Freedom Line Blog

Despite premature rejoicing among immigration restrictionists not once but twice — first after oral argument, where Obama Solicitor General Donald Verrilli seemed to really take it on the chin, and then when the first reports of this morning’s decision were Tweeted out — the reality is that the Obama administration won much more than it lost today in the Supreme Court ruling on the Arizona immigration law. The part that restrictionists were cheering was that which allows police who have arrested somebody for other reasons to also check their citizenship/residency status. That is, of course, the most prominent part of the law; hence the rejoicing on the hard right.

A closer look, however, shows that the provision survived only because A) it applies only with strict limitations on its reach, and B) because state courts have not had a chance to officially construe its meaning. In other words, depending on how state courts interpret the law, even that provision may in the future by thrown out by the Supremes.

Meanwhile, three other important provisions, including one making it unlawful for illegal aliens to take jobs in Arizona, were thrown out. This is a big deal. What the high court — with not only Kennedy but also Chief Justice Roberts joining the liberals — is saying is that federal law should be construed, even without express provision, to pre-empt (or preclude) state law in those same areas. This is a big loss for state’s autonomous powers. To quote from the court’s syllabus (with my emphasis added), “Because Congress has occupied the field, even complementary state regulation is impermissible”. This is, frankly, a shock to me. It means that on any subject even remotely touching on foreign policy on which Congress legislates, the states are not permitted even to pass their own laws in pursuit of the same objectives.

Restrictionists also might gag at this line from the syllabus: “As a general rule, it is not a crime for a removable alien to remain in the United States.”

I count myself as a “moderate restrictionist.” On the merits, however, I thought Arizona was entirely right, and the administration entirely wrong. I therefore am not happy with this decision. I think it amounts to a huge infringement upon state policing authority. It certainly supports much of the Obama argument — an argument which, to me and many others, still seems ludicrous.

Oh, well.

In an interview with CFIF, Clint Bolick, Hoover Institution fellow and leading legal expert, discusses how the judiciary is up for grabs this presidential election and his latest book, “Two-Fer: Electing a President and a Supreme Court.”

Listen to the interview here.

Along with reformist former state official Bradley Byrne, I explained yesterday at the Mobile Press-Register how Medicaid is taking over the entire Alabama General Fund budget, and how ObamaCare makes it worse. This might have some bearing, tangentially, to the Supreme Court case on ObamaCare (the part argued last, about states being commandeered into ObamaCare Medicaid expansions).

Federal and state governments share Medicaid costs, but Obamacare by design will add millions nationwide to state Medicaid rolls while picking up the added costs only in the short term….

Before the $81 million error was discovered and before Gov. Bentley was forced to prorate the state’s budget (making across-the-board cuts due to revenue shortfalls), and even without full implementation of Obamacare, the state General Fund’s budget for Medicaid had doubled in just two years. To put this into perspective: During this two-year period, our court system was cut by a third, our criminal prosecutors’ offices by 14 percent, our Forestry Commission by 17 percent and our economic development by 5 percent. Medicaid went from consuming 20 percent of our General Fund budget two years ago to 36.5 percent this year. It is on track to consume the entire General Fund by decade’s end.

This is a big deal. And Alabama is hardly unique. It adds practical weight to the states’ arguments that they are being coerced into something they can’t afford.

President Barack Obama’s controversial warning to the Supreme Court that a vote to overturn ObamaCare would be “unprecedented” is getting push-back from the federal judiciary.

During oral arguments on a different ObamaCare provision than those argued before the Supreme Court last week, Fifth Circuit Judge Jerry Smith asked a Department of Justice lawyer for clarification.  “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”

To drive home the point, Judge Smith ordered DOJ to provide a written explanation of its views “no less than three pages, single spaced.”

The only problem with the homework assignment is that it wasn’t directed to the right person.  President Obama, that one-time constitutional law professor at the University of Chicago, should be the one sitting at the keyboard relearning first year law.

At least then he’d be aware that what’s truly unprecedented is his belief that federal courts are rubber stamps for his liberal agenda.

Remember in 2009 when conservatives in Congress presented an alternative to ObamaCare that would have guaranteed bipartisan support for some of the outcomes the Obama White House and its liberal allies wanted?  Had the liberals concentrated on targeted reforms instead of a gargantuan“comprehensive solution” not only would the ultimate bill have been much shorter, it would have been much easier to read and comprehend.

That’s a point worth considering since judging by the comments from the Supreme Court this week, passing health reform piecemeal would have been a far better strategy for those wanting to salvage the legislation.

