WSJ on the debate on Gun Control

Taranto hits the nail on the head...again. Read the original here.


OK, Let's Debate Gun Control!
A second Obama term could kill the Second Amendment.
By JAMES TARANTO

WSJ BEST OF THE WEB TODAY
Updated July 23, 2012, 4:05 p.m. ET 

Last week's horrific crime in Aurora, Colo., has, predictably enough, prompted many leftist politicians and commentators to call for more antigun laws. Actually, that's not quite right. Rather than directly call for more antigun laws, some of them are complaining about the absence of a debate over gun control. Where's the "searching conversation over what rational steps can be taken by individuals, communities and various levels of government to make the recurrence of a comparable tragedy less likely"? the Washington Post's E.J. Dionnewants to know.

"Where a gun massacre is concerned," Dionne writes, "an absolute and total gag rule is imposed on any thinking beyond the immediate circumstances of the catastrophe." It doesn't seem to occur to him that this assertion is self-refuting. If "an absolute and total gag rule" were actually in effect, it would prevent Dionne from saying so.

When people find it necessary to demand a "debate" or complain about the absence of same, it usually means they're frustrated because there is a debate and their side is losing. Sure enough, Dionne's complaint is that those who disagree with him--whom he labels "the gun lobby," "worshipers of weapons" and adherents to "the theology of firearms"--make their case far more effectively than his side does. "The rest of us," he whines, suffer from a "profound timidity," as a result of which they "allow" their opponents' arguments "to work every time."

Dionne is claiming that those on his side have good arguments but fail to advance them because they have poor character. That may be true, especially the part about poor character, but it's still an odd thing to say.

But anyway, by all means let's debate gun control! The Associated Press's Steven Hurst begins a dispatch on the subject by "reporting" that "controlling access to guns would appear, on its face, the simple answer to preventing public massacres like the movie-theatre tragedy in Colorado." He does not reveal the source of this information, but we'll bet it was an exclusive interview with the Associated Press's Steven Hurst.

New York's Mayor Michael Bloomberg, who governs a city some 1,800 miles from Aurora, demanded to know what President Obama and Mitt Romney are "going to do about" making it "harder to get guns." Bloomberg asserted that lawmakers "have been cowed by a handful of advocates who think that the right to bear arms allows you to go out and kill people at random." It is unlikely that anybody actually holds the position that Bloomberg ascribes to his opponents.

The president got into the act too. He "condemned U.S. gun laws as 'mistaken' and urged Washington to review them after a shooter killed 12 people and injured more than 50 others at a U.S. movie theater on Friday,"Reuters reports, quoting his tweet: "Because of the Aurora, Colorado tragedy, the American Congress must review its mistaken legislation on guns. It's doing damage to us all."

Oh, we should specify that was Felipe Calderon, president of Mexico. We'll get to what President Obama said in due course.

Now, there's a very good reason why coastal elites' arguments for gun control fall on deaf ears in most of Middle America. Those who value the Second Amendment suspect that people like Dionne and Bloomberg advocate "reasonable" gun restrictions as a camel's nose to a total or near-total ban on private ownership of firearms and their use for self-defense.

This suspicion is entirely justified. At his press conference, for instance, Bloomberg professed to believe that "there's nothing wrong with you having a gun. . . . If you comply with the law you will have responsible people who know the danger that a weapon or the responsibility that somebody who has a weapon in their hands has."

Well, this columnist lives in Bloomberg's New York, and we would like to own a pistol. But our understanding is that the procedures for acquiring a permit are so onerous that it isn't worth our while to apply. In more than a decade as mayor, Bloomberg has never sought to relax the city's gun restrictions, which are among the nation's most oppressive. He has always pushed in the other direction, demanding loudly if ineffectually that the rest of the country make its laws more like New York's. His actions give every reason to think his claims to respect gun rights are in bad faith.

A New York Times editorial makes similarly disingenuous concessions but carelessly lets the mask slip at the end. The editorialists allow that "many perfectly reasonable people" (though not they themselves) are of the view that the Second Amendment "gives each individual the right to bear arms." They pretend to seek a reasonable middle ground: "The country needs laws that allow gun ownership, but laws that also control their sale and use in careful ways."

The editorial concludes by quoting Rep. Louie Gohmert of Texas: "It does make me wonder, you know, with all those people in the theater, was there nobody that was carrying? That could have stopped this guy more quickly?" To which the Times responds: "That sort of call to vigilante justice is sadly too familiar, and it may be the single most dangerous idea in the debate over gun ownership."

The answer to Gohmert's question is that the chain that owns the theater where the massacre took place has a no-weapons policy, which oddly enough did not deter the shooter any more than Colorado's strict laws against murder did.

But what gives away the game is the Times's characterization of Gohmert's musing as a "call to vigilante justice." To see why that is not just mistaken but pernicious, let's consider the story of another shooting in Aurora.

On April 22, Denver's KCNC-TV reports, a man ran into an Aurora church "and told people to take cover." The pastor's mother "came out of the church to see what was happening in the parking lot and got shot." She was killed, but further carnage was averted because "an off-duty [police] officer was at a service and went outside and shot the man who shot the woman." The officer, a cousin of the pastor, was unhurt, but the suspect later died.

Now, the Times might find this acceptable because the man who shot the murderer was not a "vigilante" but a law-enforcement officer with a (presumably) government-issued gun. But the crucial point is that the shooting was not an act of "justice," which is to say that it was not punitive. If the killer had dropped his weapon, held up his hands, and surrendered to the cop, shooting him would have been an act of murder. Even if he arguably deserved to die, he also has a right to due process of law.

The policeman shot him because there was an immediate danger that he would wound or kill more innocent people. It was an act of defense, not justice. Vigilante justice is contrary to the rule of law, but self-defense is an essential part of it. If the latter is indistinguishable from the former, as the Times claims, then individual self-defense is never justified. To put it another way, the Times editorialists claim not merely that guns in the hands of law-abiding citizens are dangerous but that it is wrong in principle to save innocent lives by stopping a mass murder in progress.

Does President Obama agree with this extreme and un-American position? He professes not to. "The White House signaled [yesterday] that President Obama . . . did not intend to make a push for stricter gun controls," reports ABC's Jake Tapper, Press secretary Jay Carney says the president stands by "the op-ed that was published in an Arizona newspaper."

That would be Tucson's Daily Star, in which the following assertion appeared under the president's byline in March 2011: "Like the majority of Americans, I believe that the Second Amendment guarantees an individual right to bear arms. And the courts have settled that as the law of the land."

Is that a sincere expression of Obama's views? If you believe it is, we have a bridge we'd like to sell you. (Disclosure: We didn't build that.) After all, this is the man who in 2008, when he thought only his snotty and well-heeled San Francisco supporters were listening, said of Middle Americans: "It's not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations."

