DriveThru – Get What You Need

Senate minority leader Mitch McConnell took to the Senate floor yesterday to rebut President Obama’s State of the Union comments about the Citizens United decision (that supposedly opened the floodgates to foreign money pouring into our federal elections). You should read McConnell’s press release for particulars, but his point is that federal law, and the Federal Election Commission regulations concerning foreign corporations were left unchanged by the CU decision and are pretty unambiguous.

McConnell cites a provision of the election statute, Title 2 of U.S.C. Section 441e, which he paraphrases:

Foreign nationals, specifically defined to include foreign corporations, are prohibited from, quote, ‘directly or indirectly’ making ‘a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election.’

The FEC regulation which was also not affected by the decision, says:

‘A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person’s Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.’

McConnell also makes the point, that with regard to state elections, 26 states allow corporations and unions to speak, without any discernable adverse impacts being reported.

It seems kind of obvious to me that Apple, Inc. (or any big public corporation) would avoid (like the plague) taking sides in an election where, by doing so, they stand to alienate half of their customers.  But industry groups, consumer groups, advocacy organizations and the like represent groups of people (people who are voters, let’s not forget) on all points along the political spectrum who should be entitled to have their voice heard in the 60 days prior to an election. McCain-Feingold’s restrictions on such speech during the 60 day “window” prior to a federal election don’t make much sense, let alone survive the First Amendment’s plain language.

“…for gays’ and lesbians’ political progress.”

So testified Professor Gary Segura of Stanford University as an expert witness for the anti-Prop 8 plaintiffs on Wednesday.

Chilling. The implications for people of faith are unmistakable.

Andy Pugno, the General Counsel for ProtectMarriage.com, has more on Wednesday’s developments. The Catholic League weighs in as well. Bill Duncan calls it “religious bigotry.”

Should people of faith be prohibited from participating in public policy, the creation of our laws? Is every law that expresses morality consistent with some religion automatically unconstitutional? That seems to be what the plaintiffs in Perry are after. That’s a bridge too far even for Judge Walker, I suspect.

I like this statement about faith and public policy made by a well-known politician:

“Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, Williams Jennings Bryant, Dorothy Day, Martin Luther King – indeed, the majority of great reformers in American history – were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their ‘personal morality’ into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.”

Can you guess who said that?

(UPDATE: ADF tweets from the courtroom that Segura has backed away from his “religion is the obstacle” statement. He’s now saying that it’s okay for religious groups to participate in the democratic process.  Gee, thanks)

The Supreme Court has agreed to hear the case involving the Washington State Ref 71 petition signers that I blogged on here and here. After a federal district court judge issued an order preventing publication of the list of signers, the 9th Circuit reversed, and now the Supreme Court has agreed to review the issue.

In a way, the issues involved are the same as the Prop 8 televising decision recently from the Supreme Court. There is a concern over the safety of the petition signers based on the statements of Washington LGBT groups, as well as past behavior of LGBT groups in California and elsewhere involving marriage amendments. On the other hand, legally speaking, most petitions are generally considered public documents freely available to the public upon request.

If the Supreme Court does reverse the 9th Circuit, it will probably invoke (or at least note) the famous Supreme Court case of NAACP v. Alabama, involving the attempt by the state of Alabama to force public disclosure of the NAACP’s state membership list in a race-charged atmosphere (1958) where fears of retaliation were justified. Although the NAACP case is not completely similar to the Ref 71 case, the parallels can hardly be ignored, either.

This case will probably be argued sometime in the fall.

Without the healthcare bill’s current provisions forcing everyone to purchase health insurance, the cost to the taxpayer of the new law would skyrocket even further than the projected $848 billion, making the political chances for passage of this big-government monstrosity even more remote.

As I’ve noted before (here, here, here, here and here) the Dems have had some difficulty pointing to the constitutional provision that gives them the authority to force people to engage in an economic activity just because they’re alive and kicking. Usually they end up with either the  Commerce Clause or their taxing authority under the “enumerated powers” provisions of Article I, Section 8.

In a very detailed analysis published by The Heritage Foundation, Professor Randy Barnett, Nathaniel Stewart and Todd F. Gaziano explain why the bill’s mandate that all must purchase a health insurance policy is unconstitutional and entirely unprecedented. The executive summary is pretty readable, and for the legal detail-oriented types, the main body of the paper is here.