Due to ObamaCare’s massive size, Byron York notes that none of the Justices actually admitted reading the entire law.  “I haven’t read every word of [the law], I promise,” said Justice Stephen Breyer on Wednesday.  Justice Antonin Scalia’s comments to an attorney defending the law were more pointed: “You really want us to go through these 2,700 pages?”  “You really expect the court to do that?”

The problem for ObamaCare’s defenders is that the Justices’ refusal to read the entire law means that they are much less likely to rule the individual mandate unconstitutional and keep the rest.  Instead, they’ll just invalidate the whole thing and have Congress start over.

If that happens, the liberal mania for “comprehensive” solutions for everything from illegal immigration to financial transactions and health care will be dealt a much-deserved blow.  You can’t interpret what you can’t define.

If the Court strikes down ObamaCare in its entirety liberals will have only themselves to blame.  Had they listened to conservatives, some of the popular aspects of ObamaCare – guarantees of coverage and subsidies for premiums – would likely be in place with bipartisan support.  Now, they may have nothing to show for what could ultimately end up being a massive waste of time and money.

With the Supreme Court getting ready to hear arguments about the (un)constitutionality of ObamaCare, House Republicans yesterday voted to repeal the Independent Payment Advisory Board (IPAB), one of ObamaCare’s provisions that may be left unaffected by the Court’s decision.

As the Washington Times reports, this is “the 26^th time the House has voted to partially or completely repeal the sweeping overhaul” of the health care industry.

Like the other 25 times, this House vote won’t be seconded by the Democratic controlled Senate.  But in an election year that’s hardly the point.  What matters right now is that House Republicans continue to highlight how elements like IPAB destroy freedom and choice in health care by letting 15 unelected bureaucrats instead of the free market decide the price of services.

On to number 27!

In an interview with CFIF, Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, discusses why Justice Elena Kagan should recuse herself from any consideration of ObamaCare’s constitutionality before the Supreme Court.  Ms. Severino authored the white paper titled, “Elena Kagan: The Justice Who Knew Too Much.”

Listen to the interview here.

As we anticipated in last week’s Liberty Update, the U.S. Supreme Court announced today that it will hear legal challenges to ObamaCare this term.  As we also noted in that commentary, the issue broadly boils down to whether an explicit provision of the Constitution will be rendered meaningless and effectively read out of the document itself.

That is not hyperbole.  Our Founding Fathers didn’t randomly insert provisions into the Constitution for no reason whatsoever.  Rather, they crafted that document to design a federal government of limited, enumerated powers and to safeguard individual freedom to the greatest extent possible.  Accordingly, they intentionally included the Commerce Clause of Article I, Section 8 of the Constitution to empower Congress “To regulate Commerce with Foreign Nations, and among the several states, and with the Indian tribes.”  ObamaCare, however, does not merely “regulate commerce among the several states.”  Rather, it compels commercial activity from every citizen, and punishes inactivity on the part of any individual.

Anyone asserting ObamaCare’s validity must therefore answer this question:  If the Commerce Clause somehow permits forced commercial activity and prosecution of inactivity, what possible hypothetical federal mandate would it not permit?  Such a result would void a specific clause within the text of the Constitution because no limiting principle would remain.  That, in turn, would mean that no other provision remains safe in such a brave new world.

Hopefully, at least five Justices respect the Constitution enough to not remove yet another thread from its fabric.  Should the Court fail, however, the fight will not be finished.  The job will simply fall upon us as individual citizens to effectuate the individual freedoms that too few elected and appointed officials seem to respect.

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):  Representatives from the Pearl Harbor Survivors Association, Chapter #138 – Regarding the 70th Anniversary of the bombing of Pearl Harbor;  

4:30 (CDT)/5:30 pm (EDT):  Sally Pipes, President, CEO, and Taube Fellow in Health Care Studies at the Pacific Research Institute – Regarding ObamaCare and the split between doctors and the AMA;

5:00 (CDT)/6:00 pm (EDT):  Timothy Lee, CFIF’s Vice President of Legal and Public Affairs – Regarding the U.S. Supreme Court’s October 2012 Term and Labor Controversies within the Obama Administration; and

5:30 (CDT)/6:30 pm (EDT):  Tod Lindberg, Hoover Fellow and Editor-in-Chief of the monthly journal “Policy Review” – Regarding Military Interventionalism and Presidential Candidates.

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

From a must-read profile in the New Yorker on Supreme Court Justice Clarence Thomas:

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

Later on, the profiler notes that Thomas – along with other conservatives on the Supreme Court – is poised to overturn the clearest expression of government overreach in a generation: ObamaCare.  If that happens, Thomas’ judicial philosophy, and the Tea Party’s importance, will be vindicated.