To be sure, the political exigencies are such that Obama's true feelings may not matter. As Politico notes: "The gun control caucus in Congress is increasingly urban, liberal and shrinking. . . . The handful of bills introduced this Congress that would tighten gun restrictions have languished, with a Republican majority in the House. No gun-control bills have cleared the Democratic-controlled Senate, either."

New federal gun-control legislation is highly unlikely to be enacted even if Obama is re-elected. None passed Congress in 2009-10, when Democrats had a filibuster-proof 60-seat majority in the Senate. It's virtually impossible the Dems will reach 60 seats anytime before 2017.

But there's a third branch of government, and it is the reason why a second Obama term could prove deadly to the Second Amendment. Obama's professions of support for the right to keep and bear arms sounds awfully familiar. They sound, in fact, a lot like this: "Like you, I understand that how important the right to bear arms is to many, many Americans. . . . I understand the individual right fully that the Supreme Court recognized in Heller."

That was Sonia Sotomayor, Obama's first appointee to the Supreme Court, answering a question at her 2009 confirmation hearing from Sen. Patrick Leahy of Vermont, chairman of the Judiciary Committee. She was referring to District of Columbia v. Heller, which astonishingly was the first Supreme Court decision ever to recognize this fundamental right. Sotomayor's statement was a careful one. She did not say that she agreed with Heller or even that she would respect it as precedent. She could easily turn out to "understand" it and wish to wipe it from the books.

And she did. In 2010 the court decided McDonald v. Chicago, which applied the "incorporation" doctrine to the Second Amendment--that is, it held that the amendment, coupled with the 14th, forbids states as well as the feds from encroaching on the right to keep and bear arms. Sotomayor (along with Justice Ruth Bader Ginsburg) joined Justice Stephen Breyer's dissent, which flatly asserted: "The Framers did not write the Second Amendment in order to protect a private right of armed self-defense."

McDonald, like Heller, was decided 5-4. One of the dissenters, Justice John Paul Stevens, has since retired from the court. His successor, Justice Elena Kagan, has not yet had occasion to cast a vote in a gun-rights case (and as solicitor general she did not file a brief in McDonald). But we are going to go out on a limb and guess that she agrees with Ginsburg, Breyer and Sotomayor that the Second Amendment is essentially a nullity.

If that is correct, then the court is one vote away from having a majority to reverse Heller. Two of the justices in the pro-Second Amendment majority, Antonin Scalia and Anthony Kennedy, will be 80 by the end of the next presidential term. If either or both of them were to leave the court during a second Obama term, it is far likelier than not that an Obama appointee would join what is now the minority to kill the Second Amendment.

Ginsburg and Breyer are also in their 70s. If Romney were to replace one or both of them, it is likely that the right to keep and bear arms would be secure, backed by a 6-3 or 7-2 majority.

So by all means, let's have a vigorous debate about gun control and the Constitution. But it's not too much to ask of President Obama that in describing his own views on the subject and the consequences of re-electing him, he be at least as honest as the New York Times editorial page.

Podcast: James Taranto on gun control.

Krauthammer on POTUS v. SCOTUS

As always, an interesting read from Charles Krauthammer. Read the original here.

Obama v. SCOTUS

The Washington Post
By Charles Krauthammer

Published: April 5

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

— Barack Obama, on the constitutional challenge to his health-care law, April 2

“Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.

In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.

With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.

Obamacare passed the Congress without a single vote from the opposition party — in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.

The president’s preemptive attack on the court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.

Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the commerce clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What, then, is the limiting principle?

Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.

Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, Congress is omnipotent, authorized by the commerce clause to regulate “every human activity from cradle to grave.”

Q.E.D.

Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lock-step support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.

As was Rep. Phil Hare (D-Ill.). As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by the more constitutionally attuned owner of an East Moline pizza shop.

letters@charleskrauthammer.com

This does not make me feel warm and fuzzy...

I don't like it when:
1. Government quietly diverts large sums of money.
2. They do it outside the normal appropriations process. It's the normal appropriations process for a reason.
3. They do it to enforce policies that, are at this very moment, up for debate on whether the Supreme Court will rule it unconstitutional. At least wait until the Court decides whether it is valid or not.

Read the original here.

White House has diverted $500M to IRS to implement healthcare law
By Sam Baker - 04/09/12 05:15 AM ET
TheHill.com

The Obama administration is quietly diverting roughly $500 million to the IRS to help implement the president’s healthcare law.

The money is only part of the IRS’s total implementation spending, and it is being provided outside the normal appropriations process. The tax agency is responsible for several key provisions of the new law, including the unpopular individual mandate.

Republican lawmakers have tried to cut off funding to implement the healthcare law, at least until after the Supreme Court decides whether to strike it down. That ruling is expected by June, and oral arguments last week indicated the justices might well overturn at least the individual mandate, if not the whole law.

“While President Obama and his Senate allies continue to spend more tax dollars implementing an unpopular and unworkable law that may very well be struck down as unconstitutional in a matter of months, I’ll continue to stand with the American people who want to repeal this law and replace it with something that will actually address the cost of healthcare,” said Rep. Denny Rehberg (R-Mont.), who chairs the House Appropriations subcommittee for healthcare and is in a closely contested Senate race this year.

The Obama administration has plowed ahead despite the legal and political challenges.

It has moved aggressively to get important policies in place. And, according to a review of budget documents and figures provided by congressional staff, the administration is also burning through implementation funding provided in the healthcare law.

The law contains dozens of targeted appropriations to implement specific provisions. It also gave the Department of Health and Human Services (HHS) a $1 billion implementation fund, to use as it sees fit. Republicans have called it a “slush fund.”

HHS plans to drain the entire fund by September — before the presidential election, and more than a year before most of the healthcare law takes effect. Roughly half of that money will ultimately go to the IRS.

HHS has transferred almost $200 million to the IRS over the past two years and plans to transfer more than $300 million this year, according to figures provided by a congressional aide.

The Government Accountability Office has said the transfers are perfectly legal and consistent with how agencies have used general implementation funds in the past. The $1 billion fund was set aside for “federal” implementation activities, the GAO said, and can therefore be used by any agency — not just HHS, where the money is housed.

Still, significant transfers to the IRS and other agencies leave less money for HHS, and the department needs to draw on the $1 billion fund for some of its biggest tasks.

The healthcare law directs HHS to set up a federal insurance exchange — a new marketplace for individuals and small businesses to buy coverage — in any state that doesn’t establish its own. But it didn’t provide any money for the federal exchange, forcing HHS to cobble together funding by using some of the $1 billion fund and steering money away from other accounts.

The transfers also allow the IRS to make the healthcare law a smaller part of its public budget figures. For example, the tax agency requested $8 million next year to implement the individual mandate, and said the money would not pay for any new employees.