For instance, the paper addresses the usual liberal argument that the healthcare bill’s mandate is no different than requiring drivers to purchase auto insurance. Actually, there are 4 reasons Barnett, et al, give for why it is very different:

• States require driver insurance. State authority is much greater than federal authority in terms of constitutionally-granted powers.
• Auto insurance requirements impose a condition on the voluntary act of driving; a health insurance mandate imposes a condition on life itself.
• State auto insurance requirements are limited to those who drive on public roads – constructed, owned and maintained by the government. What a government can regulate on its property is much more extensive than what it can regulate in terms of private behavior.
• Auto insurance laws only require drivers to insure injuries to others, while allowing the driver to assume the risk of injury to himself.

We should be dealing with tort reform, allowing interstate competition among insurance companies, and solve the thorny issue of pre-existing conditions. These are the issues that can cut costs immediately and get more people covered who want to be covered.

My first post on this is here. I made fun of Speaker Pelosi’s and Senator Leahy’s attempts to answer reporters’ questions here. Despite Pelosi’s and Leahy’s harrumphing and non-answer answers, the issue will not go away, I’m please to report.

Professor Althouse notes that forcing people to buy insurance just as a condition of walking around and taking up space would be unprecedented, but she says the argument that the Commerce Clause gives Congress sufficient authority to pass the bill is, even if true, only half of the discussion:

“…[T]he point is that it’s not enough for Congress to have an enumerated power to pass a law. It must also avoid violating individual rights.”

She doesn’t specify what “individual rights” she might be thinking of. That might be an interesting discussion all by itself. But she doesn’t like the Commerce Clause justification anyway. She argues that the Commerce Clause only gives Congress the authority to regulate activity, not inactivity:

“In this new case (of mandating that individuals must purchase insurance), we’d have Congress regulating people for their inaction. What other case is like that? Congress can ‘regulate activities that substantially affect interstate commerce.’ Where’s the activity? It’s inactivity!”

Senator Orrin Hatch is a lawyer, a member of the Senate Judiciary Committee, and no slouch on constitutional issues. He doesn’t think the “individual mandate” – the requirement to purchase insurance – is constitutional either.  He talks about this potential intrusion of government into our personal lives here.

Ken Klukowski of the American Civil Rights Union doesn’t mince any words here.

We’ve been told that the individual mandate is the key to the economic viability of Obamacare. What happens if the mandate is struck down by the courts 3 years into the new healthcare regime?

This is one of those “life imitates art” posts. The quotes are real. The game show is where they belong.

Host: “And the answer is: The constitutional provision that allows Congress to mandate that individuals must purchase health insurance.”

Buzzer.  “Yes, Senator Leahy.”

Leahy: “We have plenty of authority. Are you saying there is no authority?”

Host: “No, I’m sorry. Not what we’re looking for here.”  Buzzer. “Yes, Speaker Pelosi?”

Pelosi: “Are you serious? Are you serious?”

Host: “No, I’m sorry. And yes, I’m serious.  Mr. Leahy, I see you have your hand up. You’ve already had your turn.”

Leahy: “Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that.”

Host: “You’re excellent at phrasing your answer in the form of a question. But you’re still not responsive.”

Pelosi: “I’ll have my assistant respond.”

Assistant: “That is not a serious question. That is not a serious question.”

Host: “Doesn’t anyone here want to answer using a constitutional provision?”

Leahy: “Where do we have the authority to set speed limits on federal highways?”

Host: “I give up.” To producer: Could we just re-air Kareem Abdul Jabbar?

UPDATE: The Washington Times has a much better analysis of this question than our elected representatives here. Exit question: Could the federal government force us to buy broccoli because it would theoretically affect healthcare insurance markets and, by extension, interstate commerce?

The McCreary County, Kentucky courthouse is back in the news. You might recall back in 2005 when the Supreme Court said “No” – in a 5-4 decision –  to the 10 Commandments posted in the McCreary County courthouse as part of a “Foundations of American Government” display. This decision upheld a lower court’s preliminary injunction ordering the County to remove the 10 Commandments because there was a “religious intent” when the County put them up. So the case went back to the 6th Circuit U.S. Court of Appeals on a motion to make the preliminary ruling permanent.

There’s a small problem, however. An identical display was posted in another Kentucky county courthouse and upheld by the same federal court. Why? Because in that situation there was no constitutionally offensive “religious intent” apparent in the county’s decision to post the display..

Two different counties, two different results, same display. Why is that a problem?

Because the law should make sense. The fact that two identical displays received different treatment based only on the subjective intent of the people who placed them there (which “intent” wouldn’t be apparent to, nor influence any observers of the display) is absurd, and the kind of legal schizophrenia that does not engender public trust in the judicial branch. The Supreme Court’s decisions over the years led to this craziness. The so-called “Lemon test” created by the Supreme court is the main culprit here, and long overdue for either a major overhaul or a complete heave-ho.