Politico reports that Arizona Republican Governor Jan Brewer has formally petitioned the United States Supreme Court to overturn the 9^th Circuit’s opinion that important parts of the state’s tough immigration law (SB 1070) violate the U.S. Constitution.

Brewer said in May that she was “frustrated” by the court’s ruling and planned to appeal it.

“The bottom line is, is that everyone knows that the 9th Circuit has a reputation of being very, very liberal,” she said. “After deliberating and thinking about it, I said, ‘Let’s just go to the Supreme Court.’”

As usual, the outcome will probably hinge on the moderate views of Justice Anthony Kennedy.

Heaven help us.

CFIF’s Renee Giachino discusses the U.S. Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  Applauding the decision, which struck down as unconstitutional Arizona’s matching political funds scheme, Giachino says that no one should be coerced to support political candidates with whom he or she disagree.

It’s easy to attribute Obama’s poor approval ratings to generic anti-government sentiment and/or ongoing economic difficulty, citing Congress’s low approval as supporting evidence.  But a recent Rasmussen poll shows something interesting.  Namely, that the most conservative portion of our federal government receives the highest approval ratings from the public.  In fact, the number of respondents stating that the Supreme Court is doing a “good” or “excellent” job (35%) is approximately double the number who rate its performance as poor (18%).

Indeed, by a 31% to 26% margin, respondents believe the Supreme Court is too liberal, not too conservative.  Interesting insight for elected officials, and especially candidates, to ponder.

In Chamber of Commerce v. Whiting yesterday, the Supreme Court obliterated the Obama administration’s ludicrous position (with apologies to the Chamber of Commerce, which lost its usually perspicacious way on this one) that a state may not withdraw a business license from employers who knowingly or intentionally hire illegal aliens. The whole controversy was nonsense.  The Chamber and Obama had argued that federal law prohibits states from sanctioning employers in that way, even though — get this — the law they cited explicitly allowed states to enforce rules against hiring illegals through “licensing and similar laws.”  In pursuit of its extremely pro-immigration ideological agenda — which will be put to an even bigger and more politically explosive test in another Arizona case next year — the administration argued that the exact words of a federal statute should be ignored in order to read that statute as preventing state action meant to dovetail with and complement, not undermine, those very same federal immigration laws. Writing for a 5-3 majority, Chief Justice Roberts concluded that no ambiguity exists at all: “the plain wording of the clause,” “on its face,” supported Arizona’s contention that it was operating entirely within the law.

As Ed Whelan noted at Bench Memos, Roberts got in a very sharp dig at the dissenting justices (and at the administration) by noting that two dissents read the clauses at issue in completely different ways. His footnote is worth quoting, with my bolded emphasis added:

JUSTICE SOTOMAYOR creates an entirely new statutory requirement: She would allow States to impose sanctions through“licensing and similar laws” only after a federal adjudication. Such a requirement is found nowhere in the text, and JUSTICE SOTOMAYOR does not even attempt to link it to a specific textual provision. It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text.

As The Washington Times argued last December, a decision in favor of Arizona in this case means that in the more explosive case next year, “the administration’s argument… falls apart.” The Washington Times’ conclusion also stands: “States retain certain authority unless Congress expressly says otherwise. Arizona is right to insist that the Constitution is meant to limit federal power.”

Hans von Spakovsky of the Heritage Foundation notes some solace for businesses worried that they could lose their licenses over a mere mistake in hiring, rather than willful or flagrant violation of immigration laws: “As the Chief Justice pointed out, there is no sanction against employers for merely hiring unauthorized workers. The state law’s sanctions are only triggered if an employer hires such a worker intentionally, knowing that they are not authorized to be employed. An employer acting in good faith need not have any fear of being sanctioned, especially since they enjoy a safe harbor from liability if they use the federal E-Verify system to check on prospective employees.”

In a different piece, this from the Washington Examiner, von Spakovsky gives evidence of the practical reasons that the states’ authority in this regard is so important: The administration is flat-out refusing to enforce immigration laws on its own.

One can be moderate on the overall subject of immigration, supporting streamlined processes for legal immigration, while insisting that the law actually be enforced against those who break it. Culturally, too, legal immigrants (it stands to reason) are more willing to acclimate to American society and to our language, more willing to become more fully Americans as earlier waves of immigrants did; illegals tend (by my observation) to be more separatist, less assimilated, and even resentful. Is it too much to ask for the federal government to allow states to take reasonable steps to guard against the worst abuses from waves of unassimilated aliens, if the feds themselves won’t do it?

