Stupak and the fight against abortion funding

The New Neo Posted on by

Bart Stupak says that leading the fight against including abortion funding in the HCR bill has been “a living hell” for him and his family. He’s gotten threatening phone calls in the office and at home, and its affected his family. But he’s hanging tough (so far at least; one never knows in the end with this crowd) and voting “no.”

I assume that the threats are coming from the supporters of HCR and federal abortion funding, although perhaps some are also from opponents who threaten him if he were to change his vote to “yes.” He doesn’t specify. But he does say one very curious thing:

The ideal outcome, Stupak said, might be for the House Democratic leadership to get the votes they need without him and for the bill to pass.

“You know, maybe for me that’s the best: I stay true to my principles and beliefs,” he said, and “vote no on this bill and then it passes anyways. Maybe for me is the best thing to do.”

How odd. So he stays true to his beliefs—and a bill that violates those deeply-held beliefs, as well as those of his supporters, passes and becomes the law of the land.

Stupak is a supporter of HCR in general, so he’s in conflict. But what sort of resolution would that be? Is his own conscience the paramount thing—as long as his hands are clean, he doesn’t care how dirty the bill passed by his fellow Democrats is? Is that what passes for principle these days?

Obama and Baier and “process” and Hawaiian earthquakes

The New Neo Posted on by

Where to begin?

I didn’t see the Baier interview on TV, and when I tried to watch the video it stopped after six minutes and would not start again. But I’m not so sure I could have stomached much more of Obama’s bobbing and weaving and not answering the questions, and repeating inane and repugnant and misleading talking points and complaining petulantly.

Baier gave a lesson in what reporters should have been doing right along when interviewing Obama: actually asking him tough questions and relevant follow-ups. If anyone in the MSM had done this sort of thing during the campaign, Obama might not have been elected and we would not be facing the mess we’re in right now.

Here’s a transcript if you (like me) prefer to read rather than watch. For now, I will just comment on two things. The first is that in the opening segment (the one I watched on video) Obama made it crystal clear that he doesn’t give a rat’s ass about the procedural rules embedded in the Constitution for the passage of legislation, or the ones that have grown up over time:

I don’t spend a lot of time worrying about what the procedural rules are in the House or the Senate.

Of course not—after all, it’s not like he was ever a Senator, or a Constitutional law prof/lecturer, or anything like that.

And Obama doesn’t think you should worry your pretty little head about process, either. Actually, he’s pretty sure that you don’t, despite the fact that Baier read him a couple of letters from ordinary Americans who do care. Why, Obama’s got letters too!

But one of the strangest exchanges was this one:

OBAMA: Something that was called a special deal was for Louisiana. It was said that there were billions ”” millions of dollars going to Louisiana, this was a special deal. Well, in fact, that provision, which I think should remain in, said that if a state has been affected by a natural catastrophe, that has created a special health care emergency in that state, they should get help. Louisiana, obviously, went through Katrina, and they’re still trying to deal with the enormous challenges that were faced because of that.

(CROSS TALK)

OBAMA: That also ”” I’m giving you an example of one that I consider important. It also affects Hawaii, which went through an earthquake. So that’s not just a Louisiana provision. That is a provision that affects every state that is going through a natural catastrophe.

What earthquake in Hawaii? Gateway Pundit notes that, “In 1868 there was a major earthquake in Hawaii that killed 77 people. In 1975 an earthquake in Hawaii killed 2 people.” Obviously, Obama can’t possibly be referring to either of those.

But indeed there was an earthquake in Hawaii in 2006, It caused property damage to a little over a thousand buildings (73 million dollars’ worth). However, it seems to have resulted in no deaths and only minor injuries. Certainly there appears to have been no “special health care emergency” there that would have qualified for any sort of special funds under the provisions of HCR.

Obama seemed clueless and meandering in the interview, repeating the same points over and over and unable to counter Baier in any effective way, resorting to what Holden Caulfield used to call “slinging the old bull” and bringing up strangely irrelevant stuff like the Hawaii earthquake.

The trouble is, I don’t think it will matter. As I said earlier today, I think healthcare will pass; Pelosi will see to it.

Those “self-executing rules”

The New Neo Posted on by

The Democratic meme of the moment is that the Slaughter solution is no biggie, it’s just a self-executing rule of a type that’s been employed many times before and which Republicans themselves use frequently (see also this and this).

Really! Isn’t it odd how we’ve never heard a thing about it before.

So what’s a self-executing rule, and when has the procedure been used in the past, and to what purpose? Take a look at this explanation and list of examples. Ah yes, very similar; a rule to ban smoking on flights longer than two hours corresponds very well to the health care reform bill.