An IRS spokeswoman would not say how much money has been spent so far implementing the individual mandate.

Republicans charged during the legislative debate over healthcare that the IRS would be hiring hundreds of new agents to enforce the mandate and throwing people in jail because they don’t have insurance.

However, the mandate is just one part of the IRS’s responsibilities.

The healthcare law includes a slew of new taxes and fees, some of which are already in effect. The tax agency wants to hire more than 300 new employees next year to cover those tax changes, such as the new fees on drug companies and insurance policies.

The IRS will also administer the most expensive piece of the new law — subsidies to help low-income people pay for insurance, which are structured as tax credits. The agency asked Congress to fund another 537 new employees dedicated to administering the new subsidies.

The Republican-led House last year passed an amendment, 246-182, sponsored by Rep. Jo Ann Emerson (R-Mo.) that would have prevented the IRS from hiring new personnel or initiating any other measures to mandate that people purchase health insurance. The measure, strongly opposed by the Obama administration, was subsequently dropped from a larger bill that averted a government shutdown.

POTUS points out that Supreme Court is unelected...

...and he should know since he appointed one of them. This is just tacky politicking to me. But maybe I'm just being bitter. Read the original here.

Combative Obama warns Supreme Court on health law
by Stephen Collinson | AFP – 13 hours ago

US President Barack Obama on Monday challenged the "unelected" Supreme Court not to take the "extraordinary" and "unprecedented" step of overturning his landmark health reform law.

Though Obama said he was confident the court would uphold the law, the centerpiece of his political legacy, he appeared to be previewing campaign trail arguments should the nine justices strike the legislation down.

In a highly combative salvo, Obama also staunchly defended the anchor of the law -- a requirement that all Americans buy health insurance -- as key to giving millions of people access to treatment for the first time.

"Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said.

Pointed comments from Supreme Court justices last week during three days of compelling hearings have convinced many commentators that the court, expected to rule in June, will declare the law, dubbed ObamaCare, unconstitutional.

Such a move would electrify the White House race, puncture Obama's claims to be a reformer in the grand political tradition, and throw the US health care industry into chaos.

Obama noted that for years, conservatives had been arguing that the "unelected" Supreme Court should not adopt an activist approach by making rather than interpreting law, and held up the health legislation as an example.

"I am pretty confident that this court will recognize that and not take that step," Obama said during a press conference in the White House Rose Garden with the leaders of Canada and Mexico in his first comments on last week's hearings.

Obama's comments will be seen as a warning shot to the court, one of the three branches of the US government, and could draw complaints from critics that he is trying to influence the deliberations.

The health care case is the most closely watched Supreme Court deliberation since a divided bench handed the 2000 presidential election to George W. Bush over Al Gore, and could have far reaching political implications.

Obama also argued there was a "human element" to the health care battle, as well as legal and political dimensions.

He said that without the law, passed after a fierce battle with Republicans in 2010, several million children would not have health care, and millions more adults with pre-existing conditions would also be deprived of treatment.

Opponents of the health care law argue that the government has overreached its powers by requiring all Americans to purchase health insurance.

But supporters say that the government is within its rights to regulate the health industry as it has the power to oversee commerce across state borders.

Without the mandate, they say, the costs of insuring an extra 32 million Americans would be prohibitive to the private health insurance industry.

The Affordable Care Act is highly polarizing in US politics as the election approaches and Obama is yet to get a political dividend for the huge expenditure of political capital required to pass the legislation.

If the court upholds the law, and he wins reelection in November, the legislation will likely stand for years, as it will be fully implemented by 2014, two years before his second term draws to a close.

But Republicans running to replace him in the November 6 election have all vowed to repeal ObamaCare.

"I think it's important... to remind people that this is not an abstract argument," Obama said.

"The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it.

"There are tens of thousands of adults with preexisting conditions who have health care right now because of this law."

What are the qualifications of a Constitutional Law professor?

Because I'm seriously wondering what President Obama's understanding of constitutional law is. And, also, what the definition of judicial activism is. And what the jurisdiction of the US Supreme Court is. And what the 'stare decisis' is. I think he's doing it wrong... I'm also uncomfortable with his political pot shots against the Court itself. It seems...rude.  Read the original here.

Obama takes a shot at Supreme Court over healthcare
By Jeff Mason
WASHINGTON | Mon Apr 2, 2012 6:45pm EDT

WASHINGTON (Reuters) - President Barack Obama took an opening shot at conservative justices on the Supreme Court on Monday, warning that a rejection of his sweeping healthcare law would be an act of "judicial activism" that Republicans say they abhor.

Obama, a Democrat, had not commented publicly on the Supreme Court's deliberations since it heard arguments for and against the healthcare law last week.

Known as the "Affordable Care Act" or "Obamacare," the measure to expand health insurance for millions of Americans is considered Obama's signature domestic policy achievement.

A rejection by the court would be a big blow to Obama going into the November 6 presidential election.

Republican presidential candidates, who are vying to take on Obama in November elections, have promised to repeal the law if one of them wins the White House.

Obama's advisers say they have not prepared contingency plans if the measure fails. But the president -- who expressed confidence that the court would uphold the law -- made clear how he would address it on the campaign trail if the court strikes it down.

"Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said at a news conference with the leaders of Canada and Mexico.

Conservative leaders say the law, which once fully implemented will require Americans to have health insurance or pay a penalty, was an overreach by Obama and the Congress that passed it.

The president sought to turn that argument around, calling a potential rejection by the court an overreach of its own.

"And I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," Obama said.

"Well, this is a good example, and I'm pretty confident that this court will recognize that and not take that step," he said.

POLITICAL DEBATE

The Supreme Court justices are expected to issue decisions in the dispute by late June, a time when the presidential campaign season is likely to be in full swing.

"It's not that common for presidents to get into direct verbal confrontations with the Supreme Court," said Georgetown University law professor Louis Michael Seidman. "But it's also not that common for the Supreme Court to threaten to override one of the president's central legislative accomplishments."

A spokeswoman for the court declined to comment on Obama's remarks.

A spokeswoman for Mitt Romney, the front-runner for the Republican presidential nomination, took issue with Obama's preemptive strike and his use of the word "unprecedented."

"What was ‘unprecedented' was the partisan process President Obama used to shove this unconstitutional bill through despite the overwhelming objections from Americans across the country," said Romney spokeswoman Andrea Saul.

"Even if the law is upheld, Governor Romney will begin the process of repealing it on Day One in office."

Romney shepherded healthcare reform through the state of Massachusetts when he was governor there. Democrats note that Romney's law was an inspiration for Obama's.

The president, who once taught constitutional law at the University of Chicago, said the "individual mandate" that requires most people to buy insurance was critical to the success of the healthcare overhaul.

The Supreme Court is looking at whether Congress exceeded its power to regulate commerce in U.S. states with that mandate.

