Freedom Line Blog

That headline seems to be the upshot of a little-noticed July 23 ruling by federal judge Reggie Walton — confirming what many of us have been saying and writing for well over two years now. The official in question is longtime trouble-making Civil Rights Division chief Thomas Perez. Hans von Spakovsky explains.

At a hearing before the U.S. Commission on Civil Rights on May 14, 2010, Perez was asked by Commissioner Peter Kirsanow whether “any political leadership [was] involved in the decision not to pursue this particular case?” Perez’s answer, on page 79 of the transcript of that hearing is an uncategorical “No.” When the statements of Perez are compared to the documents that Judicial Watch forced DOJ to release in the FOIA lawsuit, Judge Walton was polite when he said they are contradictory and “cast doubt on the accuracy” of Perez’s account.

A less diplomatic judge might have said that Perez testified falsely in his hearing testimony before the Commission on Civil Rights. In other words, he may have committed perjury if he knew his statements were false when uttered.

The Commission on Civil Rights repeatedly asked Attorney General Holder to appoint a special counsel to investigate the handling of the NPBB case by the Department and the refusal of Perez to comply with lawful documents requests and subpoenas served on DOJ by the Commission. When will the Attorney General do so, and when will he ask for an investigation of this possible perjury by Perez?

This case has been a travesty all along — and all along, the Department of Justice has been giving false stories about what happened. There will be lots more to say about this in the days ahead.

Kenneth Blackwell and Ken Klukowski have a superb column out today on how states can help block ObamaCare as a whole by refusing to set up state insurance “exchanges.”

Key passage:

Third, if employers with 50+ employees do not provide federally-approved healthcare, ObamaCare imposes a $2,000 penalty per employee, per year. (Minimum penalty $100,000.) However, that penalty is triggered when those employees receive tax subsidies from a state-based exchange.

Since HHS-run exchanges have no subsidies, for states refuseing to create exchanges, no employer in that state will be subject to that penalty.

I’m up at FoxNews.com today.

As President Obama’s mandated insurance coverage of sterilization, contraception, and abortion-inducing drugs takes effect on August 1 for ordinary businesses, the Health and Human Services mandate’s ultimate survival suddenly appears blessedly jeopardized.

Federal district Judge John J. Kane of Colorado on Friday issued a temporary injunction blocking the mandate from being applied to Hercules Industries, a family-owned manufacturer of air-conditioning products….

Citing precedent, Kane wrote that the weakness of the mandate’s legal position looks “serious, substantial, difficult and doubtful” based on statutory grounds alone, without even considering the significant constitutional challenges raised by Hercules. As Kane summed it up, the government’s stance amounted to an assertion that “a for-profit, secular employer… cannot engage in an exercise of religion.” This is poppycock – and dangerous poppycock at that. It amounts to a claim that an individual employer, or a closely-held family corporation, does not enjoy the right to religious exercise unless those rights are channeled through a church in a formal worship setting….

The ramifications of this decision could be enormous. If even a secular entity enjoys a “likelihood of success” on the merits of the challenge to Obama’s sweeping edict, then the dozens of suits filed by explicitly faith-related institutions probably enjoy a particularly strong likelihood of victory in court….

This could be very, very important for small businesses nationwide.

Please forgive me if that headline is too strong. But I’ve always thought so, and now I know. Chait is actually suggesting that racism is driving the negative reaction to Barack Obama’s “you didn’t build that” remark. Give me a break. What a skunk this guy is. The last refuge of a scared, cheap-shot, leftist scoundrel is to yell “Racism” in a clouded, weirder way than ever attempted before. As in:

Mitt Romney’s plan of blatantly lying about President Obama’s “you didn’t build that” speech is clearly drawing blood. But what makes the attack work so well is not so much the lie itself but the broader subtext of it. …The key thing is that Obama is angry, and he’s talking not in his normal voice but in a “black dialect.” This strikes at the core of Obama’s entire political identity: a soft-spoken, reasonable African-American with a Kansas accent. From the moment he stepped onto the national stage, Obama’s deepest political fear was being seen as a “traditional” black politician, one who was demanding redistribution from white America on behalf of his fellow African-Americans….The entire key to the rise of the Republican Party from the mid-sixties through the nineties was that white Americans came to see the Democrats as taking money from the hard-working white middle class and giving it to a lazy black underclass. Reactivating that frame is still the most mortal threat to the Democrats and to Obama. …

What a steaming load of diseased dung this is. The time has come to call this “racism” wolf cry what it really is: the Left’s version of McCarthyism. As with the original, the game is to accuse adversaries of something awful, and awfully untrue, purely for political effect, to cause a political wound. (The difference is that at least McCarthy had some small basis for his vilely overstated accusations, as the Venona documents have since shown; this cry of racism, here as in so many of the Left’s uses of it in recent years, has not even a shred of truth to it.)

