Saturday, March 31, 2012

What a Lousy Week For the President

This week should have made President Obama wonder why he was running for a second term: he showed the Reverse Midas Touch on every issue he came near. His former aura of brilliance looked chipped and faded.

First, there was the open mic deal he attempted to negotiate with Russian President Medvedev. Aside from the merits, and the fact that it evoked the villain in a cheesy James Bond knock-off, there was the question of competence. How did this happen? How does someone who has been president for three years not consider that the mic might be hot? And his staff? It's not like he was making small talk with a Medal of Honor recipient: this was the puppet of a regime that would like to pay back the U.S. for ending their quest for world domination. Even given that Medvedev is the puppet rather than the puppeteer, one would have hoped for a little more care, a little more caution in dealing with him.

Second, there was the Obamacare argument at the Supreme Court. The SG's bumbling performance reflected badly on the president who appointed him. To be sure, The SG didn't have much to work with in terms of either law or facts. But still, the question of what Congress cannot do under the Commerce Clause -- the limiting principle -- was asked almost verbatim 20 years ago in the Lopez argument. The SG, and Obama, knew it was coming. They had two years to prepare. Nonetheless they were speechless.

Finally, gas prices continued their steady creep upward. Americans will be very conscious of this fact as they fill up the tank for Spring Break, those who are fortunate enough to have a job and a little money to drive someplace warm. What if Obama gets his wish and we get European prices? As Mitch Daniels pointed out, this is the one domestic goal in which Obama is succeeding. Imagine five more years of similar gas price increases. We would have Jimmy Carter-sized inflation. And we would see a change in population trends for Americans. Simply, put, we would have less children, like Europeans.

The first time I saw all those tiny cars in Europe, I was mystified. Then I realized: there are no mini- vans because their families are so much smaller than American families and because gas is so expensive. The toy cars are all they can afford, and subsequently all they need.

So as we gas up our mini-vans this week, let's consider this one domestic achievement of the Obama administration and hope that by the time Spring Break ends, the Republican primary will also have come to a close.

Tuesday, March 27, 2012

Today at the High Court, the Mandate Looked Fragile

The atmosphere at the Supreme Court this morning reminded me of the Kentucky Derby, only it took tow hours rather than two minutes. The Justices even drank (water, presumably) out of silver Julep cups!

Everyone was so excited to be there, regardless of which side they favored. The crowd outside was festive - even played the Black Eyed Peas.

Many of those who camped out to get tickets changed into court attire in the Supreme Court restrooms. A few others, including a bunch of Georgetown Law students, looked like they'd slept on the sidewalk but still relished their chance to see history.

There were many Senators, including Senate Republican Leader Mitch McConnell. Sen. John Kerry walked in and took a center seat just before the gavel pounded, the better to make sure we all knew he had arrived.

The caliber of advocacy varied. Paul Clement, for the 26 attorneys general, was outstanding. The Solicitor General, for the Obama administration, had a very rough start. He was visibly nervous and could never provide a limiting principle when pressed by the conservative justices.

After the first hour, it was clear that the individual mandate was in trouble.

Much has been said about Justice Kennedy as the swing vote. His questions and comments today suggested that unless he changes his mind in conference, he will vote to strike down the statute. That is perfectly consistent with his jurisprudence.

Before the argument, I was more worried about Justice Scalia, who takes a broad view of the necessary and proper clause. What a relief, therefore, to see Justice Scalia pounce on the S.G. from the get to.

The liberal justices tried their hardest to help out the government. The effort was neither pretty nor effective.

Justice Thomas asked no questions, but that his his style. He did, at one point when Wickard was mentioned, reach for an amicus brief and start paging through it. Maybe Sen Paul's amicus brief?


Here are some pictures outside of the Supreme Court. We'll have a full rundown of the events in the coming hours.

Monday, March 26, 2012

Sex Week at Harvard Law

Back in the day, we didn't have an official Sex Week.  The Harvard chapter of Law Students for Reproductive Justice(LSRJ) is helping to coordinate the week-long activities.  That's the Harvard equivalent of the Georgetown Law organization to which Sandra Fluke belongs.

One such event is promoted,  “Join HLSRJ and Good Vibrations for a short discussion of sex-positivity, a demo of lube and some popular sex toys, then Q&A. Free Food!”

I couldn't make this up.

All I can say is the next time the HLS Placement Office asks me if I would like to serve as a mentor or house an intern, I'm gonna think twice.

H/t:  Instapundit

Saturday, March 24, 2012

McConnell Gives GOP Weekly Address on Obamacare Anniversary

Senate Republican Leader Mitch McConnell gives this week's Republican address on a theme he has been relentless about the last several days:  the second anniversary of Obamacare.  Click here for video.

McConnell's address is similar to op-eds he wrote for the C-J and NRO, and similar to speeches and news conferences he's given recently.  What is distinctive, however, is his determination to see Obamacare either struck down as unconstitutional -- or repealed. McConnell is on a mission, plain and simple. Make no mistake:  if McConnell becomes majority leader, he will see this thing repealed (if the Supreme Court hasn't disposed of it in the mean time.).