"I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care," Obama said.

"So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate."

(Additional reporting by Joan Biskupic, Tabassum Zakaria, Samson Reiny, and Steve Holland. Editing by Christopher Wilson)

Obamacare gets new adjectives

Has anyone else noticed that the administration likes adjectives? First it was "overseas contingency operations". Oh wait, I mean war. Now this. Read the original here.

WHITE HOUSE TRIES TO REBRAND MANDATE
EARNEST CALLS GOVERNMENT MANDATE 'PERSONAL RESPONSIBILITY CLAUSE'
BY: Bill McMorris - March 28, 2012 3:25 pm
Washington Free Beacon

The Obama administration is now referring to Obamacare as a “bi-partisan bill” and calling the unpopular individual mandate “a Republican idea,” following three days of tough questioning by the Supreme Court.

“The Affordable Care Act is a bipartisan plan and one that we think is constitutional,” Deputy White House press Secretary Josh Earnest told reporters on Wednesday afternoon.

He also referred to the individual mandate as the “individual responsibility” clause of the bill, in an attempt to distance the administration from the term individual mandate.

“The administration remains confident that the Affordable Care Act is constitutional; one of the reasons for that is that the original personal responsibility clause…was a conservative idea,” he said.

Conservatives have blasted the administration for the individual mandate and only one Republican voted for Obamacare in both houses of the legislature.

Earnest deflected questions about the future of the law and Solicitor General Donald Verrilli. Many analysts have said that the court is likely to overturn Obama’s signature law after conservative members of the court, as well as Obama appointee Justice Sonia Sotomayor, bombarded Verilli with blistering questions over the mandate.

“There have been lower court cases where conservative judges have posed difficult, tough questions to Department of Justice lawyers … and conservative judges, who posed tough questions ended up upholding the Affordable Care Act,” he said.

Some also questioned the Verrilli’s performance, as he stumbled and coughed at times in defending the bill on Tuesday. Earnest defended the attorney.

“He’s one of the brightest legal minds in Washington, D.C.,” he said. “He gave a very solid performance before the Supreme Court, that’s just a fact.”

The spokesman did not know if President Obama had listened to trial transcripts, as he was flying back from Seoul, South Korea. He repeatedly said that the administration is not preparing contingency plans if Obamacare is struck down.

“We are focused on implementing all of the provisions of the law because they are important benefits,” he said, adding “we’re not, no,” when reporters asked again if alternative strategies are being considered.

“If there’s a reason or a need to consider contingencies down the line, then we will.”

The Heritage Foundation has been credited with introducing the concept of the individual mandate during the debate over Hillary Clinton’s healthcare reform almost 20 years ago, but has since come to oppose it. It is not the only group that has changed sides on the issue: Obama slammed then-rival Hillary Clinton over the mandate on the campaign trail.

“We still don’t know how Sen. Clinton intends to enforce a mandate … you can have a situation, which we are seeing right now in the state of Massachusetts, where people are being fined for not having purchased health care but choose to accept the fine because they still can’t afford it, even with the subsidies,” Obama said. “They are then worse off: They then have no health care, and are paying a fine above and beyond that.”

The mandate helped Obama win favor among the healthcare industry, which donated$2.3 million to his 2008 campaign. His fundraising among the healthcare industry has not slowed in 2012, with Obama raking in more than $360,000 from drug makers.

The Supreme Court finished its final day of hearings concerning Obamacare today, with arguments focused on whether a rejection of the individual mandate would invalidate the entire law.

The court is expected to issue a ruling in June.

Legally, who has the authority to send the US to war?

Here's an exchange in congressional testimony between Sen. Sessions and SecDef Panetta.  I learned in Government class, that only Congress has the authority to declare war.  I know that has gotten muddy with the advent of the military action by Executive Order, but I don't recall anywhere that we have to get permission from the rest of the world in order to do anything.  Am I surprised that apparently, this is the new "precedent" under this administration.  Not so much.  Here's the exchange:


Senator Jeff Sessions (R):
Do you think you can act without Congress and act, and initiate a no-fly zone in Syria? Without Congressional approval?


Secretary of Defense Leon Panetta:
Again, our goal would be to uh, to seek international permission and we, and we would come to the Congress and inform  you and determine how best to approach and whether or not we would want to get permission from the Congress, I think those are issues we would have to discuss as we decide what to do here.


Senator Jeff Sessions (R):
Well, I'm almost breathless about that.  Because what I heard you say is we're going to seek international approval and then you will come and tell the Congress what we might do.  And we might seek Congressional approval.  


Secretary of Defense Leon Panetta:
Well-


Senator Jeff Sessions (R):
Now, I want to say to you, that's a big dis-, wouldn't you agree? You've served in the congress...


Secretary of Defense Leon Panetta:
Yeah-


Senator Jeff Sessions (R):
Wouldn't you agree? That that's...uh...would be pretty breathtaking to the average americans?  So, would you like to clarify that?


Secretary of Defense Leon Panetta:
<Stutter and stammer> You know, I've also served with Republican presidents and Democratic presidents, who have always reserved the right to defend this country if necessary.


Senator Jeff Sessions (R):
But before you do this, you would seek permission from the international authorities...?


Secretary of Defense Leon Panetta:
If we're working with an international coalition, and we're working with NATO...we would want to be able to, be able to get appropriate permissions in order to be able to do that. That's something that all of these countries would want to have some legal basis on which to act. 


Senator Jeff Sessions (R):
What legal basis are you looking for?  What, what entity?


Secretary of Defense Leon Panetta:
Well, obviously the UN, if NATO made the decision to go in, that would be one...if we, if we developed an international coalition beyond NATO, then oviously some kind of UN security resolution.


Senator Jeff Sessions (R):
So you're saying that NATO would give you a legal basis? And an ad-hoc coalition of nations would provide a legal basis?


Secretary of Defense Leon Panetta:
If we were able to put together a coalition...and we're able to move together, then obviously we would seek whatever legal basis we would need in order to make that justified.  I mean, we can't just pull them all together, in a combat operation, without getting the legal basis in which to act.


Senator Jeff Sessions (R):
Who are you asking for the legal basis from?


Secretary of Defense Leon Panetta:
If it's um, if the UN passed a security resolution as it did in Libya, we would do that, if NATO came together as we did in Bosnia, we would rely on that. So we have options here, if we want to build the kind of international approach to dealing with the situation.


Senator Jeff Sessions (R):
Well, I'm all for having international support, but I'm really baffled by the idea that somehow an international assembly provides a legal basis for the United States military to be deployed in combat. I don't believe it's close to being correct.  They provide no legal authority. The only legal authority that's required to deploy the United States military is the Congress and the President and the law and the Constitution.


