Freedom Line Blog

I agree with Ashton that it is a bad idea — an awful idea — to have the DoJ’s Civil Rights Division investigate the IRS scandal. I also agree with Ashton that in the short run, the best thing of all is to keep letting Congress (and the press) investigate this outrage, and let the body politic be the judge. In fact, that’s what Andy McCarthy argues today at National Review Online, with superb reasoning:

The Framers would have been astounded at the notion that Congress’s responsibility to ensure the proper working of government could be delegated to an unaccountable prosecutor. The paramount question is whether the government is out of control, not whether some mid-level official (or even a higher official) can be convicted by a jury.

Indeed, I think there is some agreement between Mukasey and McCarthy: Mukasey’s main point was not about who would conduct the criminal prosecution, but that a “special counsel” would be a bad idea. I agree. Only if it is later decided to open a criminal investigation, says Mukasey, should it then be determined who best to conduct such an investigation. But as McCarthy writes, a criminal investigation makes it easier to keep things secret from the public. That’s the opposite of what good citizens should want right now.

As Ashton says (which makes it unanimous!), “Best for the House to continue exercising its oversight responsibilities until they find some smoking guns.” Or, I would add, until a situation that might develop where smoking guns seem likely to be found, but only a criminal investigation could show exactly where the smoke is coming from. (I hope that metaphor works.)

So, to review: Congress and the press, only, for the time being. A “special prosecutor,” probably never. On that, we all agree. The only place Mukasey goes afield is in who should conduct a criminal investigation if one finally is required. The Civil Rights Division? As Ashton says, perish the thought.

At the American Spectator, I recommend reading Andrew McCarthy’s explanation about why Romneycare makes Mitt Romney a weak candidate against Barack Obama. Here, let me add a few more thoughts on the subject. I think this is McCarthy’s best paragraph in a piece full of good paragraphs:

[S]ome things are wrong everywhere. One such thing is a massive government infiltration into the private economy, one that coerces the purchase of a commodity (health insurance) as a condition of living in the state. For one thing, such an exercise in steroid statism establishes a rationale in law for government intrusion into every aspect of private life: If health care is deemed a corporate asset, then “bad” behavioral choices must be regulated, lest someone get more than his share. Romney portrayed Romneycare as a model, at least for other states, if not for the nation. But no free-market, limited-government conservative thinks this officious onslaught is a model to be emulated anyplace.

Here at CFIF I made a similar argument back in June, although not as well as McCarthy has now made it:

It doesn’t matter one bit if Mitt Romney’s “individual mandate” was imposed by a state instead of by the feds; either way, a government forcing people to buy a product the person doesn’t want, just by virtue of living and breathing within the government’s jurisdiction, is a government without any real limits whatsoever.Tyranny is tyranny at any level.  By Romney’s logic, it would be better still if your local township, rather than the state, could send police to oversee you filling out your insurance application and writing the check. Next stop: SWAT teams to escort you to the hardware store to buy widgets. Federalism is, of course, an important principle. Using states as “laboratories of democracy” is a good and practical idea. But federalism should never be an excuse for despotism. What’s wrong is wrong. It’s not a matter of practicality but of morality writ large.

McCarthy goes on to note this:

There is no serious person who doubts that Romneycare was the building block for Obamacare: The experts who helped design the former were consulted in the creation of the latter. Yet Romney continues to insist that Romneycare is a smashing success, one he suggests he’d do again without hesitation.

It still baffles me that Romney’s opponents haven’t yet made this case successfully in the debates.

National Review Online’s Andrew McCarthy pens one of the best explanations I’ve seen refuting the Obama Administration’s argument that Arizona’s SB 1070 is preempted by federal law.  A bit surprisingly, McCarthy’s column is in response to (and a bit in contention with) his colleague Heather McDonald.

McDonald wrote a column earlier today fretting about the hypothetical “preemption” consequences of an Arizona law enforcement official deciding to prosecute an illegal alien under SB 1070 after federal officials declined to prosecute under federal law.  McDonald implied such a scenario would trigger a successful preemption claim (i.e. federal law trumping state law) because the actions of the state and federal officials would be in conflict.

Though their actions may be in conflict, argues McCarthy, that doesn’t mean the laws are in conflict.  The distinction is crucial, but too often glossed over by pundits.

In a nutshell, the legislative branch makes a law and the executive branch has the discretion whether and how to enforce it.  Since police officers and prosecutors are agents of the executive branch at both the state and federal level, they have discretion whether and how much to enforce a law passed by the legislature.  (That’s why they can plea bargain cases and drop charges.)

So, if the federal layer of government decides not to enforce its law, but the state layer of government decides it will enforce its identical law, there is no legal conflict; only a different policy choice by each layer.

Thus, claiming that SB 1070 is unconstitutional because it is preempted by federal law is a non-starter since there is no legal conflict between the two.  In fact, they are identical.  Knowing the meanings behind the terms shows that the litigation surrounding SB 1070 is based on nothing more than a policy conflict between the U.S. Department of Justice and the State of Arizona over how to apply the same law.