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CST to 6:00 p.m. CST (that’s 5:00 p.m. to 7:00 p.m. EST) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn.”  Today’s guest lineup includes:

• 4:00 p.m. CST/5:00 p.m. EST:  Jed Babbin, Deputy Undersecretary of Defense in President George H.W. Bush’s administration – foreign affairs;
• 4:30 p.m. CST/5:30 p.m. EST:  Rep. Doug Broxson, Florida House of Representatives – Florida’s 2011 Legislative Session;
• 5:00 p.m. CST/6:00 p.m. EST:  Mitchell Zuckoff, author of “Lost in Shangri-La: A True Story of Survival, Adventure, and the Most Incredible Rescue Mission of World War II”; and
• 5:30 p.m. CST/6:30 p.m. EST:  Erik S. Jaffe, United States Supreme Court expert – ObamaCare Cases.

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

Megan L. Brown, a partner at Wiley Rein LLP in Washington, D.C., discusses American Electric Power Co., Inc. v. Connecticut, a case currently before the U.S. Supreme Court.  Brown articulates why the High Court should reject the “public nuisance” climate change claim brought by a handful of states against some of the nation’s largest electric utility companies.

Listen to the interview here.

This year’s Conservative Political Action Conference (CPAC) is set to be the biggest ever, and CFIF Vice President of Legal and Public Affairs Timothy Lee is honored to be selected as one of its speakers.

His panel, entitled “The Left’s Campaign to Reshape the Judiciary,” is scheduled for 9:30 a.m. this Friday, February 11 in the Marshall Ballroom.  Kelly Shackelford of the Liberty Institute will moderate the panel, which also includes Ken Klukowski of the American Civil Rights Union and Dan Pero of the American Justice Partnership.   Our judicial system is a primary tool by which the political left seeks to remake America to fit its distorted image, and we must remain vigilant against that scheme.  Especially with the 2012 presidential kicking off, this CPAC isn’t one to miss.

Christine Erickson at Free Enterprise Nation has a chilling analysis of Judge Henry Hudson’s ruling that Obamacare’s individual mandate is unconstitutional:

The idea behind the individual mandate is that it is a way to achieve universal coverage through the private market, rather than through a government-sponsored plan. When considering the regulations placed on insurance companies by the reform law, the individual mandate is necessary because it brings healthy individuals into the insurance pool. Under a major provision within the law, insurers can no longer deny policies to people with preexisting conditions. If this regulation is put in place without the individual mandate, a healthy individual can go without insurance, knowing that he or she can purchase coverage after having been diagnosed with a serious medical problem. For insurance companies that sell to the individual market, this would shift the makeup of their policy holders to the point where they would spend much more on claims than they make in premiums, leaving them with the decision to drastically raise premiums (15% to 20% by CBO estimations) or exit the individual market altogether. Once private insurers are forced out of the individual market, it is almost guaranteed that the government would step in and create a government-run plan.

With Judge Hudson’s ruling, as well as two other recent rulings that the mandate falls within Congressional limits, healthcare reform supporters now see two likely outcomes to a Supreme Court challenge: the law will be upheld in its entirety, or the individual mandate alone will be overturned. If the Supreme Court decides the latter, the country could be immediately set on a path towards a government-run, single payer system.

Oh, dear…

Politico usefully rebukes the conventional wisdom about money in politics with a look at this year’s self-financing candidates:

…

The one winner in the group is Republican businessman Ron Johnson, who beat Sen. Russ Feingold (D-Wis.), one of the Senate’s most ardent champions of campaign finance reforms that would limit the role of big money in federal races.

In Connecticut, Republican Senate nominee Linda McMahon spent $47 million of her own money. In Florida, Jeff Greene dropped $24 billion attempting to get the Democratic nomination for the U.S. Senate. In California, Carly Fiorina invested $5.5 million out of her own accounts for a shot at the upper chamber, though that number paled in comparison to the $143 million ponied up by the GOP gubernatorial nominee, Meg Whitman. What do they all have in common? They all lost.

For the professional fretters who rent their garments in support of McCain-Feingold and gnashed their teeth over the Supreme Court’s Citizens United decision, there’s a valuable lesson here: money buys you the means to make your case, not the right to have that case accepted by the voters. Big money in political races can be just as much a drawback as an advantage. And if you don’t believe that, just ask the organized labor establishment, whose investment in this year’s races turned out to be a toxic asset.

As a longtime fan of the video work done by our friends over at Reason, I have to admit astonishment at a video that surpasses even their usually high standards.

Check out the latest from the West Coast libertarians on how an expansive judicial interpretation of the Commerce Clause has become a blank check to Congress (skeptics take note: Erwin Chemerinsky, the UC-Irvine Law School dean featured here is not a liberal straw man dug up for the purposes of this video. He’s a highly regarded intellectual on the legal left — which ought to make his closing comments even more disturbing).