Archive for September, 2012
September 21st, 2012 at 11:35 am
This Week’s Liberty Update
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Center For Individual Freedom - Liberty Update

This week’s edition of the Liberty Update, CFIF’s weekly e-newsletter, is out. Below is a summary of its contents:

Hillyer:  AGs: States’ Sovereignty Advances Liberty
Ellis:  If ObamaCare Is a Tax, Did It Violate the Origination Clause
Senik:  Delusion and Denial in the Middle East
Lee:  CFIF Scores Legal Victory Against Campaign Finance Regulations, Vindicating First Amendment

Podcast:  Times of Uncertainty at Home and Abroad
Jester’s Courtroom:  Lawsuit is Not Child’s Play

Editorial Cartoons:  Latest Cartoons of Michael Ramirez
Quiz:  Question of the Week
Notable Quotes:  Quotes of the Week

If you are not already signed up to receive CFIF’s Liberty Update by e-mail, sign up here.

September 21st, 2012 at 10:51 am
Podcast: Times of Uncertainty at Home and Abroad
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Timothy Lee, Vice President of Legal and Public Affairs at CFIF, discusses the increased regulatory uncertainty for the Internet sector and U.S. economy caused by FCC and Obama Administration policies, and American foreign policy in an age of uncertainty in the Middle East.

Listen to the interview here.

September 20th, 2012 at 4:59 pm
Celebrating the Constitution

The University of Mobile held a “Constitution Day” event this week to celebrate the 225th anniversary of the great document’s signing, with me emceeing an address by and discussion with the superb federal appellate court judge William H. Pryor, in front of university students plus 120 pupils from nearby high schools. It inspired me to write this column. A sample passage:

The United States and its Constitution serve as one big laboratory of republican government. When the Constitution was written, most of the world’s people thought true republics were by their very nature unstable, destined to be short-lived and to lead to either anarchy or tyranny. The men of Philadelphia, and then the American people who put into practice the system the founders designed, proved otherwise. Indeed, we continue to prove that representative democracy works. It can assure freedom, ensure a high degree of justice, and promote societal stability, simultaneously.

It remains for us to make sure that we ourselves in the United States do not let down our guard. Just because our Constitution has worked for so long does not mean, in the words of the title of a famous book on the Constitution, that our government is “a machine that would go of itself.”  The Constitution only provides a framework by which American citizens can protect our liberties; The Constitution does not do the work all by itself.

September 20th, 2012 at 1:45 pm
ObamaCare: Taxing the Constitution

My column this week explains the logic behind an important new constitutional challenge to ObamaCare by the Pacific Legal Foundation, a non-profit property rights law firm.

In its lawsuit, Sissel v. Department of Health and Human Services, PLF argues that the Supreme Court did ObamaCare no favors when it saved the law from a Commerce Clause challenge by reinterpreting it as a constitutional exercise of Congress’ taxing power.

Instead, PLF argues, the Court merely exposed ObamaCare’s newly found taxing authority as an express violation of the Constitution’s Origination Clause, which requires all new tax bills to originate in the House of Representatives, not in the Senate as ObamaCare did.

Though simple and faithful to the Constitution’s text, PLF’s argument is nonetheless novel because some of the Supreme Court’s precedents indicate the Court will not seriously enforce the Origination Clause’s procedure.

But as liberal legal scholar Jack Balkin says in a blog for The Atlantic, Chief Justice John Roberts and his conservative colleagues may be open to rethinking those precedents:

In a previous essay for The Atlantic, I noted that even if a legal argument is currently “off the wall,” it may nevertheless become plausible if enough prominent people get behind it and vouch for it. Support by major political parties is probably the most important factor in quickly moving arguments from “off the wall” to “on the wall.” The challengers’ arguments in NFIB v. Sebelius got as far as they did because the unconstitutionality of Obamacare became virtually the official position of the Republican Party, and Republican politicians and affiliated media pushed the challengers’ claims over and over again. Repeated arguments by conservative politicians, media, and intelligentsia, in turn, probably affected the views of Republican-appointed judges and justices about how seriously to take the arguments.

Members of the media will no doubt ask legal scholars (such as yours truly) whether the PLF’s new constitutional challenge to Obamacare is likely to succeed on the merits. I’ve just given you my answer: not under existing law.

But if reporters have been paying attention to the events of the last two years, they should know that, at least where health care reform is concerned, the considered views of legal scholars are not the most important ones. The real question to ask is whether Republican politicians, right-wing talk radio, and Fox News will get behind the new challenge with the same degree of enthusiasm they had for the first legal assault on Obamacare. If they do, then the mainstream media will no doubt cover the controversy as it did before. If a conservative district court judge takes the arguments seriously, the game is on once more. And then, perhaps, Chief Justice Roberts, given a second chance, will change his mind — again.

