondent and Respect Party activist best known for her capture by the Taliban and subsequent conversion to Islam after release, her outspoken opposition to Zionism, and her criticism of Western media portrayals of the War on Terror. Ridley currently works for Press TV, the Iranian-funded English language news channel.

RIP, Nora Ephron

The New Neo Posted on by

The news that Nora Ephron has died at 71 took me by surprise. I had no idea she was even ill, but it was more than that—she was just so funny (which is a stupid thing to say, I know, because of course the comic can’t cheat death any more than any other human being can).

Ephron’s essays were usually laugh-out-loud funny, and of course her script for “When Harry Met Sally” is justly admired. But my favorite works of hers were I Feel Bad About My Neck and Heartburn, the book in which she transformed the base metal of marital betrayal by husband Carl Bernstein of Watergate fame into the gold of a screamingly funny bestseller (and then a much-inferior movie with Meryl Streep). Bernstein learned, almost certainly to his dismay, that there can be consequences for breaking your marital vows to a writer. And perhaps Ephron got the last laugh on Bernstein’s paramour, Margaret Ann Jay, Baroness Jay of Paddington (yes, her real name), when that lady’s husband ended up having an affair and fathering a child with the Jay’s babysitter.

But where was I? Ah, yes, Ephron. Here she is, talking about the process of getting older, and about writing:

Scalia the ranting old man

The New Neo Posted on by

In yesterday’s SCOTUS decision in Arizona v. US, something about Justice Scalia’s dissent seems to have outraged quite a few commentators, including law professor Paul Campos, who wrote a piece in Salon entitled “Antonin Scalia, Ranting Old Man.”

At 76, I’m not sure Scalia qualifies as definitively “old,” at least not in SCOTUS terms. And although he may not be climbing Mt. Everest, he seems to still have his wits about him. Not according to Campos, though:

Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.

What is the passage Campos gives to illustrate this intolerant, pompous, intemperate, hysterical jeremiad against the foreign invaders threatening all that’s holy? This:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants ”” including not just children but men and women under 30 ”” are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Now, a person may certainly validly disagree with those sentiments or with Scalia’s opinions in general. A person may think that such remarks have no place in a legal opinion written by a Supreme Court Justice. But it’s really really really difficult to see them as meeting Campos’s description of Scalia as ranting and hysterical.

Puzzled, I turned to look at Scalia’s entire dissent (which runs about 20 pages long, beginning at page 30), assuming I’d find a lot more there to justify the criticism of Scalia. But the only other passage I could found in a quick reading that could even remotely be considered to be intemperate editorializing on Scalia’s part was on page 48, when he calls Congress’s allocation of funds for federal enforcement of immigration laws “inadequate” (keeping in mind, though, that the administration itself has said it lacks the resources to enforce federal laws on the matter) and refers to Obama’s targeting of that funding as “unwise.” That last word—unwise, as applied to Obama—is probably the most incendiary passage in Scalia’s entire dissent, and it hardly qualifies as a dreadful rant, even for usually sedate SCOTUS justices.

Although Scalia has never been what you might call sedate, he’s hardly the raving and decrepit old bigot depicted by his critics, who are doing a fair amount of ranting and raving themselves. Perhaps it’s pre-Obamacare-ruling jitters.