I associate myself with the remarks of John Nolte at Breitbart, who called Chait’s dung heap “equal parts hilarious, maddening, unAmerican, and just plain pathetic.”

The reason Barack Obama’s outlook is alien to the American tradition is not because he is black; it is because he was mentored by a Communist, raised by leftists, inculcated with foreign values in Indonesia, befriended (and willing befriending of) some of the vilest radicals and terrorists on American soil, studied and emulated the evil Saul Alinksy, and consciously chose (by his own testimony in his crafted, semi-fictionalized “autobiography”) the persona of a man disaffected from and antagonistic to many of the values historically adopted and admired by most Americans.

He says we cling to guns and religion as a way to deal with our own bitterness; he says we didn’t build our own businesses (or the roads and such paid for by taxes on the profits from our own labors); he says Americans have been arrogant and dismissive of Europe and that we are “still struggling” with the legacy of Jim Crow; he runs roughshod repeatedly over religious liberties; and again and again, he shows disdain for the actual workings of the free market that is the means of our prosperity.

I don’t care if it is his “white” half or his “black” half that is demonstrating these attitudes. When the pasty white Ted Kennedy showed some of the same tendencies, we conservatives opposed him just as fiercely. Race has nothing to do with it. But vicious McCarthyism of the Left, such as that exhibited by Chait, will target anybody who exposes hard truths about their own left side of the political debate.

But just as blackness is no reason to attack Barack Obama, so is it also no defense for his supporters to use as a crutch every time he sticks his feet in his mouth. Black feet taste no worse than white feet. But very few feet are tasty dishes — and when both of somebody’s feet are left feet, the likelihood is for stumbles of the sort that cause those feet to end up in one’s mouth.

Ashton, I don’t see McDonnell happening. He wouldn’t be an awful choice, but he is preternaturally cautious, and he offers some targets for Demo cheap shots — which, while cheap, my still be effective.

The infamous HHS mandate, forcing employers to provide insurance covering sterilization and abortifacient drugs, kicks in on Tuesday. Most of the attention has focused on church-based organizations fighting this mandate, but private businesses are affected too. Badly affected.

Here’s one.

Hercules owners William Newland, Paul Newland, James Newland, and Christine Ketterhagen, and its vice-president, Andrew Newland, are practicing and believing Catholics. They desire to run the company, an HVAC manufacturer, in a manner that reflects their sincerely held religious beliefs, including their belief that God requires respect for the sanctity of human life. Their lawsuit, Newland v. Sebelius, is in the U.S. District Court for the District of Colorado.

Here’s more on the case at this link.

My psychic antenna are picking up, more and more, the sense that Mitt Romney will choose Bobby Jindal as his running mate. I like that choice very much, although I still don’t understand why there is no evidence that Romney has even considered Jon Kyl of Arizona — who, according to my latest analysis of the race, would actually be a superb political choice as well as excellent substantively.

As of now, I am officially retracting my earlier prediction (not suggestion, but prediction) that Chris Christie would be the choice. The campaign just doesn’t seem to be moving in that direction.

If I were to lay odds on the likelihood of each potential candidate being chosen, it would be something like this:

Chances of a Jindal pick: 30%

Tim Pawlenty  20%

Paul Ryan  18%

Rob Portman 16%

Kelly Ayotte 10%

Jon Kyl 2%

Rick Santorum 1%

Marco Rubio 1 %

Chris Christie 1 %

John Thune 1/2%

Condoleezza Rice 1/2%

A bit late, I post this tremendous account by Christian Adams of the almost criminally incompetent (and ideologically nuts) Justice Department behavior in a key trial over Texas’ voter-ID law. Amazing stuff.

One tiny excerpt:

But the testimony got even more ridiculous.  San Antonio teenager Victoria Rodriguez travelled the whole way to Washington, D.C., for the clown show.  She testified that she did not have photo ID, even though she had the birth certificate to get a free one.  Her excuse?  She couldn’t find the time. Neither could her parents be bothered to drive her to get the ID.  One wonders if Victoria Rodriguez ever leaves the house, or when she does, if she has other priorities besides voting.  I’d suspect so.

One also wonders why DOJ lawyers decided to put her on the stand.

This travesty, this abomination, is typical of the Obama-Holder (in)Justice Department. For shame.