September 20th, 2012 at 12:46 pm
The Party of the Teachers Unions
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Now that the Chicago teachers’ strike has come to an end (a mostly unsatisfactory one, as chronicled by my colleague at the Manhattan Institute’s Public Sector Inc., Paul Kersey), the issue will likely fall out of national consciousness by week’s end. But there is one fact from this struggle that will remain with me for the foreseeable future. It was buried deep in the recesses of the Wall Street Journal‘s interview from last weekend with Chicago Mayor Rahm Emanuel, and it’s an extremely telling statistic about the party that considers itself the vanguard of civil rights:

We’re seven weeks from a presidential election in which Barack Obama needs all the cash and foot soldiers that organized labor can provide. His Super PAC’s chief fundraiser is none other than Rahm Emanuel. Meanwhile, the Democratic Party’s chief funders remain teachers unions, groups that also accounted for an estimated 20% of delegates at the recent Democratic National Convention. So you can imagine why Chicago’s unionized teachers struck now, gambling that Mr. Emanuel’s killer instinct may be stayed at least for the season.

One out of every five representatives of the Democratic Party on the floor (or at least at the hosted bar) in Charlotte represented institutions whose lust for self-preservation has the practical effect of killing minority achievement and ambition  in school districts throughout America. Their parents, who are overwhelmingly expected to vote for Barack Obama, ought to pause on that fact. The sacrifice of generations of schoolchildren is too high a price to pay for identity politics.

September 19th, 2012 at 6:26 pm
Yeah, What Smick Said

Great advice for Romney, to save his floundering campaign.

September 19th, 2012 at 4:36 pm
ACLU Forces Ban on Father-Daughter Dances

You read that right.

The Daily Caller’s Caroline May reports that the Rhode Island chapter of the American Civil Liberties Union demanded and won a ban on any public school event that limits participation to mothers and sons or fathers and daughters, such as traditional dances.

The reason: the events perpetuate “blatant gender stereotypes.”

As usual, the school sponsoring the offending dance was caught in a legal vice grip:

Although the federal Title IX anti-discrimination law does provide exemptions for such events, state law does not, but rather explicitly bans “sex discrimination in ‘…any and all school functions and activities,’” Superintendent of the Cranston Public School System Judith A Lundsten explained in an August letter sent to “Partner Organizations” and posted in full at WPRO News in R.I.

Already, one Republican candidate for Rhode Island state senate, Sean Gately, has made this a campaign issue, promising to introduce an amendment to the state law so that it tracks Title IX to allow exceptions for events like father-daughter dances.

If Gately can figure out a way to make the ACLU reimburse the school district for the hours spent in responding to this wasteful drain on public resources, he should run for governor.

Of course, the main problem with the ACLU in this and other instances is more than the waste of public resources.  It’s making a living by using the law to harass the very society the law was meant to serve.

No one who passed Rhode Island’s version of Title IX intended it to outlaw father-daughter dances.  Had the ACLU’s position been a publicly acknowledged purpose of the legislation when it was proposed, the law’s authors would have been laughed out of the chamber.  Whenever this issue gets a hearing in court – and Gately willing, it will – the reviewing court should do exactly the same to the ACLU’s argument.

Enough of the madness.  If people really want to stop making every argument political and thus polarizing, we must start by making less of our disputes a cause of legal action.

September 19th, 2012 at 12:18 pm
Obamacare in One (Very Long) Sentence.
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Dr. Barbara Bellar is running for State Senate in Illinois. That is a real shame for the Romney camp, which certainly could have used her services in the speechwriting department:

September 19th, 2012 at 12:09 pm
Advice to Romney on How to Redirect ’47 Percent’ Remarks

Following Quin’s lead, the Wall Street Journal offers some ideas on how to reframe Mitt Romney’s 47-percent-of-Americans-see-themselves-as-victims-and-will-vote-for-Obama-no-matter-what:

“I want Americans to be less dependent on government not because it costs too much. We will always help Americans who need our help. I want Americans to be independent so they can realize the pride of accomplishment and the dignity of work and contribute their God-given talents to build a better country.

“I think the success of a Presidency should be measured by how many fewer people need food stamps, how many fewer need disability, not how many more people are added to the rolls. I don’t want to take food stamps away from Americans in need. I want fewer Americans to need food stamps.

