The Stakes Could Not Be Higher

Tyranny, broadly defined, is the use of power to dehumanize the individual and delegitimize his nature.  Political utopianism is tyranny disguised as a desirable, workable, and even paradisiacal governing ideology. 
                                                                   -- Mark Levin, Ameritopia

Individual sovereignty is under attack.

Not the wacko, every-man-is-a-sovereign-the-United-States-is-a-corporation kind of sovereignty, but the notion that, as individuals, we have worth and dignity that deserve protection.

This attack exists in every corner of our society and has found its way into our language.  Liberal politicians talk about the "cost" of a tax cut and ask conservatives, "How are you going to pay for that tax cut?"  They thus view tax cuts as expenditures, but expenditures of what?  Of the money to which they deem the government entitled. 

A tax cut "spends" nothing.  It is an acknowledgment that the money being taxed belongs in the first instance to the earner, not the government.  Most Americans would willingly pay taxes to support legitimate government functions, but we resist ferociously the notion that our incomes belong to the government.

Of course, videos produced by the Democratic Party proudly proclaim that "government is the only thing to which we all belong."

The massive growth and rapid accumulation of power by the federal government threatens state sovereignty as well.  In Arizona vs. United States, the Supreme Court earlier this year affirmed an injunction preventing enforcement of Arizona's immigration law.  In doing so, Justice Scalia observed in dissent, the Court's ruling "deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have
no right to be there."

In a most painful intrusion into individual sovereignty, the Supreme Court blessed a mandate-as-tax designed to force Americans to engage in commerce, something never before attempted in the history of our great nation.  Despite the dissent's pointed observation that "Article I contains no whatever-it-takes-to-solve-a-national-problem power," we are in an era when every problem is deemed sufficiently serious to warrant federal intervention, appropriation, and perhaps even a new agency or board or czar, appointed by the president with plenary power to make things worse.

The attack on individual sovereignty is not just legislative, it is found in social and cultural attacks on the rich and the successful.  Mitt Romney is derided for paying taxes at a 14 percent rate, but little is made of his extraordinary charitable donations, particularly when matched up against the president's. 

Here in the Enchanted Mitten, the prevailing legal struggle is between rule-of-law judges, who apply the law as it is written by the people's elected representatives, and the empathy judges, who rule based on their own opinions and feelings, unfettered by notions of judicial restraint or faithful adherence to the will of the people as expressed by their representatives.  Rule-of-law judges respect people and what their legislators say; empathy judges have contempt for the people and apply their own views because they think they know better.  Rule-of-law judges believe in representative democracy; empathy judges believe in the elitism of the intellectual.  By disregarding the language of legislative enactments in favor of their own feelings, empathy judges demonstrate their contempt for individuals.

The defense of personal sovereignty is not founded upon positions on specific programs or issues, it is a philosophical defense of the individual that extends to all programs and issues.  Not every tax or program is an attack on the individual, but a political approach that treats the individual as an ATM from which to withdraw government funds is such an attack and must be fought. 

When judges interpret ambiguous language, they are doing their jobs, but when judges ignore clear and unambiguous language in a statute or contract in order to reach the result they personally desire, they are showing their distrust and contempt for individual decisionmaking and individual value.  While manifesting itself in specific decisions, the real issue is the broader philosophical problem that yields such results.

It remains to be seen how vigorously Mitt Romney would fight the vast expansion of federal power, but there is no doubt that another four years of President Obama would yield even more of what we have seen the last four years -- the relentless growth of government power and intrusion into the most private details of our lives and the continued seizure of economic activity and individual freedoms.  A Supreme Court already shaky in its defense of liberty would, under Obama II, become an eager participant in dismantling our constitutional protections.

We simply cannot allow this to happen.

We must elect Mitt Romney and give him a conservative Congress that will not only support his initiatives, but guide him on the course of liberty and individual freedom. 

In Michigan, we must vote for Justice Markman, Judge O'Brien, and Justice Zahra for the Michigan Supreme Court.

As Mark Levin put it so eloquently in Ameritopia:

It seems unimaginable that a people so endowed by Providence, and the beneficiaries of such unparalleled human excellence, would choose or tolerate a course that ensures their own decline and enslavement, for a government unleashed on the civil society is a government that destroys the nature of man.

Don't Get Your Panties in a Bunch -- It's Not Personal

Is it impossible these days to have a discussion about an issue or a political race without it becoming personal?  Apparently so, at least for one backer of Judge Jane Markey.

Markey is up against Colleen O'Brien for one of three Republican nominations for Michigan Supreme Court justice.  As faithful readers of this blog know, your Wizard has published three articles critical of Markey decisions, principally on the grounds that they contradict her claim to be a "rule of law" judge.  I have never attacked Judge Markey personally, nor have I attacked her supporters.

But they have attacked me personally.

The latest attack was purportedly authored by one Steven Vander Ark in an email distributed to the delegates to this weekend's Republican convention.  He says that I practice "the dark art of magic - turning fiction into fact while hiding behind the curtain of anonymity. Any lawyer reviewing his 'analysis' of Markey's decisions would recognize a straight up hatchet job: it is no wonder he wants to remain anonymous. His blog is a shameful sham set up for the sole purpose of producing political smears under the guise of legal analysis."  He goes on to criticize my discussion of the Wilkie case and my quoting of the Chief Justice in the Progressive Insurance case.

You know, if you're going to lie about me, at least tell the truth while doing it.

Here's where Mr. Vander Ark and the truth part company:

1.  This blog was established in 2007; it was not "set up for the sole purpose of producing political smears under the guise of legal analysis." 

2.  I never discussed the Wilkie case, and I do not consider a reversal as any reason not to vote for a judge.  As a judge whom I respect frequently says, "Even when the court of appeals affirms me, I still think I'm right."  I have never criticized Judge Markey or any other judge because one of their decisions was reversed.  My posts on Judge Markey may be reviewed here, here, and here.

3.  Mr. Vander Ark is correct that I quoted the Chief Justice in my discussion of the Progressive Insurance case here, and I did not quote Justice Markman's concurrence.  So what?  Does that somehow delegitimize the point I was making?  Am I under some obligation to quote Justice Markman?  If so, am I also obligated to quote Justice Marilyn Kelly, who sided with Markey's opinion?  And where is Mr. Vander Ark's defense of Judge Markey?  She claimed then -- and claims now -- to be a rule of law judge, but in Progressive Insurance, she cast aside clear statutory language in favor of a result that comported with her "sense of justice and fair play."  That is not a rule of law methodology; it is the very definition of an empathy judge.  Yet, Mr. Vander Ark says nothing, falling back on the notion that her position is "defensible."  That's a pretty low bar for someone who wants to be a Supreme Court justice.

So, you be the judge.  Have I turned "fiction into fact," as Mr. Vander Ark suggests?  If so, how? What exactly have I written that is incorrect?

Let's make things perfectly clear:  for me, this is not a personal issue.  I favor the rule of law, and I believe strongly, as Bob Young has written, that the "rule of law requires a judge to be subservient to the law itself, not the law to be subservient to the personal views of a judge."