Here’s more about how these rules have actually been employed previously:

Wolfensberger [a former Republican staff director of the House Rules Committee who now directs the Congress Project at the Woodrow Wilson Center for Scholars,] said self-executing rules often have been employed at an earlier stage, rather than for final passage of a bill. He said he knows of four instances when a measure that was deemed to have been passed went directly to the White House. The first, in 1933 during the Great Depression, involved Senate amendments to legislation pertaining to the United States’ creditworthiness. The tactic was employed twice in the 1990s, by Democrats on a bill involving the Family Medical Leave Act, and by Republicans on a measure involving a line-item veto. Most recently, it was used a few weeks ago, when the House voted on both an increase in the debt ceiling and a pay-as-you-go budget provision.

Stanford’s McConnell [director of Stanford Law School’s Constitutional Law Center and a former appellate judge appointed by President George W. Bush] said that such a procedure would be unconstitutional in this case because, in passing both the Senate legislation and the changes in the reconciliation package in a single stroke, “no one bill will then have been passed by both the House and the Senate” because the Senate still would have to approve the changes added by the House.

And from Ace:

…[I]n the past, the self-executing “demonpass” dodge was used with regard to legislation that was going to pass anyway; Congress concocted itself a trivial dodge so they could say they hadn’t voted to raise the debt ceiling. But if that dodge had not been available, they would have voted for it.

In such circumstances, the Court can show a bit of restraint and say, basically, “No harm, no foul,” and show the restraint they prefer to show in keeping out of Congress’ internal affairs.

The Democrats are comparing apples to oranges—or perhaps a better analogy would be to swallowing a raisin vs. swallowing an elephant whole. To use the self-executing rule procedure to get around the enormous problems with HCR, which would be one of the most major and transformative and unpopular bills ever passed by Congress, and to act as though there is some equivalence, with previous uses of the rule, is absurd. However, the Democratic leadership and their followers count on most people to (a) not be paying attention to these boring procedural matters; and/or (2) if they are paying attention, to not be interested in the details, and therefore to be soothed by this “oh, it happens all the time in this way, nothing to see here, moving right along” placating, condescending, contemptuous lie.

Here’s lawyer Andy McCarthy on the ploy:

The key here is that in each instance, at issue [in the situations in which the self-executing rule was used] was something that was non-controversial or almost ministerial ”” not, as with heathcare, an unpopular, bitterly opposed, ragingly controversial socialization of the private economy.

I think Democrats are mistaking a customary short-cut for a substantive precedent.

Just now I happened to turn on Fox News, and caught a Megyn Kelly interview with Judge Michael McConnell (who mentioned that he was one of the people who recruited Obama to teach at the U. of Chicago Law School). He said that in their arguments for the self-executing rule the Democrats are trying, “To claim precedent for one thing and then to use it for a drastically different thing.”

One thing we do know is that, even if we are somehow saved from this travesty because they can’t get the votes even with all the sordid gymnastics, the present-day Democratic Party has shown its hand and let us know its disrespect for the rule of law and the traditions of Congress. Those who have been paying attention are unlikely to forget the lesson. The question is: how many are paying attention?

And how many care any more about the process by which we have remained a nation of liberty—of the people, by the people, and for the people?

Is it a bug or a feature?

The New Neo Posted on by

Obama says he won’t campaign for Dems who fail to vote to pass HCR. That may be more of a bug than a feature, more likely to repel “yes” votes than attract them.

Obama has become ballot-box poison—a process that took George Bush six or seven years, but Obama less than one. However, I am still quite pessimistic about the passage of HCR. I believe it will happen. I believe the proper arms will be twisted to the proper degree of pain, a sufficient number of bribes will be offered to sweeten the deal, the requisite threats and enticements and rides on Air Force One will be given, and the bill will pass by the smallest and crookedest margin for any important (and hugely unpopular) piece of legislation in our nation’s history.

And boy, do I hope I’m wrong about the bill’s prospects of passing.

The Milgram experiment lives: on French “reality” TV

The New Neo Posted on by

[NOTE: If you don’t know what the Milgram experiment was, please see this.]

Well, I guess it had to happen. The Milgram experiments repeat themselves, the first time as tragedy and later as farce. And is it any surprise that, in this day and age (a) it’s happening on reality TV; and (b) the percentage of people willing to shock the “contestant” is about 80%.

Plus é§a change, plus c’est le méªme chose.

[ADDENDUM: I would love to see an article on the 20% who refused.]

The Slaughter solution, constitutionality, and precedent

The New Neo Posted on by

Many have questioned whether the Slaughter solution, if used, would stand the test of constitutionality. Although no one knows, here’s a post at Volokh about a possibly relevant case, Public Citizen v United States District Court for the District of Columbia, that occurred back in May of 2007.