And if this case makes it back to the Supreme Court, the Alito-for-O’Connor replacement since the original McCreary decision could result in another  5-4 decision. But this time it could  favor McCreary County by allowing the Commandments to stay, and maybe even take up the task of overhauling  the “Lemon test.”  I can dream, can’t I?

A family court judge in Dallas has unwittingly provided us with a “teachable moment” as to: 1) What does a judicial activist look like? and 2) How does a Massachusetts gay “marriage” become a tool to undermine the traditional marriage policy of another state, say, like Texas? Here’s the answer to both questions.

The scenario is this: Two gay men living in Massachusetts were married in 2006 under that state’s judicially-imposed same-sex marriage scheme.  They later moved to Texas, then filed for divorce in a Texas family court. Apparently, the two men found it inconvenient to move back to Massachusetts and establish residency there so they could file for divorce where they could legally obtain it.

The Texas Attorney General intervened in the case to argue that the judge had no jurisdiction to even hear the case, since Texas doesn’t recognize gay marriage – the state has both a state marriage amendment and a statute defining marriage as between one woman and one man.  In other words – - you can’t grant a divorce to a “marriage” that doesn’t officially exist in Texas in the first place.

But Judge Tena Callahan thought perhaps it would be simpler to declare Texas’s marriage amendment and statute unconstitutional under the federal Constitution. Wow. As a family law judge, she probably doesn’t have the authority to address constitutional issues in the first place. What’s worse, she’s the first state judge anywhere to ever make such a ruling using the U.S. Constitution, rather than a state constitution.

The good news? Her decision will most likely get swatted down by the Texas Court of Appeals in the very near future.

A federal district court judge has rejected a constitutional challenge to a New Hampshire law that instructs teachers to lead students in the Pledge of Allegiance on a daily basis. The law makes it clear that student participation is voluntary, and students can opt out. Atheist Michael Newdow and the Freedom from Religion Foundation brought a challenge on the basis that reciting the Pledge, which includes the words “Under God,” amounts to a violation of the First Amendment’s Establishment clause.

Here’s why the Court said the Pledge is not a violation of the First Amendment:

“The Pledge of Allegiance is not a religious prayer, nor is it a ‘non-sectarian prayer’…, and its recitation in schools does not constitute a ‘religious exercise.’ The Pledge does not thank God. It does not ask God for a blessing, or for guidance. It does not address God in any way….Rather, the Pledge, in content and function, is a civic patriotic statement – an affirmation of adherence to the principles for which the Nation stands.”

I’m sure Newdow and FFRF will appeal to the 1st Circuit U.S. Court of Appeals. The 4th and 7th Circuits have already upheld the Pledge’s constitutionality. The liberal 9th Circuit, unsurprisingly, ruled against it a few years back, then had its decision thrown out by the Supreme Court on technical grounds. The 9th once again has a similar case before them, although they’ve let it sit for a couple years with no action.

The Supreme Court has hinted over the years that it thinks the Pledge is constitutional, although  they’ve never formalized that finding.

The New Hampshire federal judge’s opinion and order dismissing Newdow’s claims can be found here.

A pro-gay-marriage reader recently sent in the following comment after reading Jenny’s post about the Defense of Marriage Act:

I think DOMA sets a dangerous precedent regarding the 14th Amendment and the Full Faith and Credit Clause. What happens to the child of a married same-sex couple should that couple move from Massachusetts to Texas? Our Constitution calls for states to honor the “public acts, records, and judicial proceedings” of other states for precisely this reason.

Using children as a foil for the advancement of gay “marriage” is nothing new. In traditional-marriage states, we’ve seen legislation proposed and lawsuits brought by gay advocacy legal organizations over same-sex adoption, or demands for birth certificates with same-sex “couples” listed as “parent A” and “parent B”, custody and support disputes, etc. The public face on these efforts is that “it’s about the children” because if it was admitted by anyone that it’s really just incremental steps to achieve same-sex “marriage” in any given state, it would be rejected out of hand. So it’s no surprise to see someone (like our reader) attempt to argue that DOMA is anti-child.

But DOMA and the Full Faith and Credit Clause of the Constitution don’t say that states have to ignore the needs of children. DOMA simply allows states to resist being coerced into recognizing out-of-state marriages that would not be legal if performed within the state. And the FF&C clause has long been interpreted by the Supreme Court as allowing states with strong public policy reasons to reject conflicting “public acts, records and judicial proceedings” of other states.

In other words, we can protect traditional marriage AND protect kids. DOMA doesn’t force any state to choose between them.