In the cases I have described, Judge Markey has elevated her personal views over the the law.  Whether you agree or disagree with her ultimate decisions, this approach, this decisionmaking process, is not the approach and the process followed by rule of law judges.  That the results are "defensible" is irrelevant -- the rule of law does not concern itself with results, only with faithfully applying the law as written by the People through their elected representatives.

As I have written, Judge Markey seems like a very nice person.  I have no interest in her political donation history or in any of the rumors being circulated about her.  This is not personal; this is about job performance and judicial philosophy, period.

I don't know Mr. Vander Ark.  Is it significant that his email was paid for by Markey's campaign?  I don't think so.  His name is on it, and he will have to defend it, regardless of who wrote it or who paid for it.  His email is wrong and contains numerous factual errors, as I have outlined above, but I will not attempt to smear him as he has attempted to smear me.  Frankly, I have no interest whatsoever in Mr. Vander Ark -- he is not running for anything.  My only interest is in a full and frank discussion of the most important issue in this judicial campaign:  who will be a rule of law justice on the Michigan Supreme Court?

Let's just stick to the issue.  It's not personal.

Upon Further Review: More Problems for Markey

The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful.  Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored.  I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework.  [Someday, I'd like to meet Kevin and shake his hand.]  That doesn't mean I agree with him, however.  In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.

In a recent post, Kevin essentially made this argument:  We don't know much about Colleen O'Brien because she is a circuit court judge, and there have been other judges or nominees, about whom we knew little, who disappointed us, e.g., Harriet Miers, David Souter, and Mary Beth Kelly.  Therefore, we should not nominate Colleen O'Brien in favor of a candidate with a more readily viewable record.

I will address Kevin's observations about Mary Beth Kelly in a near-future article.  At this point, I will only say that Kevin has questioned my writing about two of Jane Markey's decisions when his entire criticism of Mary Beth Kelly is based on one decision, ignoring the many opinions in which she joined with the rule-of-law majority.   Harriet Miers was never confirmed, and Souter was put forth by the moderate northeastern wing of the party (i.e., John Sununu) in response to prior confirmation battles that got out of control due to the flyspecking and nitpicking over productive nominees.

Still, Kevin raises a valid point, but it doesn't carry the day.  He is arguing, in essence, that we should reject an "unknown" circuit court judge in favor of a "known" appellate judge with a troubling record.  That's not an exchange I'm willing to make, for a number of reasons.  First, I do credit endorsements to some extent, particularly by respected and unimpeachable judges such as Chief Justice Robert Young.  Second, I have met and talked to Colleen O'Brien and, frankly, I believe her when she says she is a rule-of-law judge.  Third, as I have detailed here and here, at least some of Judge Markey's opinions don't square with her rule-of-law claims.  Fourth, as I describe below, the decisions I discussed previously are not the only ones that concern me.

In People v Dowdy, a 2010 decision, Markey joined with two Democrat-appointed judges to find that Randall Dowdy, who pleaded guilty in 1984 to kidnapping, five counts of first degree criminal sexual conduct, and possession of a firearm during the commission of a felony, was not required to register with local law enforcement under the Sex Offenders Registration Act (SORA), because he happened to be homeless.  SORA expressly states that its purpose is to "better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders" and to "provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those people who pose such a potential danger."   Nonetheless, Markey and her Democratic colleagues on the panel found that sex offenders who happen to be (or claim to be) homeless do not have to register with law enforcement because they do not have "the security of a customary place of lodging."

The Supreme Court reversed the Court of Appeals, in a 4-3 decision (Young, Markman, Kelly, and Zahra in the majority), holding that the Court of Appeals had erred by ignoring longstanding precedent (dating back to at least 1897) that, under Michigan law, every person has a "domicile." Moreover, apart from reporting a residence or domicile, SORA requires every sex offender to report to law enforcement in person four times per year, a requirement that "is unconditional and contains no exceptions or exclusions for homelessness."  The evidence in the case showed that Dowdy failed to report for four years, or 16 quarters.  This requirement was ignored by the Court of Appeals. 

In summary, the Supreme Court found that "the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature[.]" 

As we have seen, Judge Markey's record includes decisions utterly contrary to the rule of law, in which decisions she has greatly expanded civil liability beyond that intended by the Legislature, ignored clear and unambiguous statutory language in favor of her own feelings as to what constituted "fair play," and, in Dowdy, ignored the clearly expressed intent of a statute in a manner not only contrary to the law but potentially quite harmful to public safety.

The reader may think we don't know enough about Colleen O'Brien, but I suggest we know more than enough about the troubling judicial decisionmaking of Jane Markey.

"Rule of Law" Should Be More Than Just A Slogan

Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien. 

As I wrote in 2010, "Judge Markey stresses her experience on the Court of Appeals. This is obviously a positive quality, but it should not be overstressed to the neglect of the quality of the decisions."  Since then, I have still not had the opportunity to argue before Judge Markey, but I have attended meetings at which she has spoken, and she seems like a nice person.  She describes herself as a "rule of law" judge, and, in a recent email, she stated:

Judge Markey knows that a judge's role is to follow the plain text of our Constitutions and statutes. You can see that for yourself in almost two decades of decisions that demonstrate she is a consistent constitutional conservative. Only appellate court judges, and not state trial court judges, generate open, public, easily accessible, transparent records because their decisions are written and used statewide each day by attorneys and judges in all types of cases. Only Judge Markey has this crucial credential, i.e. proof she adheres to the Rule of Law.  (Emphasis in original). 

Sounds good, right?  Well, in the words of the immortal Lee Corso, not so fast, my friend.  In 2010, I wrote about Allen v Bloomfield Hills School District, which was anything but a "rule of law" decision.  And, unfortunately, since then, I have learned of more examples of Judge Markey's adventures in open field running, untethered by the law.

One of the risks of touting your record is that people might actually read it.

The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision.  In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it.  Smith was supposed to be excluded from coverage under the policy.  If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery.  If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.

There is a Michigan statute directly on point here, MCL 500.3009(2), which states:

If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person.  Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance:  Warning -- when a named excluded person operates a vehicle all liability coverage is void -- no one is insured.  Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.  (Emphasis added).

So, to exclude a person from coverage, (1) the person must be named as excluded and (2) the specified warning must appear on both (a) the face of the policy or declaration page or policy certificate, and (b) on the certificate of insurance.  In this case, Smith was named as an excluded person and the specified warning appeared on the declaration page, but the warning on the certificate of insurance was not identical to the specified warning -- the last word was "responsible" instead of "liable." 

Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists.  This was a 2-1 decision.  Both judges in the majority are of Republican heritage; Judge Markey dissented. 

The majority reasoned:

The Legislature did not merely set forth the substance of the required warning.  Instead, the statute mandates use of "the following notice," which notice is explicitly provided for insurers to use verbatim.  Further the Legislature did not merely state that this notice is required, without specifying the effect of noncomplicance.  If the required warning notice is not provided, the named person "exclusion shall not be valid."  The statute could not be clearer.