Secretary of Defense Leon Panetta:
Let me, just for the record, be clear again, Senator, so there's no misunderstanding. When it comes to the national defense of this country, the President of the United States has the authority under the Constitution, to act to defend this country.  And we will.  If it comes to an operation where we're trying to build a coalition of nations, to work together, to go in and operate as we did in Libya or Bosnia, for that matter Afghanistan, we want to do it with permissions either by NATO or the international community.



Original Video: via Sen. Sessions Youtube:

Even media in other countries are taking notice. The quote of the day: "...As a former constitutional law professor, the President should know better.” -Raha Wala of Human Rights First

Seriously, all I hear is crickets from the people who complained that George Bush stomped on everyone's civil rights, and waterboarding. I'm not saying he was completely in the clear; more so that Obama should not be held to a different standard. In my opinion, from the language in this bill, and the targeted assassination of Anwar Al-Awlaki (I'm not saying he was a good guy, but it set a precedent for indefinite detention via hellfire missile of an American citizen who had not been arrested or charged with anything yet), and SOPA, somewhere George Orwell is in a grave, saying "I told you so."

Read the original here.

Americans face Guantánamo detention after Obama climbdown | World news
Chris McGreal in Washington
guardian.co.uk, Wednesday 14 December 2011 23.34 EST

Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.

Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of "a war that appears to have no end".

The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the "war on terror" to the US and applies the established principle that combatants in any war are subject to military detention.

The legislation's supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law's critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.

"It's something so radical that it would have been considered crazy had it been pushed by the Bush administration," said Tom Malinowski of Human Rights Watch. "It establishes precisely the kind of system that the United States has consistently urged other countries not to adopt. At a time when the United States is urging Egypt, for example, to scrap its emergency law and military courts, this is not consistent."

There was heated debate in both houses of Congress on the legislation, requiring that suspects with links to Islamist foreign terrorist organisations arrested in the US, who were previously held by the FBI or other civilian law enforcement agencies, now be handed to the military and held indefinitely without trial.

The law applies to anyone "who was a part of or substantially supported al-Qaida, the Taliban or associated forces".

Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals.

"We're facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life," he said. "When you join al-Qaida you haven't joined the mafia, you haven't joined a gang. You've joined people who are bent on our destruction and who are a military threat."

Other senators supported the new powers on the grounds that al-Qaida was fighting a war inside the US and that its followers should be treated as combatants, not civilians with constitutional protections.

But another conservative senator, Rand Paul, a strong libertarian, has said "detaining citizens without a court trial is not American" and that if the law passes "the terrorists have won".

"We're talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk," he said. "Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts."

Paul was backed by Senator Dianne Feinstein.

"Congress is essentially authorising the indefinite imprisonment of American citizens, without charge," she said. "We are not a nation that locks up its citizens without charge."

Paul said there were already strong laws against support for terrorist groups. He noted that the definition of a terrorism suspect under existing legislation was so broad that millions of Americans could fall within it.

"There are laws on the books now that characterise who might be a terrorist: someone missing fingers on their hands is a suspect according to the department of justice. Someone who has guns, someone who has ammunition that is weatherproofed, someone who has more than seven days of food in their house can be considered a potential terrorist," Paul said. "If you are suspected because of these activities, do you want the government to have the ability to send you to Guantánamo Bay for indefinite detention?"

Under the legislation suspects can be held without trial "until the end of hostilities". They will have the right to appear once a year before a committee that will decide if the detention will continue.

The Senate is expected to give final approval to the bill before the end of the week. It will then go to the president, who previously said he would block the legislation not on moral grounds but because it would "cause confusion" in the intelligence community and encroached on his own powers.

But on Wednesday the White House said Obama had lifted the threat of a veto after changes to the law giving the president greater discretion to prevent individuals from being handed to the military.

Critics accused the president of caving in again to pressure from some Republicans on a counter-terrorism issue for fear of being painted in next year's election campaign as weak and of failing to defend America.

Human Rights Watch said that by signing the bill Obama would go down in history as the president who enshrined indefinite detention without trial in US law.

"The paradigm of the war on terror has advanced so far in people's minds that this has to appear more normal than it actually is," Malinowski said. "It wasn't asked for by any of the agencies on the frontlines in the fight against terrorism in the United States. It breaks with over 200 years of tradition in America against using the military in domestic affairs."

In fact, the heads of several security agencies, including the FBI, CIA, the director of national intelligence and the attorney general objected to the legislation. The Pentagon also said it was against the bill.

The FBI director, Robert Mueller, said he feared the law could compromise the bureau's ability to investigate terrorism because it would be more complicated to win co-operation from suspects held by the military.

"The possibility looms that we will lose opportunities to obtain co-operation from the persons in the past that we've been fairly successful in gaining," he told Congress.

Civil liberties groups say the FBI and federal courts have dealt with more than 400 alleged terrorism cases, including the successful prosecutions of Richard Reid, the "shoe bomber", Umar Farouk, the "underwear bomber", and Faisal Shahzad, the "Times Square bomber".

Elements of the law are so legally confusing, as well as being constitutionally questionable, that any detentions are almost certain to be challenged all the way to the supreme court.

Malinowski said "vague language" was deliberately included in the bill in order to get it passed. "The very lack of clarity is itself a problem. If people are confused about what it means, if people disagree about what it means, that in and of itself makes it bad law," he said.

WH OKs indefinite military detention of terrorism suspects

Here's the big story for the day. Read the original here.

December 14, 2011 9:22 PM
WH OKs military detention of terrorism suspects
By Phil Hirschkorn

(CBS News) The White House is signing off on a controversial new law that would authorize the U.S. military to arrest and indefinitely detain alleged al Qaeda members or other terrorist operatives captured on American soil.

As the bill neared final passage in the House of Representatives and the Senate on Wednesday, the Obama administration announced it would support passage of the National Defense Authorization Act (NDAA), which contains slightly watered-down provisions giving the military a front line role in domestic terrorism cases.

The administration abandoned its long-held veto threat due to changes in the final version of the bill, namely that in its view, the military custody mandate has been “softened.” The bill now gives the President the immediate power to issue a waiver of the military custody requirement, instead of the Defense Secretary, and gives the President discretion in implementing these new provisions.

“We have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto,” the White House statement said.

The detainee provisions are just one part of the annual NDAA authorizing $662 billion in federal defense spending next year.

While the bill never expanded the authority to detain American citizens indefinitely without charges, proponents said the legislation would codify court decisions finding the President does have the authority to declare “enemy combatants,” as commander-in-chief and under the post-9/11 Authorization for Use of Military Force against al Qaeda and its allies. The administration, which has pledged not to use this power, believes the bill leaves this legal issue unresolved.

“By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in U.S. law,” said Kenneth Roth, executive director of Human Rights Watch. “In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side.”

FBI Director Robert Mueller, testifying before the Senate Judiciary Committee on Wednesday, said the provisions still could create confusion among counter-terrorism professionals.