Note that while McConnell has been all over the news in recent days regarding the anniversary of Obamacare, the Obama administration itself has been strangely silent.  As McConnell asked yesterday, where's the birthday cake, Mr. President?

Friday, March 23, 2012

The Terrible Twos: McConnell on Obamacare Anniversary

Senate Republican Leader Mitch McConnell is marking the two year anniversary with Obamacare with a full-court press, including a news conference (rare for a Friday, when the Leader travels home to Louisville) and and op-ed in National Review Online.  The NRO piece is worth reading in its entirety, but in case you don't have time, here are a few highlights.

McConnell's op-ed makes the point that Obamacare is even worse than most of us had feared.  Therefore, Republicans are even more committed to repealing it -- if the Supreme Court doesn't strike it down.

On Team Obama's political strategy regarding Obamacare, McConnell notes, "Time and again, the president and his allies have arrogantly presumed that a public that has largely opposed Obamacare from the start would either come to like it or forget about it over time. Their hopes never materialized."  Instead, public opposition to Obamacare remains high; three-fourths of Americans believe that the individual mandate is unconstitutional.

Republicans acknowledge that health care requires common-sense, market-based reform and are therefore prepared to replace Obamacare with a conservative alternative:

 Among other problems were the rising cost of health care to private and public payers, the exposure of too many families to potentially catastrophic health-care costs, and the lack of coverage for millions of Americans
Yet rather than solving the most pressing problems in the old system, Obamacare has made many of these problems far worse. Costs and premiums are rising, Medicare has been weakened, states now struggle to keep pace with even costlier federal mandates, and the economy is being sapped as new mandates dissuade employers from creating new jobs.

Obamacare has screwed up Medicare, saddling states with unfunded (and unconstitutional mandates) that states cannot afford and that will jeopardize the quality of care our seniors receive:

States face their own challenges. Many couldn’t afford federal health-care mandates before Obamacare mandated dramatic increases in Medicaid rolls — and the costs to pay for it. Needless to say, even if states are able to meet the costs of covering as many as 25 million more Medicaid patients, the quality of the care for those who rely on Medicaid would almost certainly suffer.

The president may be able to boast that more people have coverage. But states, which will have to shoulder the costs, won’t be applauding.

Nor will America’s seniors, millions of whom now know from bitter experience that the president wasn’t speaking to them when he vowed that, under Obamacare, “if you like the plan you have you can keep it.” Since then, millions who have and like Medicare Advantage have learned it won’t necessarily be there for them anymore.

McConnell also hits upon the key distinction between conservatives and liberals. Conservatives trust in the innate wisdom of the citizenry; they believe that individuals have the common sense and responsibility to take care of themselves; the little people are not stupid, and don't need the government to run their lives or spend their money for them. Democrats, in contrast, think that the poor fools in the flyover states need to be saved from themselves by the enlightened progressives:

 most Americans understood from the start that the president’s claims about this plan simply weren’t credible. Chief among them was his insistence that it wouldn’t add a dime to the deficit. Americans aren’t stupid. They know that a government entitlement is about as likely to pay for itself as, well, a government entitlement.

McConnell clearly lays out the differences between the the two parties on this critical issue of  health care. It is imperative that Republicans elect enough senators to give McConnell a majority so that if the Supreme Court fails in its task, the Senate can repeal this monstrosity.

Wednesday, March 21, 2012

Sen. Paul Responds to SCOTUS Property Rights Decision

Sen. Rand Paul's focus on property rights -- and the EPA's assault on those rights -- is reflected in his press release today on The Supreme Court's opinion in Sackett v. EPA.  In that opinion, the high court (9-0) "provided some measure of relief to those who wish to challenge the heavy-handed enforcement of an out-of-control Environmental Protection Agency,"  according to Paul.

Paul, through his release, notes:

From this point forward, citizens like the Sacketts will be able to challenge the EPA in court before huge fines and other actions are levied against them,” Sen. Paul said. “This sends a resounding message to the Administration that ever-expanding bureaucracy and regulations cannot continue to go unchecked. I will continue to fight to rein in the EPA, and today’s decision is heartening that we will succeed.”

The court did not however take a stand against the larger abuses of the EPA. Rather, in a concurring opinion, Justice Samuel Alito specifically called on Congress to fix the law and clarify the definition of navigable waters, stating that “only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

Paul's take on Sackett echos some thoughts he gave the Louisville Lawyers' Chapter of the Federalist Society last month.  Paul complained that the EPA has made it impossible form miners to comply with the Clean Water Act, by asserting that intermittent rain run-off is a navigable stream for purposes of the Clean Water Act.  Likewise, Kentucky businesses have been subjected to the Clean Water Act for rain fun-off from the roof of small businesses.  That makes no sense, Paul said, and is not within Congress's authority to regulate.