 Dissenting, Judge Markey began with words that will echo throughout her campaign, but are belied by numerous opinions she has authored:

I too strongly adhere to the philosophy that it is this Court's function to apply the law as plainly written.  It is not our job to modify, amend, or read into a statute something that is not there; such legislating from the bench is simply improper.  Legislating belongs to the Legislature.

These are laudable sentiments, but they would be more persuasive if Judge Markey did not then immediately violate the philosophy she professes to share.  Judge Markey stated that she would have found the insurance company complied with the statute and excluded coverage for Smith, and she did so under the banner of "common sense":

Must we as strict constructionists abandon "common sense" and render a decision not only remarkably hyper-technical legally but also profoundly unjust and jarring to what I will presume to say is the average person's sense of justice and fair play?  I think not.

It is thus apparent that Judge Markey will apply the rule of law except where she believes it is not consistent with "common sense" or "the average person's sense of justice and fair play."  Under this standard, there is no standard -- she is free to rule as she wishes, without regard to the law, as long as she can fit her ruling under the unlimited umbrella of "common sense" or "fair play." 

The case was appealed to the Michigan Supreme Court, but the application ultimately was denied.  Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:

The dissenting opinion of Judge Markey in the Court of Appeals, although professing an adherence to the philosophy of interpreting the law as plainly written, nevertheless ignored the statutory language[.]  (Emphasis in original).

The Chief Justice described Judge Markey's opinion as "a shocking departure from the rule of law," and noted:

All Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves.  In a constitutional republic, judges have no such authority, and the rule of law crumbles where a constitutional, validly enacted mandate can be ignored simply because it offends a judge's sensibilities -- even if on "rare occasion[s]."  (Emphasis in original).

As if that wasn't clear enough, the Chief Justice kept the pedal to the metal:

With all due respect to Judge Markey, our judicial oaths require judges to enforce the Legislature's policy choices, even when we may personally find the outcome in a given case "unjust," "inequitable," "jarring," "hyper-technical," or contrary to what we intuit an "average person's" sensibilities to be.  As this Court has stated, it is a mere "caricature" of judicial restraint for a judge "to assert that her common sense should be allowed to override the language of the statute."  (Emphasis in original; footnotes omitted).

It's pretty simple -- "rule of law" is a standard to be applied in judicial decision-making.  It embraces the notion that the people speak through the Legislature and that clear and unambiguous statutes -- like the one involved in the Smith case -- are to be enforced as written.

When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings.  This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.

In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior.  For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written.  In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us.  In other words, we can play the game because we know the rules. 

In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels.  At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play."  A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge."  She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision.  Her standard for decision-making is no standard at all.

More to come.

 





 

Crittendon's Island

Those of us steeped in 1960s culture have no problem recalling the most famous charter of all time -- the SS Minnow, hired for a three hour tour that lasted three seasons and 98 episodes. 

Now, we have another charter that has beached, this time in the city of Detroit with a spinoff in the Ingham County Circuit Court.  It's the Detroit City Charter, but this time, instead of the hapless Gilligan, we have Krystal Crittendon.  Like the original series, this comedy seems destined to be with us for awhile.

You know the story by now.  In a nutshell, the city and the state of Michigan signed a consent agreement in an 11th hour effort to avoid an emergency financial manager.  As its implementation neared, Crittendon, the city's chief lawyer, filed a lawsuit in the Ingham County Circuit Court, claiming that the agreement is unenforceable because the city Charter prohibits agreements between the city and any entity that owes the city money.  Crittendon alleges that, because the state owes the city money for past revenue sharing and other items, the agreement cannot be enforced.  In response, the state is threatening to withhold $80 million in revenue sharing, which will send the city spiraling into insolvency.

It's important to note that neither the city council nor the mayor authorized or directed Crittendon to file this lawsuit.  She filed on her own, claiming that the city Charter imposes on her not only the responsibility, but the obligation to do so.  This line -- that the Charter gives her not just the authority to file but makes her file -- has been repeated in the press, but is it true?

There are three provisions of the Charter that, theoretically, might support Crittendon's position.  Here they are:

Sec. 7.5-203. Civil Litigation.
The Corporation Counsel shall defend all actions or proceedings against the City. The Corporation Counsel shall prosecute all actions or proceedings to which the City is a party or in which the City has a legal interest, when directed to do so by the Mayor.

Sec. 7.5-204. Penal Matters.
The Corporation Counsel is the city prosecutor and shall:
1. Institute and conduct, on behalf of the people, all cases arising from the provisions of this Charter or city ordinances and, when authorized to do so by law, cases arising under state law.

Sec. 7.5-209. Enforcement of Charter. 
The Corporation Counsel shall be responsible for enforcing compliance with the Charter. Corporation Counsel shall document in writing any violation of the Charter by the executive or legislative branches, Office of City Clerk, elected official or other persons subject to compliance with the Charter. This written notice shall contain the nature of the violation, including the Charter section(s) violated, direct the necessary action to be taken to remedy the violation, and date by which the remedial action must be taken. The time for taking the required remedial action shall not exceed fourteen (14) calendar days. The notice of Charter violation shall be presented to the offending body or individual, with a copy provided to the Mayor, City Council and City Clerk. In the event the offending body or individual fails to remedy the Charter violation within the time frame and manner required in the written notice, Corporation Counsel shall take all reasonable actions to secure compliance, including, but not limited to, judicial action.

Crittendon cannot rely on section 203, since she is barred from "prosecut[ing] all actions or proceedings to which the City is a party or in which the City has a legal interest," unless she is "directed to do so by the Mayor."  The mayor has publicly stated his disapproval of the lawsuit, so I think it is safe to say he did not direct Crittendon to file it.

Section 204 appears to provide independent authorization for Crittendon to act on her own and to command her to act -- "The Corporation Counsel . . . shall institute and conduct. . ."  But section 204 expressly relates to "Penal Matters," meaning criminal violations of city ordinances or charter provisions.  Black's Law Dictionary defines "penal" as "punishable; inflicting a punishment; containing a penalty, or relating to a penalty."  An action seeking a judgment declaring whether a contract is enforceable is not "penal" and, therefore, not a proper subject for unilateral action by the city's counsel.

Section 209 comes the closest to justifying Crittendon's position, but it falls short because it is obviously written to permit the city's counsel to enforce charter compliance internally, within the city government.  It could be argued that, since the city council approved the consent agreement, allegedly in violation of the charter, Crittendon is doing nothing more than securing the council's compliance.  The case, however, is City of Detroit vs. Michigan Treasury Department.  If the case was really all about forcing council to comply, it would be captioned Corporation Counsel vs. City Council, or something similar.  Section 209 does not apply to external entities.