This was the situation in Public Citizen [emphasis mine]:

Yesterday the U.S. Court of Appeals for the D.C. circuit turned away Public Citizen’s challenge to the validity of the Deficit Reduction Act of 2005 (DRA) in Public Citizen v. United States District Court for the District of Columbia. According to Public Citizen, the DRA was invalid because the House and Senate did not both approve the same version of the DRA. Rather, due to an alleged clerical error (that nonetheless altered substantive provisions of the bill), the two versions were different. This means the DRA never became a law, according to Public Citizen, because the bill signed by the President did not first pass both the House and Senate in accordance with Article I, section 7 of the Constitution.

The D.C. Circuit, in an opinion by Senior Circuit Judge Harry Edwards, upheld the district court’s holding that the claim was foreclosed by Marshall Field & Co. v. Clark, an 1892 case in which the Supreme court held that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.'” Once a bill is signed by the leaders of the House and Senate, it is an attested “enrolled bill” that “should be deemed complete and unimpeachable” for purposes of the Constitution’s bicameralism requirement. This “enrolled bill” rule precludes the sort of challenge Public Citizen sought to advance. Public Citizen sought to distinguish its case from Marshall Field in various ways, or suggest that the decision had been tacitly overruled, but the D.C. Circuit rejected these arguments…

The Court rejected the idea that the judiciary should challenge the validity of laws that the two political branches attest were passed in accordance with the relevant constitutional requirements. Such a “spectacle” would subordinate” the legislature to the judiciary and “disregard” its coequal position in the government. Moreover, it could lead to unnecessary uncertainty in the law.

In the case of Public Citizen, the discrepancy between the two bills involved a minor clerical error. The passage of HCR by the application of the Slaughter solution would involve a very different set of facts, but if it came to a constitutional test the Court might still consider that it shouldn’t declare Slaughter unconstitutional for similar reasons as in Public Citizen—separation of powers and the need for certainty in statute laws of the land, once a bill had been declared (or in the case of Slaughter, “deemed”) passed by both houses and then signed by the president.

But here’s a fascinating comment to the Volokh post—and remember, it was written in May of 2007 [emphasis mine]:

…I think it’s always an open question how much bad faith would really be tolerated.

Consider what happened here: the House and Senate passed two different bills, different because they contained two different dollar amounts in one spot. The Republican leadership knew that that one specific dollar figure hadn’t made any real difference in getting the bill passed, but that it had been a tough vote nonetheless and they really didn’t want to hold a new vote and face the possibility of defections. So instead, they just signed a false attestation that the House and Senate had passed the same bill, and the President, either not knowing or not caring, signed it into law…

But you could easily imagine a scenario with far worse bad faith than that. Let’s say Nancy Pelosi and Harry Reid sign an attestation falsely claiming that the House and Senate have passed a bill to nationalize health care, even though the bill was never even considered by Congress, and President Hillary Clinton signs it into law. Would the courts really stay out of the issue, even if it was this bad?

If they wanted to, I’m sure the courts could manufacture some distinction that would distinguish the previous cases where the bad faith wasn’t so blatant. On the other hand, maybe their thinking is that if the bad faith is this clear, there’s going to be a political remedy (like impeachment), and thus maybe they should just steer clear rather than issue a decision that might just be ignored.

And then there’s this comment on a recent thread at Volokh about the Slaughter solution. The commenter offers the following quote from the Appeals Court’s 2007 ruling in Public Citizen (otherwise known as the “enrolled law” case). Here is what the US Court of Appeals wrote back in those naively trusting days, before the team of Obama, Pelosi, and Reid got together and cooked up certain schemes [emphasis mine]:

It is said that…it becomes possible for the speaker of the house of representatives and the president of the senate to impose upon the people as a law a bill that was never passed by congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the constitution.

The US Court of Appeals judges didn’t seem to be very prescient there, did they?

[ADDENDUM: I’ve been informed by a commenter that apparently that last quote was from Marshall Field (Justice Harlan) rather than Public Citizen. Since Marshall Field was decided in 1892, I guess Harlan couldn’t be expected to have seen that far ahead.]

Here’s what tyranny looks like at the beginning

The New Neo Posted on by

I have believed for quite some time that the Democrats will stop at nothing to pass HCR.

They will do whatever it takes, even if they have to trash the entire Constitution to accomplish it.

The stakes are that high for them. And it’s not about health care reform, it’s about the expected entrenchment of such entitlements and the raw power to grow government.

If you doubt me, take a look at this, this, and this.

The Gitmo lawyers: maybe Lynne Stewart wasn’t such an anomaly after all

The New Neo Posted on by

Remember Lynne Stewart? She was the defense attorney convicted of helping her terrorist client Abdel Rahman send messages to his supporters. Stewart acted in violation of an agreement that “she would not “use…meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman”.