Sometimes I wonder if President Obama shares that view. He and his economists keep saying that food stamps and unemployment benefits are a form of ‘stimulus.’ Well, we’ve sure had a lot of that kind of stimulus, and all we have to show for it are more people on food stamps and more people on welfare and more people looking for work. I think a real stimulus is a job, and I intend to help Americans create more of them.”

Read the whole editorial here.

September 19th, 2012 at 10:01 am
Ramirez Cartoon: No Time to Talk…
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Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

September 19th, 2012 at 12:20 am
Mitt Romney Needs Help

The release of the four-month-old video of Mitt Romney saying some monumentally stupid and insensitive things (note the plural) drives home this point: This candidate needs help. He doesn’t “get it,” his campaign folks don’t get it, and his own strongest supporters probably don’t get it either. He needs outsiders to come in and slap him upside the head (figuratively speaking). He did bring in an outsider in the superb Pete Wehner, but then jettisoned Wehner’s big speech draft without so much as a nod toward the idea that ANYbody else has actual ideas worth actually talking about.

I could name about a dozen people who could help set Romney on the right track. For what it’s worth, I (egotistically) volunteer myself. I have some good experience on this front, and what Romney needs is somebody who isn’t in awe of him and certainly who won’t toady to him.

Of course, that’ll never happen. But what should happen is that they should call in SOMEbody to shake things up. Otherwise, the Romney campaign will continue to represent the unbearable lightness of being — and it will lose.

September 18th, 2012 at 12:52 pm
Breaking: CFIF Wins Historic First Amendment Court Victory
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This is why we do what we do, and why CFIF’s mission is important.

Today, in conjunction with the Hispanic Leadership Fund, CFIF secured a critical victory on behalf of the First Amendment rights to free speech and free association.  In a unanimous decision that arrived just four days following oral argument on the issue, a notably quick turnaround time when rulings typically arrive months later, the United States Court of Appeals for the District of Columbia Circuit reversed, vacated and remanded a recent lower court decision infringing upon the right of the people to engage in protected speech and associate in privacy.  The case was initiated by Representative Chris Van Hollen (D – Maryland), who apparently never internalized the First Amendment’s explicit provision that, “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

Vindicating the Supreme Court’s Citizens United and Wisconsin Right to Life decisions, the Court of Appeals noted the muddled nature of campaign finance regulations generally:

After reviewing the record with care, we conclude that the District Court erred in holding that Congress spoke plainly when it enacted 2 U.S.C. § 434(f), thus foreclosing any regulatory construction of the statute by the FEC.  The statute is anything but clear, especially when viewed in the light of the Supreme Court’s decisions in Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Wis. Right to Life, Inc. (“WRTL II”), 551 U.S. 449 (2007).”

This constitutes an enormous and welcome win for the freedoms of speech and association, one that all who value the First Amendment can celebrate.

September 18th, 2012 at 10:23 am
Islamism’s Threat to Free Speech
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From CNS News:

Six months after declaring that all churches in the Arabian peninsula should be destroyed, Saudi Arabia’s top cleric called at the weekend for a global ban on insults targeting all religious “prophets and messengers,” a category that, from a Muslim perspective, includes Jesus Christ.

Saturday’s demand by Saudi grand mufti Sheikh Abdul Aziz Al-Asheikh came on the same day that another of Sunni Islam’s most prominent figures, Egypt’s Al-Azhar University grand imam Ahmed el-Tayyeb, made a similar appeal.

Lest we think this is a phenomenon isolated to the Middle East, let us remember that there is no idiotic attempt to suppress liberty abroad that won’t find a sympathetic ear in our own State Department. Under the Obama Administration, Foggy Bottom has gone out of its way to accommodate the Islamic world’s fervor for anti-blasphemy laws by acceding to sympathetic UN resolutions. This may seem like nothing more than superficial bridge-building, but we know the course these impulses can take in the West, as embodied by the growing trend of aggrieved Muslims attempting to use liberal sensitivity to “hate speech” as a way to exact punishment on their critics from the judicial system.

The islamists’ tactics give the lie to their ideology. On one hand, they want us to believe that they represent a powerful, ascendant culture. On the other, their attempts to forcibly silence their critics betrays a deep and pervasive insecurity.

Great societies disprove their detractors. Weak ones send them to the stocks.