“My concern is that you don’t want FBI agents and the military showing up at the same time, with some uncertainty” as to who has control, Mueller said, and raised this hypothetical example: “A case that we’re investigating on three individuals, two of whom are American citizens and would not go to military custody and the third is not an American citizen and could go to military custody?”

Mueller was joined earlier in the detainee debate by Defense Secretary Leon Panetta and Director of National Intelligence James Clapper in opposing the military custody provision, because they said it might inhibit flexibility by counter-terrorism professionals, restrain federal, state, and local law enforcement authorities, and risk losing the cooperation of terror arrestees.

“If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law,” said Laura Murphy, director of the ACLU Washington Legislative Office. “The last time Congress passed indefinite detention legislation was during the McCarthy era, and President Truman had the courage to veto that bill.”

Bill opponents have noted that in the decade since the 9/11, the government has successfully convicted over 300 people for terrorism-related crimes, including thwarted plots to bomb passenger jets, subway lines, and landmarks such as Times Square and the Sears Tower.

By comparison, the military justice system, although stymied by constitutional challenges, has completed only six cases in Guantanamo Bay, Cuba, where 170 detainees remain.

© 2011 CBS Interactive Inc.. All Rights Reserved.

Should ISP's keep your activities on record?

Read the original here.

Police: Internet Providers Must Keep User Logs | Privacy Inc.

Law enforcement representatives are planning to endorse a proposed federal law that would require Internet service providers to store logs about their customers for 18 months, CNET has learned.

The National Sheriffs' Association will say it "strongly supports" mandatory data retention during Tuesday's U.S. House of Representatives hearing on the topic.

Michael Brown, sheriff in Bedford County, Va., and a board member and executive committee member of the National Sheriffs' Association, is planning to argue that a new law is necessary because Internet providers do not store customer records long enough.

"The limited data retention time and lack of uniformity among retention from company to company significantly hinders law enforcement's ability to identify predators when they come across child pornography," according to a copy of Brown's remarks. Any stored logs could, however, be used to prosecute any type of crime.

The association's endorsement comes nearly two months after Reps. Lamar Smith (R-Texas), the head of the House Judiciary Committee, and Debbie Wasserman Schultz (D-Fla.) introduced legislation that would force Internet companies to log data about their customers. It says they must store for "at least 18 months the temporarily assigned network addresses the service assigns to each account, unless that address is transmitted by radio communication"--language that amounts to a huge and unusual exception for wireless carriers.

In January, the U.S. Department of Justice also called for some sort of legislation in this area, but the White House has not taken a public position and the department has pointedly declined to elaborate on what it wants. No Justice Department representative is scheduled to testify tomorrow. The International Association of Chiefs of Police applauded (PDF) data retention requirements five years ago but did not endorse specific legislation.

Brown declined a request from CNET to discuss his testimony.

The Republican backers of the bill--it was the GOP's first major tech initiative after taking over the House in January--hope Brown's endorsement will provide a welcome boost to their proposal's prospects.

Similar bills have been introduced starting in early 2006, but privacy and civil liberty concerns have kept them from even receiving a floor vote. So has the scope: industry representatives have been wary ever since Justice Department representatives were talking privately about whether social-networking sites should be required to keep track of what Internet address uploaded what photograph.

According to Brown's testimony:
Unmasking child pornographers on the Internet is a painstaking and complex process for law enforcement officers and typically requires assistance from Internet Service Providers (ISPs) to accurately identify the perpetrator. However, some ISPs only retain their clients' records for a short period of time. It could be hours. It could be days. It could be weeks. It could be months. And it varies from ISP to ISP. As such, the limited data retention time and lack of uniformity among retention from company to company significantly hinders law enforcement's ability to identify predators when they come across child pornography.

Marc Rotenberg, executive director of the Electronic Privacy Information Center, is planning to suggest during tomorrow's hearing that the committee rewrite the measure by eliding the most incendiary sections. In an e-mail Monday afternoon, Rotenberg said he also has concerns that the language ignores reasonable data minimization procedures and doesn't envision how bad a data breach could be.

The definitions in Smith's bill could sweep in coffee shops that offer wired connections to their customers, as well as hotels, universities, schools, and businesses that offer wired network connections, on top of traditional broadband providers.

Smith introduced a broadly similar bill in 2007, without the wireless exemption, calling it a necessary anti-cybercrime measure. "The legislation introduced today will give law enforcement the tools it needs to find and prosecute criminals," he said in a statement at the time.

These concepts are not exactly new. In June 2005, CNET was the first to report that the Justice Department was quietly shopping around the idea, reversing the department's previous position that it had "serious reservations about broad mandatory data retention regimes." Despite support from FBI director Robert Mueller and the Bush Justice Department, however, the proposals languished amid worries about privacy and the cost of compliance.

"Retention" vs. "preservation"
At the moment, Internet service providers typically discard any log file that's no longer required for business reasons such as network monitoring, fraud prevention, or billing disputes. Companies do, however, alter that general rule when contacted by police performing an investigation--a practice called data preservation.

A 1996 federal law called the Electronic Communication Transactional Records Act regulates data preservation. It requires Internet providers to retain any "record" in their possession for 90 days "upon the request of a governmental entity."

Because Internet addresses remain a relatively scarce commodity, ISPs tend to allocate them to customers from a pool based on whether a computer is in use at the time. (Two standard techniques used are the Dynamic Host Configuration Protocol and Point-to-Point Protocol over Ethernet.)

In addition, an existing law called the Protect Our Children Act of 2008 requires any Internet provider who "obtains actual knowledge" of possible child pornography transmissions to "make a report of such facts or circumstances." Companies that knowingly fail to comply can be fined up to $150,000 for the first offense and up to $300,000 for each subsequent offense.

Read more: http://news.cnet.com/8301-31921_3-20078653-281/police-internet-providers-must-keep-user-logs/#ixzz1RzOLmPvY

Obama Administration pulls a Biden

Talk about foot in mouth. It will be interesting to see #1. how the administration reacts to this statement (spin / defend) #2. How the media will treat this. I don't throw this argument around very much, but I find Mr. Katyal's statement to the Court, both Un-American and offensive. One of the core principles to me of this country is working hard to create as much wealth for you and your family as you can or desire. It is not, work less, earn less, wait for the government to take care of you. I assume for his sake and the benefit of the doubt that this argument was made in reaction to the fact that there is no legal defense for applying the commerce clause to the individual healthcare mandate, and he was just pulling words out of a deep dark place.  In that case, they're not un-american, they just have no legal leg to stand on, the landmark "win" for the administration would be bunk, and the administration would have to eat crow.  Read the original here.

Obama Solicitor General: If You Don't Like Mandate, Earn Less Money | Philip Klein | Beltway Confidential
President Obama's solicitor general, defending the national health care law on Wednesday, told a federal appeals court that Americans who didn't like the individual mandate could always avoid it by choosing to earn less money.