Discussed here. Here’s just a small taste:

Multitudinous other lawsuits against the law remain outstanding, and at least a few of them still could result in the court invalidating the entire law at a later date….First, the suit with the largest potential reach – the one perhaps most likely, if the plaintiffs win, to cause the whole law to be invalidated – is a case out of Arizona called Coons v. Geithner. A state think tank called the Goldwater Institute is providing the legal firepower here, while two congressmen are among the plaintiffs. While the lawsuit incorporates challenges to the law on multiple fronts, its most legally explosive issue involves whether something called the Independent Payment Advisory Board (IPAB) is constitutionally permissible….In short, the suit alleges that IPAB amounts to an illegal “delegation” of legislative powers to an unaccountable board.

I commend Troy for his excellent column on school reforms being pushed by Republican governors.

Alas, there always seems to be one exception that proves the rule, one skunk in a beautiful garden party, one, uh, floatie in the punch bowl… and one cliche too many in an otherwise insightful blog post (meaning mine). In this case, the exception is Alabama’s Robert Bentley, elected at least in part with the help of the Alabama Education Association, who (I reported recently) had watched the defeat of what should have been a simple effort to allow charter schools, all while he provided scant leadership on the issue. Well, now Bentley has done even worse: He has announced that he will not even include a charter-school bill in his legislative package next year, despite the fact that the House and Senate leadership (Republicans all) want it.

The editorial board of the Mobile Press-Register gently chided Bentley for his abandonment of the cause. But that promises to be just the start of the reaction. Some Tea Party groups are rumbling about the abandonment, and there will surely be more public opprobrium heaped on the governor. After all, if Jindal, Christie, Daniels (and in earlier iterations, Jeb Bush, Tommy Thompson, and Lamar Alexander, among others) can push meaningful school reforms, why can’t Bentley, in a state desperately in need of them?

Ashton: I thought I made clear the difference between my prediction and my wishes. Who do I WANT to see chosen, based on all factors? I have two co-favorites, for different reasons: Kyl and Jindal. I think either would be an absolute home run.

Ashton makes some interesting points. For what it’s worth, my bets are hedged all over the place. He puts me in the Jindal camp and Troy in the Kyl camp, but I actually have Jindal and Kyl as MY choices 1A and 1B. I would be thrilled with either of them, and I keep pushing them equally. (I also would be almost equally happy with Paul Ryan.)

But that’s who I myself would pick, not who I predict Romney will pick. Ashton himself urges the choice of Chris Christie. Well, while in my most recent column I don’t even mention him, because the tea leaves don’t seem to be steeping his way, I nevertheless have not withdrawn my prediction (from this column) that Romney will eventually choose Christie:

Last weekend, Andy McCarthy of National Review Online explainedcomprehensively why conservatives should see that New Jersey Gov.Chris Christie is “not one of us.” Among other factors, wrote McCarthy, “The brute fact is that, while Christie is not a hardcore statist, he is a mild progressive — which is to say, a ‘compassionate conservative’ in the Bush mold who wants to make government ‘work,’ not drastically reduce its size and scope.”

Nonetheless, Christie offers Romney a boatload of political advantages. First, he is perhaps the single most effective communicator anywhere in today’s Republican Party. He talks in ways everybody can understand. His directness is refreshing, and it can cut through every strand of Obama’s various webs of deceit. Second, Christie can excite conservatives and Tea Partiers with his in-your-face style, while providing substance that comes across to independents less as ideological than as indubitably practical. Third, he would shake up the electoral map – forcing Obama to spend far more time defending New Jersey, Pennsylvania, and probably New Hampshire, Maine, and even Connecticut than Obama otherwise would. Even if Christie doesn’t succeed in helping Romney win an otherwise unreachable northeastern state, his ability to expand the playing field by his persona alone (without adding extra GOP resources) would force Obama to dilute hisresources in a way that might hold Obama back in other swing states as well.

Meanwhile, about the only place Christie might marginally hurt the ticket is in the Deep South – but his pugnaciousness, again, can make up for some of his ideological apostasies (in the mind of many southern voters), and it’s also highly doubtful that Romney will come close to losing anywhere in the Deep South anyway.

So there: No matter how you slice it, I’ve got the bases covered! I’m in perfect agreement with both Troy and Ashton. I feel like Abe Lincoln in the apocryphal story about two haberdashers cornering him to demand that he adjudge whose hats were of finer quality. “Gentleman,” said the wily Lincoln, “these two hats mutually excel each other!”

Likewise, the picks of Kyl, Jindal, and Christie mutually excel each other (as would the choice of Kelly Ayotte).

Ha!