September 17th, 2012 at 4:28 pm
THIS WEEK’s RADIO SHOW LINEUP: CFIF’s Renee Giachino Hosts “Your Turn” on WEBY Radio 1330 AM
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 (CDT)/5:00 pm (EDT):  Jason Richwine, Ph.D., Senior Policy Analyst at Heritage Foundation – Chicago Teachers Strike;

4:30 (CDT)/5:30 pm (EDT):  Michelle Minton, Fellow in Consumer Policy Studies at the Competitive Enterprise Institute –  NYC’s Sugary Drink Ban;

5:00 (CDT)/6:00 pm (EDT): Greg Brown, Santa Rosa County Property Appraiser –  Trim Notices and Proposed Constitutional Amendments in Florida; and

5:30 (CDT)/6:30 pm (EDT):  Timothy Lee, Vice President of Legal and Public Affairs at CFIF – Libya and Domestic Political Developments.

Listen live on the Internet here.  Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

September 17th, 2012 at 3:33 pm
FCC’s Genachowski Glorifies “Psychology of Abundance,” Adds Uncertainty to Internet Sector and Economy
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Is this what our Internet sector and economy need?  More uncertainty from the Federal Communications Commission (FCC) and Obama Administration?  The tech sector remains a positive outlier in terms of job creation, innovation, new networks and private investment, but regulatory misdirection threatens all of that.

The latest affront involves usage-based pricing for Internet service.  In order to facilitate Internet growth and accommodate ever-increasing consumer demand, service providers must be granted flexibility to at least explore alternative pricing models.  The outdated, flat-rate, all-you-can-eat model increasingly threatens service quality, as a small number of Internet users sap capacity through data-heavy applications like videogames and online video.  To illustrate, viewing a single streamed high-definition film consumes approximately four gigabytes of data.  Utilities aren’t forced to charge a flat rate regardless of electricity use, so why should Internet service providers be straightjacketed in that way?  It’s not fair, and it’s not effective.

Enter FCC Chairman Julius Genachowski, who just four months ago explicitly praised pricing flexibility and experimentation in the name of fairness and efficiency:

Business model innovation is very important particularly in new areas like broadband.  There was a point of view that said a couple of years ago that really there was only one permissible pricing model for broadband, and I didn’t agree with that and the Commission didn’t agree with that.  And we said that business model experimentation and usage-based pricing could be a healthy and beneficial part of the ecosystem that could help drive efficiency in networks, increase consumer choice and competition and increase fairness, because it can we said result in lower prices for people who consume less broadband.  So experimentation in this area with those goals in mind is something that’s completely appropriate.”

Other voices on the political left actually concurred, including Tim Wu, the man who coined the deceptive term “Net Neutrality.”

Speaking to a different audience last week, however, Genachowski appeared to reverse himself.  “Anything that depresses broadband usage,” Genachowski claimed, “is something that we need to be really concerned about.”  He added, “We should all be concerned with anything that is incompatible with the psychology of abundance.”

A “psychology of abundance?”  Easy to say when you’re not the once providing that so-called “abundance.”  Perhaps Genachowski is unfamiliar with the timeless economic adage, “There’s no such thing as a free lunch.”  Or perhaps he simply says whatever he thinks his present audience wants to hear.

Regardless, Genachowski’s latest comments only add regulatory uncertainty to an atmosphere that already faces too much of it.

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September 17th, 2012 at 12:43 pm
The Right Kind of Immigration
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In the half-dozen or so years since immigration reform has once again become a major issue, we’ve too often fallen into a false dichotomy between being restrictionist to the point of halting legal immigration on the one hand or throwing open the floodgates to all comers — legal or otherwise — on the other.

Lost in that oversimplification, however, are prudential considerations about what kind of immigrants we should be welcoming. If we’re looking to encourage traditional American virtues, Asian immigrants provide a hopeful example. From Joel Kotkin, writing at the New Geography:

Asia has become the nation’s largest source of newcomers, accounting for some 36% of all immigrants in 2010. Asian immigrants and their U.S.-born descendants tend to be better educated: half of all Asians over 25 have a college degree, almost twice the national average. They earn higher incomes, and, according to a recent study by the Pew Research Center, are more likely to abide by “traditional” values, with a stronger commitment to family, parenting and marriage than other Americans, and a greater emphasis on education.

“Most Asian immigrants bring with them a healthy respect and aspiration for the American way of life, so I don’t think any immigration alarmists need to be anxious,” notes Thomas Tseng, founding principal at New American Dimensions, a Los Angeles-based marketing firm. “With a large influx of them, you will get a lot of their kids in the school system who are told that getting an education is the surest way for them to succeed in life, a great deal of entrepreneurial energy and new businesses in a region, and most certainly the local restaurant scene will improve.”

Culinary considerations aside, Kotkin and Tseng make an important point. Indeed, why would we consider for a moment admitting immigrants who don’t have a “a healthy respect and aspiration for the American way of life.”?