Neal Kumar Katyal, the acting solicitor general, made the argument under questioning before the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, which was considering an appeal by the Thomas More Law Center. (Listen to oral arguments here[1].) The three-judge panel, which was comprised of two Republican-appointed judges and a Democratic-appointed judge, expressed more skepticism about the government's defense of the health care law than the Fourth Circuit panel that heard the Virginia-based Obamacare challenge last month in Richmond. The Fourth Circuit panel was made up entirely of Democrats, and two of the judges were appointed by Obama himself.

During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”

Kaytal responded by noting that the there's a provision in the health care law that allows people to avoid the mandate.

“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”

Sutton interjected, “That wasn’t in a single speech given in Congress about this...the idea that the solution if you don’t like it is make a little less money.”

The so-called “hardship exemption” in the health care law is limited, and only applies to people who cannot obtain insurance for less than 8 percent of their income. So earning less isn't necessarily a solution, because it could then qualify the person for government-subsidized insurance which could make their contribution to premiums fall below the 8 percent threshold.

Throughout the oral arguments, Kaytal struggled to respond to the panel's concerns about what the limits of Congressional power would be if the courts ruled that they have the ability under the Commerce Clause to force individuals to purchase something.

Sutton said it would it be “hard to see this limit” in Congressional power if the mandate is upheld, and he honed in on the word “regulate” in the Commerce clause, explaining that the word implies you're in a market. “You don’t put them in the market to regulate them,” he said.

In arguments before the Fourth Circuit last month, Kaytal also struggled with a judge's question about what to do with the word “regulate,” to the point where the judge asked him to sit down to come up with an answer. (More on that exchange here[2]). Kaytal has fallen back on the Necessary and Proper clause, insisting that it gives broader leeway to Congress.

Judge James Graham, a Reagan district court appointee who is temporarily hearing cases on the appeals court, said, “I hear your arguments about the power of Congress under the Commerce Clause, and I’m having difficulty seeing how there is any limit to the power as you’re defining it.”

Kaytal responded by referencing United States v. Morrison, in which the Supreme Court struck down parts of the Violence Against Women Act, and United States v. Lopez, which struck down gun free school zones. In those cases, Kaytal responded, the Supreme Court set the limit that the Commerce Clause had to regulate economic activities.

The health care market is unique, Kaytal insisted, because everybody will eventually participate. With the mandate, Kaytal said, “What Congress is regulating is not the failure to buy something. But failure to secure financing for something everyone is going to buy.”

Graham acknowledged Kaytal's arguments, yet reiterated that he was “having trouble seeing the limits.”

The problem with the “health care is unique” argument – and this is me talking – is that it just creates an opening for future Congresses to regulate all sorts of things by either a) arguing that a particular market is also special or b) finding a way to tie a given regulation to health care.

For instance, the example that's come up often is the idea of a law in which government forces individuals to eat broccoli.

During the Sixth Circuit argument, Kaytal said that such an example doesn't apply, because if you show up at a grocery store, nobody has to give you broccoli, whereas that is the case with health care and hospital emergency rooms.

Yet that argument assumes that Congress passes such a law as a regulation of the food market. What if the law was made as part of a regulation of the health care market? It isn't difficult to see where that argument can go.

The broccoli example is really a proxy for a broader argument about whether the government can compel individuals to engage in healthy behavior – it could just as well be eating salad, or exercising. There's no doubt that a huge driver of our nation's health care costs are illnesses linked to bad behavior. People who are overweight and out of shape cost more because they have increased risk of heart disease, diabetes, and so on. Those increased costs get passed on to all of us, because government pays for nearly half of the nation's health care expenses, a number that's set to grow under the new health care law. Is it really unrealistic to believe that future Congresses, looking for ways to control health care costs, could compel healthy behavior in some way? More pertinently, is there any reason why that would be unconstiutional under the precedent that would be set if the individual mandate is upheld?

With most experts expecting the case to go before the Supreme Court, it seems the biggest obstacle for the Obama administration is figuring out where power would be limited if the mandate were upheld. Those challenging the law have made a clear and understandable limit by drawing a distinction between regulating activity and regulating inactivity (i.e. the decision not to purchase insurance). But simply saying the health care market is unique doesn't actually create a very clear or understandable limit to Congressional power.

The 11th Circuit hears the case next week brought by 26 states led by Florida.
Follow the Washington Examiner on Facebook[3]

References
^ here (www.ca6.uscourts.gov)
^ here (washingtonexaminer.com)
^ Follow the Washington Examiner on Facebook (www.facebook.com)

Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/beltway-confidential/2011/06/obama-solicitor-general-if-you-dont-mandate-earn-less-money#ixzz1ODi45Ux7

Global Taxes?

Umm....what about national sovereignty? Read the original here.

Obama Administration Throws Support Behind World Tax Organization

I’ve been battling the Organization for Economic Cooperation for years[1], ever since the Paris-based bureaucracy unveiled its “harmful tax competition” project in the late 1990s. Controlled by Europe’s high-tax welfare states, the OECD wants to prop up the fiscal systems of nations such as Greece and France by hindering the flow of jobs and capital to low-tax jurisdictions.

Guided by a radical theory know as Capital Export Neutrality[2], the OECD wants to impose global tax rules that would prevent taxpayers from ever having the ability to benefit from better tax law in other jurisdictions. This is why, for instance, the international bureaucrats are anxious to undermine national tax laws – such asAmerica’s favorable treatment of bank deposits from overseas[3] – that enable people to escape onerous tax regimes.

Bolstered by support from the Obama Administration, the OECD now is taking its campaign to the next level. At its Global Tax Forum in Bermuda, which ends later today, the bureaucrats unveiled a new scheme that effectively would result in the creation of something akin to a World Tax Organization.

The vehicle for this effort is a Multilateral Convention on Mutual Administrative Assistance in Tax Matters. This may sound dry and technical, but the OECD wants all nations to participate in this pact, which has existed for a couple of decades but was radically expanded last year to give high-tax governments sweeping new powers to impose bad tax law on income generated in low-tax jurisdictions.

But the real smoking gun is that the OECD has put itself in charge of the “co-ordinating body” that will have enormous powers to interpret the agreement, modify the pact, and resolve disputes – thus giving itself the ability to serve as judge, jury, and executioner.