As Andy McCarthy points out, Stewart’s conduct began in 1999, but she wasn’t tried until 2004 and sentenced till 2006, after which she was free on bail until November of 2009, when she finally entered prison to begin serving her remarkably short 28-month sentence. Andy McCarthy, of course, was Abdel Rahman’s prosecutor, and has tirelessly written about legal issues involving terrorism for the last decade or so.

Now McCarthy takes up the latest revelation of travesties on the part of lawyers for terrorists, based on this longer piece by Burlingame and Joscelyn in the WSJ (a must-read). The facts are, quite simply, shocking—if we retained our power to be shocked any more.

Like Lynn Stewart, the attorneys for the Gitmo defendants agreed—as a condition of their being allowed access to their clients—not to give them any “information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel.” Apparently these oaths were regularly violated, and when the Bush Department of Justice tried to get these lawyers dismissed, it was inundated with filings in their defense and ultimately gave up the battle:

The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.

McCarthy summarizes the actions of some of the lawyers who defended the Gitmo detainees (parenthetical comment mine):

The Gitmo Bar…provided al Qaeda detainees with a propaganda brochure that instructed them on how falsely to claim that they had been tortured and abused…fomented a detainee hunger strike that disrupted security at the camp and set the stage for fabricated reports that the detainees were being tortured and force-fed…provided the detainees with virulently anti-American rhetoric that compared military physicians to Nazi Josef Mengele, labeled DOJ lawyers “desk torturers,” and informed the detainees about the Abu Ghraib abuses and the potential for framing President Bush as a war criminal…provided the enemy combatant terrorists with a hand-drawn map of the detention camp’s lay-out, including guard towers…incited the detainees against the military guards…posted photos of Guantanamo security badges on the Internet in a transparent effort to identify U.S. security personnel…facilitated enemy combatants in communicating messages and interviews to their confederates and the outside world [sound familiar?]…provided a detainee with a list identifying all the other detainees in custody…provided the detainees with news accounts about the war in Iraq and Afghanistan, including reports that U.S. forces were sustaining devastating casualities from IED attacks.

Our system of justice is an adversarial one which depends on even the most vile of defendants receiving counsel. Defense attorneys perform this task, which is essential for the functioning of justice. But these attorneys have obviously gone above and beyond the call of duty.

Most of America would be rightly outraged at this. But will most of America know about it? The WSJ is one of the few relatively mainstream newspapers in this country that still writes about such matters. Here’s a sample of how the left treats the story. As for the rest, it’s either crickets chirping, or cries of McCarthyism (of the olden-day variety).

It appears that the long Gramscian march has not only taken over some churches, the press, and our educational system, but much of the legal system as well. Or maybe lawyers were actually the early shock troops.

Reality TV feeds off itself

The New Neo Posted on by

As controversial sextuplet mother (her sextuplets are not controversial; the mother is) Kate Gosselin and most recent Bachelor Jake Pavelka graduate from their respective shows to appearances on the newest “Dancing With the Stars,” (are you still with me, guys and gals?) premiering next Monday, TLC announces the Gosselin’s replacement: “Quintuplet Surprise,” featuring the Jones’, parents of (you guessed it) quintuplets.

That was a mouthful, wasn’t it?

This is what passes at TNR for analysis of the controversies involved in the HCR cramdown

The New Neo Posted on by

Ah, the subtle nuanced thought processes of the liberal intelligentsia, as exemplified by Jonathan Cohn, senior editor at The New Republic and its resident social welfare policy and health care expert.

Cohn sees discussion of the legal issues raised by the Slaughter amendment and other arcane and possibly (probably?) unconstitutional maneuverings by House leader Pelosi as not worthy of serious consideration. Nope, it’s all just politics, and who cares anyway, as long as the Democrats win?

Or, as Cohn—Harvard alum and former President of its newspaper the Crimson, as well one of the best health care writers around, according to the Times and WaPo—would say: “whatever.”

Here’s the excerpt from his trenchant analysis [emphasis mine]:

There’s still talk of a procedure under which the House would pass the reconciliation package and, in the process, “deem” the Senate bill passed without a direct vote on it. Apparently the Senate bill could then go to the president for signature, even as the reconciliation bill went to the Senate for action there. I say “apparently” because I’ve heard enough conflicting explanations of how this might work that I’m reluctant to state this as fact.

This idea, by the way, continues to baffle me. The technicality of having deemed the Senate bill into law rather than voting on it seems unlikely to spare Democrats the attack ads they want to avoid. At the same time, it seems likely to muddle the message of demanding an “up-or-down vote,” which has helped clarified the issue for voters and help put enactment within reach.

Whatever. The important thing is that the bill passes.