Even if an arguable case can be made for Crittendon's actions, how can she square her lawsuit with section 210:

Sec. 7.5-210. Claim Reduction.
Corporation Counsel shall advise City departments, agencies and entities on risk reduction strategies that are necessary to limit or eliminate the City’s exposure to liability.

By filing this lawsuit, not only has Crittendon not acted to "limit or eliminate the City's exposure to liability," she has increased exponentially the possibility of an even greater financial crisis than currently exists.

Gilligan had a good heart, but when he tried to help his fellow castaways, he often made things worse.  That seems to be the case here as well, on Crittendon's island.

On My Son's Graduation

My son graduates from high school today.  In this day of nearly mandatory college, it's easy to lose sight of the fact that a high school diploma is a significant achievement to be celebrated.  To mark this special day, I'm reposting an item from last November.  Much has happened since then, but the essence of the post remains true, now more than ever.

******************************************************

Dear Alex:

In the 10 months since I wrote your last retreat letter, much has changed, but the important things are still the same, and the best things have gotten better.

This past January, you were working hard to make the varsity baseball team. Since then, you have lettered in track and cross-country, become a cross-country co-captain, and gotten into the best shape of your life.

Ten months ago, you were starting to rehearse a play in which you had a good, but small role. Today, you are rehearsing for a play in which you have the lead, and getting ready to audition for a play in which you hope to be the lead.

In January, you were thinking (occasionally) about school and (rarely) your AP exams. Now, you are thinking about college and even pausing once in a while to reflect on possible careers.

It should be obvious that this is a time of transitions for you. While you still have unfinished business at De La Salle, you are right to look ahead and plan ahead, because that’s the only way you will move ahead.

This is an exciting time for you, Alex, and it will get better (although, at times, there will be some moments of anxiety). Enjoy this time, and keep doing the things you need to do to enhance your life experience – focus on your classes, the play, and getting ready for the next track season – but keep looking forward.

While change swirls about you, the important things have not changed. What I wrote in January remains true today: “You are a fantastic person. You have a wonderful heart and care deeply about your family and friends. I marvel at your relationship with Tori, and I love hearing you talk to your mother about the events of the day or the latest drama in your life. I never get tired of talking to you (as you know all too well), and I really never get tired of listening to you. You have a wisdom and insight beyond your years, and it is endlessly fascinating to me.”

And while so many good things have been constant, the best things have gotten better. You have a deeper faith and appreciation of what it means to be a Christian in our world. You have begun to understand the positive impact you can have on others if you utilize the gifts God has given you.

As you move forward, always remember Jeremiah 29:11:

"For I know the plans I have for you," declares the Lord, "plans to prosper you and not to harm you, plans to give you hope and a future."

Prosperity, hope, a future –these are the wonderful things that await you if you remain steadfast in your studies, your virtues, and your heart.

You and I have spoken many times of the need to build a strong foundation. You are nearing the time when that foundation will be most severely tested, when you go off to college and live, work, succeed or fail, on your own. I know the kind of man you are, and I see the kind of man you can become. It makes me smile to think of you reaching your potential.

The great American soldier, General Douglas MacArthur, prayed:

Build me a son, O Lord, who will be strong enough to know when he is weak, and brave enough to face himself when he is afraid, one who will be proud and unbending in honest defeat, and humble and gentle in victory.

Alex, you have these qualities and so much more. I do not like to think about next year, because when you leave for college, there will be an incredible emptiness in my home and in my heart. But as painful as that will be, it is the inescapable companion and irrefutable evidence of the extraordinary joy you bring me every day.

You, your sister, and your mother are gifts from God, Alex, and I love you with the depth and emotion that such gifts deserve. I love you without condition, wholeheartedly. You are my son and, along with Tori and your mother, you are my life.

Dad.

These Libertarians? They're a Joke.

Just returned to the Emerald City from day one of the State GOP Convention, during which each congressional district chose its national convention delegates.  In The Wiz's district, a total of six delegates were selected, of whom three have no business representing the party at the national convention.

During the presidential primary in February, our district voted for Mitt Romney.  So, our delegates have to commit to vote for Romney at least through the first ballot at the national convention.  In order to be considered for national delegate, each person had to sign an affidavit stating he or she would vote for Romney.

So, what's the problem?  Three of the delegates voted in by our district were selected by bloc votes cast by those committed to a former Libertarian now claiming to be a Republican, who puts one in mind of Professor Irwin Corey.  Not only were votes cast as a bloc, they were withheld from other candidates as a bloc, under orders from campaign organizers.

Here's how it works:  6 candidates were running for four spots, one of them being a "Corey" supporter.  The other "Coreybots" in the caucus all voted for the one Corey supporter only, and did not vote for any other candidate, thus reducing the votes the other candidates would have received and artificially inflating the relative votes of the favored Corey backer.

Now, let me make clear that I do not care how the vote came out, and I argued against naming a slate of candidates to exclude the Coreybots.

Here's what I find troubling and laughable at the same time:  these Coreybots think of themselves as libertarians.  Random House Dictionary defines "libertarian" as "a person who advocates liberty,  especially with regard to thought or conduct; a person who maintains the doctrine of free will."

These folks didn't exercise free will (unless you argue that it was an act of free will to give up their free will, in which case there are a few other descriptors that would apply) -- they voted in lockstep, following orders.  (And do they have to be so nasty about it?  Two of the elected ones called one of the other candidates a "witch.").

So listen up, bots -- don't give me any more of your claptrap about individual liberty and autonomy, until you start walking the walk. 

And by the way, we'll be watching you at the convention, to make sure you cast your vote for Romney.  If you don't, that affidavit you signed might be evidence in a perjury case.  Just sayin'.

Poor Don Verrilli, or, "Thank you, sir, may I have another?"

Donald Verrilli, Jr. is the Solicitor General of the United States.  He argues the federal government's position in the most important cases that reach the U.S. Supreme Court.

He's not having a good 2012.

After getting pounded by the court in the health care litigation arguments (see here and here), he had to turn around less than a month later and argue that Arizona's immigration law, SB 1070, had been preempted by federal immigraton law.  The case, Arizona v U.S., featured another legal beat-down and, unlike the health care cases, the liberal wing of the court didn't exactly leap to his defense.  To top it off, his Arizona opponent was the same person he had faced in the health care cases - the great Paul Clement.

Here's the background on the Arizona case. 

Arizona's Border Problems

Arizona has a 370-mile border with Mexico.  One-third of all immigration-related arrests take place in Arizona.  Between 2006 and 2010, 51 drug-smuggling tunnels were discovered in the border town of Nogales, Arizona.  Phoenix has experienced numerous home invasions and hundreds of reported kidnappings, all linked to the drug trade and human smuggling.  As far as 80 miles from the border and within 30 miles of Phoenix, the federal government has put up road signs warning the public:

Danger -- Public Warning -- Travel Not Recommended" -- "Active Drug and Human Smuggling Area" -- "Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed" 

Arizona spends hundreds of millions of dollars each year incarcerating criminal aliens and providing education and health care to aliens unlawfully present in the state. 