Even though today's decision is largely procedural, Paul's focus on property rights is well-placed.  The right to own and develop property is a core freedom in a democracy, going back to the Magna Carta. It's what distinguishes us from serfs. Indeed, much of the intellectual energy that led to our nation's founding stems from the writings of John Locke regarding property rights.  So this is an area of law and public policy that constitutional conservatives should monitor closely.

Thursday, March 15, 2012

Dems Resort to Violence Against Women Act, Again

Democrats have so enjoyed the Sandra Fluke saga that they are trotting out another wedge issue to illustrate the supposed Republican War on Women. Sen. Charles Schumer will be invoking the Violence Against Women Act as an example of how much Dems care for those of us inclined to the vapors.

Take this from the perspective of someone who has represented dozens of victims of domestic violence:  we do not need a Violence Against Women Act. That statute was Joe Biden's mash note to the feminist lobby.  It is unnecessary and wasteful.

To be sure, domestic violence is horrific.  I have represented clients who have been kicked in the stomach while eight months pregnant, strangled until they passed out, thrown down stair cases and subjected to death threats.  There is no question that a just society must apprehend and punish those who engage in such violence, where it can be proven.

Most of my domestic violence clients have been women.  Most, but not all. Yet what makes such conduct reprehensible, however, is not that it is directed against women; it is equally wrong to strangle a man until he passes out.  It is the nature of the act, not the gender of the victim, that warrants judicial intervention.

Nor is this a federal problem.  The Constitution vests the states with the police power. This is not a problem that implicates interstate commerce; there is no constitutional basis for the federalization of crimes involving violence against women (or against men, for that matter).

Women, like men, need jobs.  Women, like men, need to be able to fill their cars for less than $ 100 a tank.  The commonality in all of my domestic violence cases has been poverty.  The stress that it places on relationships and families causes untold tragedy.  That's why we need a president who can restore the economy to one that gives Americans a realistic prospect that the future can be better.

Democrats want to talk about the Violence Against Women Act to deflect the damage that they have done families through their mishandling of our economy.  It is a ruse that women should reject.

Wednesday, March 14, 2012

Sen. Santorum Discovers Tea!

Rick Santorum's latest email blast shows that he is trying to style himself as the Tea Party candidate -- apparently oblivious to the fact that Ron Paul is still in the race.

Touting his wins in the Deep South, Santorum begins his email, "Dear Patriot".  Classic Tea Party.  And he goes on to talk about taking our "country and our party back."  That sounds an awful lot like Sen. Rand Paul's tag line when he ran for Senate. ("I have a message, a message from the Tea Party. We've come to take our country back."

The there's the signature:  "For America."

All Santorum needs to do now is to lose the sweater-vest and don an tri-corner hat.

It feels a little disingenuous for a guy who endorsed Arlen Specter. I thought we were trying to take our party and  our country back from the Arlen Specters of D.C., not give it to them.

Tea Party Caucus to Propose Medicare Reform

Tomorrow those  senators who comprise the Tea Party Caucus -- Rand Paul, Mike Lee and Jim DeMint -- plus Lindsay Graham will unveil a plan to reform medicare.

Based on previous comments, I expect it to grandfather those approaching retirement age. (Forgive the verb choice; it is not a pun!) For everyone else, look for the qualification age to be pushed back to reflect longer life expectancy.  And look for means testing for those in upper income brackets. 

It's good to see that the Tea Party is still focusing on trying to reform entitlements, while everyone else seems to be in a stupor over the Republican primary.

Interesting to see Lindsay Graham in this line up. 

Wednesday, March 7, 2012

Sen. Rand Paul Proposes Budget Tomorrow

It has been more than 1,000 days since the Democratic-controlled Senate has passed a budget.  That's longer than the Siege of Leningrad, and Sen. Rand Paul has had enough.

Tomorrow, Paul will propose: his FY2013 budget, "A Platform to Revitalize America."

Note the use of the word "Platform."  It evokes a presidential bid, perhaps deliberately so. 

Paul's platform will include a plan to balance the budget in 5 years.  He also calls for passage of the REINS Act, which would require that major executive branch regulations be subject to approval by Congress. That would certainly slow down the growth of the regulatory state and shake up lobbying and lawyering under the Administrative Procedure Act.

Paul's staff has been promoting this event for several days, and will include a blogger call as well as a press conference.  This is a well-orchestrated event.

Paul will be joined by by Sens. Jim DeMint (R-SC) and Mike Lee (R-UT) -- the Senate Tea Party Caucus.

In addition to the budget, Paul will discuss energy policy. Paul will call for more domestic exploration and drilling, in contrast to the Obama administration policies -- a contributing factor to the $6 a gallon gas now selling in California.

Thursday, March 1, 2012

Andrew Breitbart

Andrew Breitbart is dead at age 43. He died suddenly, early this morning of natural causes.

We have lost a great patriot. Andrew loved liberty and he was willing to fight for it. He challenged us to speak the truth -- boldly, clearly and as often as it takes to keep America exceptional.

This is a huge loss not only for the conservative cause, but for our country.

The best way that we can honor his memory is for each of us, in our own way, step up.