This is a profoundly dangerous development with all sorts of very troubling implications. Since I’m in Bermuda trying to destabilize this effort, I don’t have time for extensive analysis, but here’s a press release from the Center for Freedom and Prosperity[4] and here are some of my immediate concerns.1. Higher tax burdens. If high-tax governments succeed is imposing this Multilateral Convention (insert “World Tax Organization” whenever you see that term), tax competition will be undermined and politicians will respond by increasing tax burdens[5]. This is why nations such as France have been pushing this scheme, of course, and why left-wing academics have long dreamed of this type of arrangement.2. Risk to human rights. Amazingly, the Multilateral Convention is open to repressive regimes, which then would have access to all sorts of sensitive and confidential taxpayer information. Already, the thuggish dictatorship of Azerbaijan has signed up, as well as the unstable nation of Moldova and the corrupt government of Mexico. The implications are grim[6], including the sale of private data to criminal gangs, the loss of sensitive information to hackers, and the direct misuse of American tax returns.3. Loss of sovereignty. For all intents and purposes, the Multilateral Conventionoutlaws certain pro-growth tax policies and discourages others[7]. Equally worrisome, it creates a system allowing foreign tax collectors to cross borders. The Obama Administration has specifically acquiesced to this provision, so perhaps we will soon see corrupt Mexican tax authorities harassing businesses and individuals on American soil.4. Outlawing tax avoidance. The OECD historically has tried to portray its efforts as a fight against tax evasion, but the Multilateral Convention explicitly talks about “combating tax avoidance.” This should not be a surprise since the Capital Export Neutrality ideology is based on the notion that taxpayers should have zero ability to lower their tax burdens[8]. This means we can fully expect an assault on all forms of tax planning, with American companies almost sure to be among the first to be in the OECD’s crosshairs.

The final insult to injury is that American taxpayers are the biggest funders of the OECD, providing nearly one-fourth of the bureaucracy’s bloated budget. So our tax dollars are being used by OECD bureaucrats (who receive tax-free salaries[9]!) to dream up new ways of increasing our tax burdens. In case you need any additional reasons to despise this bureaucracy, here’s a video detailing its anti-free market activities.
http://www.youtube.com/watch?v=oVr8R41nZJU

And since I’m recycling some videos, here’s one explaining why tax competition is so important.
http://www.youtube.com/watch?v=nJWLemN29Wc

References
^ battling the Organization for Economic Cooperation for years(danieljmitchell.wordpress.com)
^ radical theory know as Capital Export Neutrality (danieljmitchell.wordpress.com)
^ America’s favorable treatment of bank deposits from overseas(danieljmitchell.wordpress.com)
^ press release from the Center for Freedom and Prosperity (freedomandprosperity.org)
^ politicians will respond by increasing tax burdens (danieljmitchell.wordpress.com)
^ implications are grim (danieljmitchell.wordpress.com)
^ outlaws certain pro-growth tax policies and discourages others(danieljmitchell.wordpress.com)
^ notion that taxpayers should have zero ability to lower their tax burdens(danieljmitchell.wordpress.com)
^ receive tax-free salaries (danieljmitchell.wordpress.com)

Is Obama wrong that he says he doesn't need Congressional approval in Libya?

Read the original here.

Congress Returns To Town With Demand Obama Get OK On Libya

President Obama[1] could be impeached for violating U.S. Constitution and law by going into Libya[2] without congressional[3] consent, but Rep. Dennis Kucinich[4] says he doesn't want to cause that kind of havoc on the Republic, he just wants the United States[5] to get out of Libya's civil war[6].

While many lawmakers in general support the U.S. role in Libya, even if they want the final say on approving military action, Kucinich, D-Ohio, will introduce a joint resolution when Congress returns this week that he says "hopefully will lead us out of this mess that we've waded into in Libya."

The eight-term congressman and former presidential candidate said Obama "moved to attack Libya without constitutional authority" and violated U.S. law[7] by not complying with the War Powers Act, which requires a president to get authorization from Congress within 60 days of launching a military action.

He told Fox News on Sunday that absent an imminent threat, the president is not allowed to usurp the role of Congress in determining whether or not to declare war. Kucinich added that the president is aware of that separation of powers authority because he used the argument in 2007 to protest President George W. Bush's troop surge.

"He knows better and we have to call him on that," Kucinich said.

Like other presidents before him, Obama contends he does not need to comply with the War Powers Act for a limited operation[8] and therefore did not have to get congressional approval within 60 days of sending the U.S. military into Libya.

However, on Saturday -- 61 days after the start of U.S. operations in Libya -- Obama sent a letter to congressional leadership saying that he supports a measure being drafted by a bipartisan group of senators[9] approving of the military effort in Libya.

"Congressional action in support of the mission would underline the U.S. commitment to this remarkable international effort. Such a resolution is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter. It has always been my view that it is better to take military action, even in limited actions such as this, with congressional engagement, consultation, and support," he wrote.

Senate Minority Leader Mitch McConnell said he doesn't know if the president violated the War Powers Act, and finds the administration's actions "a bit confusing now."

"The administration is going to have to decide whether it thinks it was triggered and we'll have to respond to that," McConnell told "Fox News Sunday." Senator (John) McCain has been to Benghazi as I think everyone knows. He is keeping us posted on what he thinks ought to be done."

Kucinich said the U.S. has no business[10] intervening in Libya because it's a civil war. He added that the rebel forces the U.S. and NATO appear to be backing are demonstrating some disturbing behaviors, including "committing some of the same practices that they accused Colonel Qaddafi[11] of."

Beyond that, he added, the whole operation stinks of a bid for the oil fields of Benghazi, where the rebels have set up their stronghold.

"Right after the rebels solidified their control of the Benghazi areas they cut a deal with Qatar[12], $100 million oil market deal. And they've been in Washington intimating that if we find find a way to support them, then they're willing to be good to us on oil deals," Kucinich alleged.

He added that the U.S. can't afford to fight another war while the bills rack up at home.

"We have problems here at home, we have budget problems, we have deficit problems and yet we're ready for another war," he said. "Are you kidding me? This president has to be called to accounting on this, and this is not an academic matter. This is about the Constitution, and if we stand by the Constitution we'll be safe, but if we don't, we're looking at America going deeper into a war here."

Kucinich said that he doesn't want to impeach Obama because it's a "destabilizing factor" for the country, but he points out that the Constitution is on his side in an impeachment process because he wants to point out how "grave" the matter is.

"You know, we don't need an impeachment but we need and must require our president to follow the Constitution and established U.S. law. We have to demand it," he said.

References
^ President Obama (www.foxnews.com)
^ Libya (www.foxnews.com)
^ congressional (www.foxnews.com)
^ Dennis Kucinich (www.foxnews.com)
^ United States (www.foxnews.com)
^ civil war (www.foxnews.com)
^ law (www.foxnews.com)
^ operation (www.foxnews.com)
^ senators (www.foxnews.com)
^ business (www.foxnews.com)
^ Qaddafi (www.foxnews.com)
^ Qatar (www.foxnews.com)

Read more: http://www.foxnews.com/politics/2011/05/22/congress-returns-town-demand-obama-ok-libya/#ixzz1NBo05Wq1