The list goes on and on.  You get the idea -- unlawful immigration is an enormous problem in Arizona.

SB 1070

To address the problem, Arizona passed SB 1070.  The Supreme Court argument focused primarily on sections 2, 3, and 5.

Section 2 says that for any lawful stop, detention, or arrest by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."  The law further provides that the person's "immigration status shall be verified with the Federal government[.]"

Section 3 provides for state enforcement of the federal laws requiring persons to carry alien registration documents.  This section expressly does not apply to persons authorized to be in the U.S.

Section 5 makes it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in [Arizona]."

So, if you get stopped or arrested in Arizona and the police have a reasonable suspicion that you are in the U.S. illegally, they have to verify your immigration status with the federal government.

The Court Challenge and Preemption.

The U.S. sued Arizona, and ultimately, the Ninth Circuit (of course!) held that the Arizona law was preempted by federal law and, therefore, invalid and unenforceable.

The doctrine of preemption is founded on the U.S. Constitution's Supremacy Clause, Article VI, Clause 2, which states:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Over the years, the cases interpreting the Supremacy Clause have described three types of preemption -- express preemption, field preemption, and implied preemption.  The first occurs when federal law expressly preempts state law; the second when federal law "occupies the field" to the exclusion of a state law.  Neither of these are applicable in this case.  Therefore, the question before the Supreme Court was whether federal law impliedly preempted state law.

Supreme Court decisions have made it clear that a law is not preempted unless there is clear evidence that Congress intended preemption.  A state law is not preempted merely because the executive branch claims the law is inconsistent with its enforcement priorities.

Verrilli at the Podium

In the Supreme Court, Paul Clement did his usual sterling job as attorney for Arizona, attacking the Ninth Circuit's decision and defending the Arizona law.

Then, it was Verrilli's turn.

Before Verrilli spoke even one complete sentence, the Chief Justice interrupted him:

Before you get into what the case is about, I'd like to clear up at the outset what it's not about.  No part of your argument has to do with racial or ethnic profiling, does it?  I saw none of that in your brief.

To which Verrilli responded, "That's correct."  But, a few moments later, Verrilli seemed to backtrack:

Now, we are not making an allegation of racial profiling.  Nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. . . . And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully -- 

JUSTICE SCALIA:  Sounds like racial profiling to me.

Later, Verrilli argued that "under the Constitution, it's the President and the Executive Branch that are responsible for the enforcement of Federal law[.]"  This argument proved to be a little too much for Chief Justice Roberts, who responded:

It is not an effort to enforce Federal law.  It is an effort to let you know about violations of Federal law.  Whether or not you enforce them is still entirely up to you. . . .Under 2(B), the person is already stopped for some other reason. . . . So that decision to stop the individual has nothing to do with immigration law at all.  All that has to do with immigration law is the -- whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you. It seems to me that the Federal Government just doesn't want to know who's here illegally or not.

Justice Alito joined in, focused on Verrilli's argument that the Arizona law interfered with federal immigration law enforcement priorities:

How can a State officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?

Verrilli responded:

[T]here's a difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.

In other words, Arizona police officers can contact the Federal government for immigration information voluntarily, but Arizona cannot tell them to do so.

At this point, even Justice Breyer was confused:

Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government.  And then it says that the Federal Government has -- any agency -- and then it says the Federal Government has an obligation to respond. . . .If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call? . . .Because in my mind, I'm not clear what your answer is to that.

Verrilli stumbled around for a few seconds until he heard the lilting voice of Justice Sotomayor.  Surely, this would be a lifeline, right?

Not exactly.

JUSTICE SOTOMAYOR:  Can I get to a different question? . . . Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?  Because I, frankly -- as the Chief has said to you, it's not that it's forcing you to change your enforcement priorities.  You don't have to take the person into custody.  So what's left of your argument?

That was a good question.  Apparently, what was left of Verrilli's argument was the notion that foreign policy requires the Court to invalidate the Arizona law.  Verrilli argued:

And so -- so you're going to have a situation of mass incarceration of people who are unlawfully present.  That is going to raise -- poses a very serious risk of raising significant foreign relations problems.  And those problems are real,  That is the problem of reciprocal treatment of United States citizens in other countries. 

JUSTICE KENNEDY:  So you're saying the government has a legitimate interest in not enforcing its laws?

Shortly thereafter, Justice Scalia took up this issue:

JUSTICE SCALIA:  Well, can't you avoid that particular foreign relations problem by simply deporting these people?  Look, free them from the jails. . . and send them back to the countries that are objecting. . . . What's the problem with that? 

GENERAL VERRILLI:  *  *  * Between 60 and 70 percent of the people that we remove every year, we remove to Mexico.  And in addition, we have to have the cooperation of the Mexicans.  And I think as the Court knows from other cases, the cooperation of the country to whom we are -- to which we are removing people who are unlawfully present is vital to be able to make removal work.  In addition, we have very significant issues on the border with Mexico.  And in fact, they're the very issues that Arizona's complaining about in that -- 

JUSTICE SCALIA:  So we have to -- we have to enforce our laws in a manner that will please Mexico.  Is that what you're saying? 

GENERAL VERRILLI:  No, Your Honor, but what it does -- no, Your Honor, I'm not saying that -- 

JUSTICE SCALIA:  It sounded like what you were saying. 

Mercifully, Verrilli's time ran out shortly after that exchange.  That brought Paul Clement back up for rebuttal, which gave him the opportunity to add the human touch to his brilliant constitutional analysis:

[L]ook at the declaration of Officer Brent Glidewell[.]  He pulled somebody over in a routine traffic stop and was shot by the individual.  Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal entry into the United States.  He was stopped on three previous occasions, and his status was not verified.  Now, if it had been, he certainly would have been apprehended.  In at least two of the stops, his immigration status wasn't checked because of a city policy, City of Phoenix. 

In the movie Animal House, Kevin Bacon is initiated into a fraternity by being ruthlessly paddled.  After each whack, he shows he can take it by saying, "Thank you, sir, may I have another?"

Don Verrilli can relate to Bacon's character.  The Obama administration hands him lousy case after lousy case, he goes up the Supreme Court and takes his lumps, then has to go back to his office and wait for the next loser.

Verrilli is an excellent lawyer (you don't get to be Solicitor General unless you 've got something on the ball) and the Court respects him.  It would be nice if his boss respected him enough not to keep sending him to the Supreme Court armed with the sort of arguments we've seen in the last couple months.

Understanding the Health Care Litigation, Part Three

First, the gloating.

Yesterday, I wrote:  "Commerce doesn't exist to be regulated until people engage in commerce. The ACA forces people to engage in commerce, then regulates them."

Today at the Supreme Court, Justice Kennedy asked the Solicitor General: "Can you create commerce order to regulate it?"

Now, I'm not saying that Justice Kennedy checks out the Wizard of Laws before important arguments, but is it more than a coincidence that his first question to the Solicitor General echoed the Wiz?  Just sayin'.

Now, to business.