Troy and I  have been having an interesting discussion of how it is not at all implausible (or, to avoid the double negative, it is definitely plausible) for the presidential election to end in a 269-269 tie, thus throwing the election to the House of Representatives, which only narrowly would be likely to favor Romney. Now comes Eric McPike at Real Clear Politics to lay out a few other scenarios for a tie — in other words, further supporting the theory Troy and I have been touting.

Interestingly, though, two of McPike’s various scenarios would envision one of Nebraska’s Electoral votes to go to Obama again: “But then subtract from the Republican ticket the single electoral vote Obama won in Nebraska due to the anamolous way the Cornhusker State allocates its five electoral votes, and there would be a rare electoral tie that would send the election to the House of Representatives.”

To me, that seems highly unlikely. That vote was surely an anomaly, due to a bizarrely Democratic year. I wonder if anybody has any polling data suggesting that that congressional district would even be close. I doubt it.

Nonetheless, the fact remains that there are so many different ways to reach a tie that it behooves both sides to start dossiers on every House member to figure if any of them might be moved, under certain circumstances, to vote against their party, or to abstain. In the House, the vote is done not by individual member, but by state delegation.  A state like Minnesota, with four Republicans and four Democrats, would presumably vote “present” unless a member didn’t vote for his/her own party’s nominee. By my armchair projections, Romney would probably win the support of about 28 delegations (26 are needed to win) — but several of those delegations would be by one-vote margins, meaning that if my projection is slightly off, or if a Member could be convinced to switch parties or to abstain, the margin would be even smaller.

How could this happen? Well, imagine a 269-269 Electoral College tie, but with Obama building up such large margins in populous states like New York and California that he wins a clear popular-vote margin. Cue the Occupy movement to protest in favor of the House voting to ratify the popular vote rather than by party. Cue the media to overwhelmingly push that same notion. Now look at a few GOP House members who won by only narrow margins, but in districts carried by Obama, where the media message would be that they have a duty to vote with the majority of their constituents. Obviously, all of this could get very dicey indeed.

As it could well get dicey in the other direction if Romney wins the popular vote but the GOP loses more House seats than expected (via lots of people voting just to defeat Obama but then failing to vote in down-ballot races), and Democrats actually find they control a plurality of House delegations (with several tied).

All of which means that both campaigns ought to know darn well what makes each individual Member tick — what motivates each one, what pressures they succumb to. They should start the research now, just in case… because if indeed an Electoral College tie occurs, some Members might be moved to announce their positions quickly, and so both campaigns need to be able to contact all of the possible “swing” votes ASAP.

All of this could make the Bush-Gore fight appear, in retrospect, to have been child’s play.

And that is a very sobering thought.

At National Review Online, Deroy Murdock urges us not to forget all the Mexicans killed as a result of Operation Fast and Furious. The estimate: 300 of them.

If The Obama administration wants to politicize immigration policy in order to gain Hispanic votes, somebody might wonder why the Romney campaign wouldn’t fight back by demanding why the Obamites are apparently so unconcerned or unapologetic about these dead Mexicans — especially when the administration falls all over itself apologizing multiple times to Pakistan for airstrikes gone wrong in that country, where unlike in Mexico) at least we have a decent reason (targeting terrorists) to be operating. The administration compounds the sin by stonewalling multiple legitimate requests for further information on this program gone wrong. One would think Hispanic voters would take offense at all this.

So here’s the deal: Dead Mexicans, killed by American guns deliberately allowed to “walk” by the U.S. government, are no concern of the Obama Administration. But if those same Mexicans come into the United States illegally, the administration will refuse to impose any sanction against them, plus will in many cases provide them with government assistance — all while those who DID come legally are left to wonder why they even bothered doing it all by the book.

So, says the administration: Come here illegally, please. Because if you stay on your side of the border and get in the way of one of our guns, well, you’re just unimportant collateral damage to our effort-gone-wrong to make a case against Second Amendment gun rights. Come, and live well. Stay, and die. It’s your choice, sucka.

This is a surprisingly likely scenario: Give Obama the entire Northeast plus the Rust Belt except for Indiana. Give Romney the entire South, Plains, and inland West except for New Mexico. Give Obama all the Pacific states except for Alaska. Result: a 269-269 Electoral College tie.

The contest would then go to the House, where the House would vote not by member, but state by state. Twenty-six states would be required to win. By my early guestimates, Republicans would be likely to have majorities in between 26 and 28 states, with a few other states with evenly split delegations. This would mean an extremely narrow Romney win, but only after, probably, some major civil unrets led by Occupiers, etcetera.