My point is not to cheerlead for racial preferences that advantage Asian immigrants. In fact, the very idea is reprehensible. The beauty of American citizenship is that it is predicated on principles which are held to be equally accessible to all.

But as our liberal friends so often forget, access is distinct from entitlement. American citizenship should be earned and a dedication to the country’s animating principles — hard work, education, civic and familial virtue — is as good a place as any to start.

We need not say that American needs more Asian immigrants. We may simply say that America needs more immigrants — of any background — who share their values.

September 14th, 2012 at 3:01 pm
On How Foreign Policy Matters….

Ashton, citing Troy earlier, writes that foreign policy definitely matters in an election. I agree with both of them. That is one reason I thought Jon Kyl should be on the short list for Veep, and why I insisted, against all common wisdom, that Rick Santorum should also be considered. Romney definitely could use somebody with acknowledged “chops” on foreign and defense matters right now. (I hasten to add that I remain THRILLED that Ryan is the running mate; I think he is absolutely terrific, but just for other reasons.)

But here is where I am going to suggest that Romney throw a real long ball. I have been thinking of this all year, no matter who the nominee was; indeed, I have thought of it in past presidential cycles too, but never decided it would be a useful game changer… until now.

I think Romney should choose, and publicly name, who his Secretary of State will be. I don’t think this has ever been done before, pre-election, so it would attract a ton of attention — and, since obviously Romney would choose whomever he chooses with an eye both on competence and on the political advantages the person would offer (in terms not of electoral votes or anything crass like that, but in terms of demonstrating good executive judgment on Romney’s part for making such a wise choice), the attention would almost all be of the positive sort.

Romney could then, in effect, outsource almost all statements on foreign affairs to the Sec. State-designee, who surely could run rings around the Obamites every time he/she goes on the air as a Romney surrogate.

At least a half dozen names suggest themselves as people who would be immediately accepted across the spectrum as a designee of substance and gravitas. (The only disadvantage of this is that Romney would politically be precluded from naming somebody who is a lightning rod for controversy, such as John Bolton, whereas a Bolton choice in the usual way, after the election, would still be possible.)

The one name, by the way, I would put at the top of the list is the same one I started this post with; Jon Kyl. Few people in Washington, and almost nobody on the right, are afforded such universal respect as Kyl is. And he could really pound home the issue of missile defense (probably bolstering the Polish-American ethnic vote in the Rust Belt while he was at it), on which he is extremely well versed, and explain why our abandonment of Poland and other Eastern European nations on this issue was such a horrible mistake. And Kyl sort of bridges the divide on the right between what some wrongly call the “Neo-cons” and those who are more isolationist: Kyl is not really identifiable in any one camp, other than being clearly “Reaganite.”

Regardless of who the choice would be, it would look good for Romney: bold, innovative, and presidentially decisive and confident, willing to let the public judge his choice before the election and giving a sense of his leadership style.

It’s worth serious consideration.

September 14th, 2012 at 1:19 pm
Foreign Policy Does Matter in This Presidential Election

A month ago Troy’s column asked “Will Foreign Policy Still Matter in the Presidential Election?”  At the time, Mitt Romney had just picked Paul Ryan as his vice presidential running mate, and all eyes were on domestic issues like the economy and entitlement reform.

But as ever, Troy saw the big picture by reminding us that, “If recent years have taught us anything, it’s that the issues on which a presidential election are fought can be poor predictors of the ones that dominate the subsequent presidency.”

The 9/11 attacks remain the paradigmatic example.

Now, with Islamist attacks on American diplomatic outposts spreading beyond Libya and Egypt to Yemen, Sudan, and Tunisia, American foreign policy – and each presidential candidate’s view of it – is getting a workout.

It’s about time.

September 14th, 2012 at 12:26 pm
‘Party of Women’ May Have No Female Governors in 2013

Bloomberg shows that for all the Democrats’ talk about a Republican war on women, it’s the self-proclaimed ‘party of women’ that must explain how unless its gubernatorial candidate in New Hampshire wins in November, Democrats will have no female governor anywhere in the United States.

Meanwhile, Republicans have New Mexico’s Susana Martinez, Arizona’s Jan Brewer, Oklahoma’s Mary Fallin, and South Carolina’s Nikki Haley.

Here’s another example of conservative reality beating liberal rhetoric.

September 14th, 2012 at 12:22 pm
Video: The War on Federalism
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In this week’s Freedom Minute, CFIF’s Renee Giachino discusses the erosion of states’ rights, highlighting recent instances of Executive Branch attempts to expand federal power at the expense of state sovereignty.