Today's Arguments

Not a good day for the Obama administration or its Solicitor General, Donald Verrilli.  He was questioned relentlessly by the Justices -- especially Kennedy, Alito, and Scalia -- on the implications of the administration position that the individual mandate was founded on the Commerce Clause.

Here are three beautiful statements by Justice Scalia:

The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what -- what else can it not do?

          and

An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

          and

I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.

Verrilli had a difficult time, but as flustered as he got, Paul Clement, arguing for the 26 states challenging Obamacare, was that composed and cool under fire.  Here's an example from an exchange between Clement and Justice Breyer, who, as part of a question that ran two pages in the transcript, inquired whether Congress had the power to create commerce, based on the fact that Congress created a national bank, which was approved by the Supreme Court in the 1819 McCulloch v Maryland decision.  Clement replied coolly:

MR. CLEMENT: Well, Justice Breyer, let me start at the beginning of your question with McCulloch.  McCulloch was not a commerce power case.

JUSTICE BREYER: It was both?  

MR. CLEMENT: No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it's okay to conjure up the bank as an exercise of the commerce power.

That's pretty much the way the day went -- Verrilli struggling and Clement in command.  As most appellate lawyers will tell you, it's risky to predict outcomes based on questions during oral argument, but it's difficult to see this as anything other than a good day for Obamacare opponents.

Wednesday's Arguments on Severability and Medicaid

Read about severability here.  If the lower court decisions on severability were laid end to end, they would point in all directions.  Still, it's hard to imagine that this bill would have passed without the individual mandate, so if the mandate is declared unconstitutional, there is no logical reason the rest of the bill should survive.

The other issue is Obamacare's Medicaid expansion.  As described by the 26 states challenging the law:

Title II of the ACA expands the Medicaid program in multiple respects and transforms it from a cooperative program addressed to specific categories of the most needy into a mandatory program designed to fulfill the individual mandate for the entire non-elderly population with income below 138% of the federal poverty line. Whereas States traditionally were required to offer Medicaid only to those low-income individuals who fell within certain “categorically needy” groups (families with dependent children, elderly, blind, disabled, children, and pregnant women), and retained significant flexibility to determine whether and to what extent to cover other low-income individuals, the Act requires States to cover all individuals under age 65 with incomes up to 133% of the poverty level, with a 5% “income disregard” provision that effectively raises that threshold to 138%.

Congress could not require the states to implement and expand these programs through direct legislation, however, so it is attempting to accomplish it through the "spending power."  Congress has conditioned the receipt of all federal monies on state compliance with the new Medicaid provisions, thus effectively coercing state compliance by a kind of blackmail.  As the 26 states put it:

The ACA threatens States with the loss of every penny of federal funding under the single largest grant-in-aid program in existence—literally billions of dollars each year—if they do not capitulate to Congress’ steep new demands. There is no plausible argument that a State could afford to turn down such a massive federal inducement, particularly when doing so would mean assuming the full burden of covering its neediest residents’ medical costs, even as billions of federal tax dollars extracted from the State’s residents would continue to fill federal coffers to fund Medicaid in the other 49 States.

Ultimately, I think the Court may end up not deciding the Medicaid question at all.  If the Court finds the individual mandate unconstitutional and determines that it is not severable, the entire act, including the Medicaid provisions, crumbles.  At that point, the Medicaid issue is moot and can be reserved for another day.

Another fascinatiing day coming up on Wednesday, with severability being the big issue of the day.

Understanding the Health Care Litigation, Part Two

Round one is over, and the world waits anxiously for round two tomorrow in what is the most important Supreme Court case since Brown v Board of Education, and maybe since Marbury v Madison.

Today's Arguments

Today the Supreme Court heard arguments on whether it should or should not decide the health care cases because of the federal Anti-Injunction Act.  This law, passed in 1867, essentially provides that a tax cannot be challenged until it is paid.  One court found that, since the penalty (the alleged "tax") imposed by the Patient Protection and Affordable Care Act (ACA) for not buying health insurance does not take effect until 2014, and since therefore no one had been forced to pay the tax yet, the challenge to the law is not yet "ripe" for decision. 

All the parties challenging the law and the federal government agreed that the the case is ready to be decided, so the Supreme Court had to appoint an attorney, Robert Long, to argue that the the Anti-Injunction Act barred the proceedings.  Things didn't go too well for him.

From the questioning, it was fairly apparent that the justices want to reach the merits of the ACA litigation.  Justice Sotomayor asked Mr. Long to describe the "parade of horribles" that would occur if the court decided to reach the merits.  Much fumbling ensued, leading Justice Scalia to observe "there will be no parade of horribles."  Justice Breyer pointed out that the statute calls it a penalty, not a tax, and Justice Ginsburg observed that it is not a revenue-raising measure since, if everyone obeys the law, there will be no revenue associated with the penalty.

When the Solictor General, Donald Verrilli, argued that the penalty is not a tax, Justice Alito snagged him with the conflicting positions taken by the Administration.  To get the case heard, Verrilli argued the penalty is not a tax; but to get the law upheld, Verrilli argues the penalty is a tax, an inconsistency upon which Justice Alito seized:

General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

 So what was Verrilli's answer to that?  It turns out, the same words can mean different things on different days:

Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

Based on the tenor of the questioning, I think there is little doubt the court will brush aside the Anti-Injunction Act in order to get to the meat of the case.

Arguments Over The Individual Mandate

Today's argument was one hour and 29 minutes long. Tomorrow, the court has allotted two hours for the main event -- the argument over the individual mandate.

The ACA requires that virtually every living person in America -- except for illegal aliens and some other, incredibly narrow, categories -- must buy health insurance.  For the first time in the history of this nation, the federal government is requiring Americans to engage in commerce merely because they are alive.

There are a lot of requirements that arise once a person decides to participate in commerce, but there has never before been a law forcing people to make economic decisions.

The argument over the individual mandate --- also known as the mandatory coverage issue -- will focus on whether the federal government has the power to impose the mandate based on the Commerce Clause or the Necessary and Proper Clause. 

Article I, Section 8 of the Constitution provides:

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This provision only permits the Congress to make laws that are necessary to carry out its other powers, so to find the mandate "necessary and proper," the court will have to decide whether the mandate is permitted under Congress's other powers, which sends us right back to the Commerce Clause, Article I, Section 8:

The Congress shall have Power [...] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Commerce doesn't exist to be regulated until people engage in commerce.  The ACA forces people to engage in commerce, then regulates them.  There has never been a law like it, and the only reason there is any argument about its constitutionality is the Supreme Court's historical and ridiculous distortion of the Commerce Clause in the support of political aims.

The modern, nearly limitless, interpretation of the Commerce Clause had its genesis in the 1942 case of Wickard v Filburn.  The U.S. government had established a Depression-era scheme designed to prop up the price of wheat, and it worked.  In 1941, wheat producers cooperating with the "Agricultural Adjustment" program received $1.16 a bushel, compared to the world market price of $.40 a bushel. 