Now, imagine that Romney does better than I expect with his Rust Belt strategy, and grabs both Ohio and his birth state of Michigan. But imagine that the liberal DC suburbs of Virginia turn out heavily for Obama while Appalachia and the Blue Ridge voters stay home rather than vote for Richie Rich Romney — and that Obama takes that state, plus Colorado, Nevada and Iowa (all of which I originally gave to Romney). Again, the result is 269-269. Again, well within the bounds of possibility.

Which leaves us where? Well, it means that New Hampshire could really be important. If Romney can also pull the Granite State, where he has a vacation home, back to the GOP, it would give him enough breathing room to avoid having the contest go to the House.

Lotsa interesting scenarios, I’d say.

Sometimes it behooves us to have sympathy for folks who are in many respects our adversaries. In that light, I wish a speedy and full recovery to U.S. Rep. Jesse Jackson, Jr., whose office announced today that he will miss more time than previously thought, due to both physical and emotional ailments. Rep. Jackson hardly is a stellar example of statesmanship, but he’s human and deserves our good wishes. I also know of at least one instance that speaks very well of his personal decency, or at least his occasional bouts of the same. (I wasn’t there, but I was told about it; as a private occurrence, alas, I will leave it undescribed right now. Suffice it to say that this was an occasion in which his instincts were both kind and appropriate.)

Get well soon.

http://www.ushistory.org/declaration/document/

A few hours early, in honor of our founders…..

When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them to another, and to assume among the powers of the Earth the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel the separation.

We hold these truths to be self-evident: that all men are created equal, that they are endowed by the Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness, that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed — that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to form new government, laying its foundation upon such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness….

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world….

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

… He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:…

For imposing Taxes on us without our Consent:…

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:…

…

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States,…

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

With that clarification, we are, as usual, in almost complete agreement. Yea!

I hate to disagree with my friend Tim, with whom I almost always agree, but I think he is dead wrong (and the dissenting opinion provides ample evidence, much more eloquently than I, as to why) why he says:

It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare and its individual mandate as a “tax.”  The text of Article I, Section 8 of the Constitution explicitly provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”  Thus, the federal government can tax and spend on behalf of almost anything it considers to advance the nation’s general welfare, even if its power to more crudely compel or prohibit actual behavior beyond that spending carrot is more limited.

Well, no. Not really.

The taxing power, as the dissent notes, NEVER EVER EVER has been construed to extend that far. The government can tax people; it can tax property; it can tax purchases or other activity; — but it CANNOT (or at least could not, until now) tax inactivity or the decision to remain inactive. Just as with the Commerce Clause argument, the same applies here: Under Roberts’ theory, now the government can impose a tax on you for NOT doing calisthenics in the morning, for NOT eating broccoli, for NOT buying a Chevy Volt, or for anything else it darn well pleases.

The taxing authority has never stretched so far.

And that leaves aside all the other facts at play here, such as that this isn’t a tax at all, but a penalty; that it isn’t even in the section of the bill devoted to revenue (thus indicating again that it is not a tax); and that it doesn’t operate like a tax because it is assessed in a way completely at odds with all definitions of a tax. (The dissent explains this well.)

Roberts bizzarrely conflates a tax “incentive” (an exemption from paying a tax otherwise generally levied) with a tax. He says giving a tax break for buying a home is meant to encourage home buying, so what’s the big deal about placing a tax on not purchasing health insurance in order to encourage the purchase of said insurance? Well, the key word is “not.” In the first instance, the tax already exists. It is a property tax. The property tax is reduced, though, if it is a primary homestead. But NOWHERE IS THERE A TAX ON NOT OWNING PROPERTY. Thus, it is an entirely different thing than imposing a tax on not purchasing insurance.

It’s an incredibly foolish comparison for Roberts to have made — but it is in keeping with the slipshod, hurried, almost desperate way he wrote the three pages on the taxing power, completely at odds with the careful exposition he made of the limits on the Commerce Clause.

This wasn’t a constitutional exposition at all; it was a politicized act of judicial legislating from the bench to create an entirely different law than the one passed by Congress and signed by the president.

I discuss this bizarre decision here.

I further note that I was almost right in my final prediction, below.

Especially: “ I think this is going to be one of those horribly fractured decisions where observers have trouble making heads or tails of everything. I think there may even be concurrent pluralities rather than a simple majority on at least a couple of the questions presented to the court. In the end, though, I do — yes, I do — expect the mandate in this particular form, applied in this particular way, to be adjudged at least partially unconstitutional.”

Indeed, the MANDATE was found unconstitutional, but the penalty it carried, treated as a tax, was not. And on the Medicaid issue, there were indeed shifting pluralities rather than a single majority. So I was right on the style of the opinion — although not on the substance of just how the court would find a way to muck it up beyond ordinary understanding.