The federal regulations established wheat production limts based on acreage.  Filburn was a farmer who decided to grow more than his allotment, but he grew the wheat for his own use; he did not sell any of the wheat in interstate commerce.   Nonetheless, the court found that Filburn had violated the law, which was a valid exercise of government power under the Commerce Clause.  The court reasoned that, if Filburn had not grown the excess wheat for his own use, he would have had to buy wheat on the open market.  Although Filburn alone might not have been able to affect the market, the cumulative effect of thousands like him would be substantial.  Therefore, Congress has the authority to regulate a completely intrastate market if the cumulative effect of such activities would have a substantial effect on interstate commerce.

Thus, constitutional doctrine was founded on the "what-if-everyone-did-that" argument, explaining at least in part why Wickard v Filburn makes most lists of the worst Supreme Court decisions in history.

The health care cases go beyond Wickard.  Way beyond Wickard.  If the ACA is upheld as a constitutional exercise of Commerce Clause authority, there is nothing the federal government can't require under the same theory.  The government can tell us what to eat, what to wear, what to do, how many children to have -- there will be no limit.

To put it in Wickard terms, upholding the ACA would mean the government could not only tell us not to produce excess wheat, it could force us to stop producing wheat altogether and buy that wheat only from government-sponsored exchanges.  That is, it could if the anti-gluten forces don't get there first.

In other words, this case is huge.  The hugest.  Stay tuned.

An Open Letter to Michigan Republicans

Dear Michigan Republicans:

Stop it.  All of it.  Just stop.

It is truly amazing how we pay lip service to unity, then immediately turn around and try to tear each other apart.  This gives aid and comfort to the enemy, and it stokes the mistrust that so characterizes our current political process.

The negative campaigning, the dirty tricks, the middle-of-the-night meetings that rewrite the rule book – does it matter?  In the long run (meaning about six months from now), will any of this matter?

To some extent, of course it matters.  We have to be able to work together to accomplish our common goals, and our recent primary certainly did not bring us any closer together, but we have lost our focus on those common goals that unite us.  No two people have complete agreement on every issue -- how boring would that be? -- but I have witnessed people getting absolutely roasted over any minor deviation from an author's credo. 

Have you looked at Facebook lately?  I don't blame the Santorum folks for putting a positive spin on things, but the vitriol directed at the Romney campaign is out of place.  And Romney people, until now I didn't know you could be a sore winner.

And how can there be a split on the Credentials Committee vote awarding the at-large delegates?  It's arithmetic!  There is a right answer!

One thing in particular that needs to change -- elected or paid GOP leadership, including our national committee people and all members of the state committee, should not be endorsing candidates in a contested primary.  If you don't know why, look at the current controversy surrounding the Credentials Committee and the announced endorsements of the 4-2 majority.  Call it what you want, but it taints the process.  The Party should be the Party of all the candidates, ready to leap into action to support the winner of the primary, not divided by pre-primary endorsements that suggest the deck is stacked or that give the appearance of impropriety.

We are fond -- very fond -- of referring to Ronald Reagan, and the tug-of-war over his mantle is sometimes amusing to watch.  But one thing Reagan did was to articulate his vision of America.  Not a set of legislative priorities, but a vision of what this country means and could be.  Then the voters came to that vision.  As Reagan said in his famous 1974 "The Shining City Upon a Hill" speech:

Standing on the tiny deck of the Arabella in 1630 off the Massachusetts coast, John Winthrop said, “We will be as a city upon a hill. The eyes of all people are upon us, so that if we deal falsely with our God in this work we have undertaken and so cause Him to withdraw His present help from us, we shall be made a story and a byword throughout the world.” *  *  *

We cannot escape our destiny, nor should we try to do so. The leadership of the free world was thrust upon us two centuries ago in that little hall of Philadelphia. In the days following World War II, when the economic strength and power of America was all that stood between the world and the return to the dark ages, Pope Pius XII said, “The American people have a great genius for splendid and unselfish actions. Into the hands of America God has placed the destinies of an afflicted mankind.”

We are indeed, and we are today, the last best hope of man on earth.

Which of our candidates is describing this kind of vision of America?  Which one of us is doing so?  Has the polarization that grips the national political scene taken hold of the GOP here in the Enchanted Mitten?

The good news is that this can all be fixed.  Easily, in fact.  It will take, however, an en masse commitment to truth, transparency, and togetherness.  For one, the Credentials Committee should reconsider its recent vote, and the Santorum campaign should drop all challenges.  There should be a voluntary 30-day moratorium on saying anything bad against any fellow Republican.  Let's focus on the target-rich environment the Democrats have provided, okay?

And in the future, let's remember that things don't need to be rigged.  Debate doesn't need to be shut down.  We don't need to "get around" anyone.  Our party is about fair, open, honest debate and an unswerving commitment to freedom. 

Time to get back to basics, before it's too late.

The Wiz.

California Hippiespeak Comes to the U.S. Supreme Court

Although your Wizard has never personally argued a case before the U.S. Supreme Court, it is undoubtedly a daunting task.  The courtroom itself is majestic and impressive, and it is designed -- if not in intent, but certainly in effect -- to be humbling. 

One can only imagine, then, the butterflies that took up residence in the digestive system of one Jonathan Libby, who recently argued for the respondent in U.S. v Alvarez. 

Mr. Libby's client, Xavier Alvarez, had been convicted of violating the Stolen Valor Act, a 2006 federal law that made it a crime for a person to falsely claim that he had been awarded a medal for service in the armed forces.  It turns out that Alvarez, an elected member of the Board of Directors of the Three Valleys Water District in Claremount, California, stated to his fellow members during a meeting: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medial of Honor.  I got wounded many times by the same guy. I'm still around.”

These statements were lies—he never served in the Marines or received a Medal of Honor. In fact, Alvarez had frequently lied about his accomplishments in the past, often fabricating sensational stories about his purported military service.

After his conviction, Alvarez appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the conviction, holding that the Stolen Valor Act violates the First Amendment because it unconstitutionally limits free speech and is not narrow enough to meet a “compelling government interest.”

So that brings us to the argument before the Supreme Court.  After hearing from the U.S. Solicitor General, the Court called on deputy public defender Jonathan Libby:

          MR. LIBBY: Thank you, Mr. Chief Justice, and may it please the Court:

The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie. It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.

CHIEF JUSTICE ROBERTS: What is -- what is the First Amendment value in a lie, pure lie?

 MR. LIBBY: Just a pure lie? There can be a number of values. There is the value of personal autonomy.

 CHIEF JUSTICE ROBERTS: The value of what?

MR. LIBBY: Personal autonomy.

CHIEF JUSTICE ROBERTS: What does that mean?

 MR. LIBBY: Well, that we get to -- we get to exaggerate and create -

CHIEF JUSTICE ROBERTS: No, not exaggerate -- lie.

MR. LIBBY: Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain. That was creating a persona, and he made things up about himself -

CHIEF JUSTICE ROBERTS: Well, but that was for literary purposes. No one is suggesting you can't write a book or tell a story about somebody who earned a Medal of Honor and it's a fictional character, so he obviously didn't. It just seems to me very different.

 MR. LIBBY: Perhaps. But there are other things. In addition to the fact that people tell lies allows us to appreciate truth better.

So Mr. Libby would have the Court create constitutional doctrine on the psychobabble of "personal autonomy" and "lies allow us to appreciate truth better."  I think Mr. Libby may have spent too many years in the public defender's office or in California or both.  How about "murder is an expression of self-esteem and helps us appreciate life better" -- does that argument work for you?

I cannot predict the outcome of this case -- the Court will be sympathetic to Congress's intentions, but it has applied the First Amendment pretty broadly -- but I pray that, even if Alvarez prevails, the Court does not turn its hallowed courtroom into a haven for arguments more appropriately made on the Jerry Springer or Dr. Phil shows. 

Understanding the Health Care Litigation, Part One

After all the politics appearing in these hallowed pages lately, it's time to get back to fundamentals, as befits the Wizard of Laws.  (Though I dare say that my January 7 and November 9 posts below have been amply vindicated).

The big event of the U.S. Supreme Court's 2011-2012 term -- and perhaps the most important since Brown v Board of Education -- will be the decision on the various cases involving the Patient Protection and Affordable Care Act. commonly known as Obamacare.

The issues to be argued are known generally by the public, but few understand them in any detail.  For example, during a recent forum, the Lieutenant Governor here in the Enchanted Mitten, arguing for a state-established health care exchange, said that even if the Court finds the individual mandate unconstitutional, it will have no effect on health care exchanges, since HCEs are not before the Court.  This position is not exactly accurate.  If the Court determines that the individual mandate is unconstitutional. it will then  expressly decide whether the entire law must be struck down, including those provisions pertaining to health care exchanges.

The issue of whether to invalidate an entire law when one provision is declared unconstitutional is what is known as the issue of severability.  In other words, can the offending provision be severed from the rest of the law so that the law remains in effect, minus the severed provision?

There is a fair amount of misconception about severability.  Many people believe that an unconstitutional  provision cannot be severed unless there is a severability clause in the law itself.  Since Obamacare contains no severability clause, the argument goes that declaring the individual mandate unconstitutional will strike down the entire law automatically.

This is not true.

The Supreme Court established the applicable severability standard in the 1987 case of Alaska Airlines v Brock, in which it held that an unconstitutional provision may be severed "unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not."  So, severability is presumed, unless it is clear that, without the unconstitutional provision, Congress would not have enacted the law.

The Brock standard is not exactly a model that lends itself to metaphysical certainty.  The Court found that the "more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress."  Again, there is a certain subjectivity to this standard, which relies on faithful application by the courts.

Yes, I said "faithful," not "consistent."  In the four cases in which the individual mandate was found unconstitutional, the courts dealt with severability in four separate ways.  The courts in question decided:

1.  Only the mandate and those directly-dependent provisions which make specific reference to the mandate were to be severed;

2.  The mandate is non-severable and the entire law is invalidated;

3.  Only the mandate itself is severed; and

4.  The mandate is non-severable from the guaranteed-issue and preexisting conditions provisions, but the rest of the law remains intact.

One Supreme Court petitioner wrote:

As these four divergent opinions make clear, there is serious confusion as to how to apply this Court's severability jurisprudence to the [Act].  That confusion stems in large part from the unusual facts at hand, including the extraordinary length and complexity of the Act, and 'the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.'

As you can tell, this is a complicated issue, but it is now before the Court and, if the individual mandate is declared unconstitutional, the Supreme Court will then determine whether Congress would have enacted Obamacare without the individual mandate.  If the Court declares the mandate non-severable, the entire law will be invalidated, including those provisions related to health care exchanges.

Next time:  a closer look at the individual mandate and interstate commerce.

The Wizard of . . . Politics?

After the GOP at Oakland University on November 9, I wrote:

Santorum:  He does well on every question.  They just won't ask him enough of them.  If he was in the middle of the stage and got 10 questions, the dynamics of this race would change instantly.

Now, after Iowa, there will be two more debates before the New Hampshire and South Carolina primaries.  The debates will surely feature more questions to Sen. Santorum, and we'll find out quickly if The Wiz is ready to branch out.

Stay tuned!

America's Newest Protected Class -- Felons!

Your Wizard doesn't usually have a crystal ball, but he may have accidentally careened into the future over a year ago when he wrote about growing efforts to give special status to felons.  At that time, there were signs that in elections, the census, and the workplace that felons were going to get special status, on the theory that, since minorities commit felonies in greater proportion than white people, to discriminate against felons is nothing more than thinly veiled racial discrimination.

These signs are now coalescing into a full-fledged attempt to elevate felons into America's newest protected class.  Massachusetts now prohibits employers from asking about criminal records on initial employment applications, except under certain limited circumstances.  The city of Cleveland will no longer ask applicants whether they have ever been convicted of felonies.

In fact, over 30 cities, including Detroit and Kalamazoo here in the Enchanted Mitten, have joined the "ban the box" (BTB) movement to prohibit any job application questions about a prospective employee's criminal history.  Litigation is pending in Illinois, New York, Pennsylvania, and California, designed to hold employers responsible for discrimination because they asked for criminal histories on their job applications.

The professed theory behind BTB is that by removing criminal history as an automatic disqualifier at the outset, more felons will be able to get deeper into the application process and be judged on their positive qualities, not just on their criminal records.  This is obviously based on the premise that, for many jobs, a felony history is irrelevant and should not disqualify the applicant,

The BTB theory falls apart, however, when one looks at the later stages of this new employment process.

Let's take a look at Detroit's approach.  Section 13-1-12 of the City Code provides:

Except as provided for in section 13-114 of this Code, the City of Detroit shall not inquire into or consider the criminal conviction of an applicant for employment with the City of Detroit until the applicant is being interviewed or is otherwise qualified for employment by the City.

In other words, don't ask until later.

This approach comes completely asunder with subparagraph 2 of Section 13-1-14:

This division does not limit the right of the City:
(2) To otherwise take into consideration during the hiring process a potential employee's criminal conviction[.]

So, you can't ask about a criminal conviction on the application, but you can take it into consideration any other time you feel like it.

What kind of protection is that?

Answer:  it is no protection at all, but it allows the City to say it is doing something to help felons and, more importantly, it reveals the lie inherent in the "ban the box" lunacy -- while pretending to assist felons in re-entry into the workplace and society, the code contains a loophole big enough to drive a stolen semi through.  And it's all to protect the people who really need protecting -- city employees.

Despite the hypocrisy and empty promises, it's only a matter of time before BTB-types step up the pressure and start getting real concessions from city leaders.  At some point, it will be completely illegal to inquire at any time into an applicant's criminal background and, given the growing segment of our population with felony records, our government offices will be staffed with sizable percentages of felons.

Then crime won't just be for our elected officials.  But, that's just my crystal ball talking.