A Mormon’s Individual View of California’s Proposition 8 and the Defense of Marriage Act in the Supreme Court

To preface this, I lived in Oregon as a single woman for 13 years where I worked amongst gays and lesbians, uncaring what their sexual orientation was. I still do not care what their orientation is. The truth is, I don’t want it shouted in my face any more than I would reciprocate with “I am a proud heterosexual” in their’s. Over time, I have learned to pick my battles and this really isn’t one of them. I do agree that the term “Marriage” should be reserved for a legal union between a man and woman. Pick another term for the LGBT unions – Civil Unions, Civil Fusion, Civil Blend, Amalgamation of Domesticity – I really do not care. If people choose to have relations with the same sex, fall in love and wish to commit the rest of their lives to it, I believe they should have the same legal rights as partners.

In Oregon, I worked for a Regional Government agency who recognized both same-sex and  domestic partnerships the same way. If they had been together a year or more, they could be placed on the working partner’s insurance and were allowed the same benefits as those within the marriage covenant. It seems a beneficial understanding. In calling them same sex marriages, it may be a case of the dominoes falling; what of polygamy? Haven’t many of them entered into a consensual relationship? What of Bigamy? And where will it leave those congregants and churches who refuse to perform same-sex marriages? Erick Erickson’s message over at RedState is:

Once the world decides that real marriage is something other than natural or Godly, those who would point it out must be silenced and, if not, punished. The state must be used to do this. Consequently, the libertarian pipe dream of getting government out of marriage can never ever be possible.

Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan. In some places this is already happening.

Christians should, starting yesterday, work on a new front. While we should not stop the fight to preserve marriage, and we may be willing to compromise on civil unions, we must start fighting now for protections for religious objectors to gay marriage.

Churches, businesses, and individuals who refuse to accept gay marriage as a legitimate institution must be protected as best we can. Those protections will eventually crumble as the secular world increasingly fights the world of God, but we should institute those protections now and pray they last as long as possible.

There are many in the gay community who are simply wanting to live as they wish. Just like us. However, there are those within said community who seek to push an agenda which will not be accepted under any circumstance by those religiously wanting to live the way THEY want to. Yes, the Supreme Court may say same-sex unions are valid and should be confirmed by a sweeping decree. Once the LGBT community gets that, what will they want next? Because if they begin coming after churches and my church in particular, they will encounter a fight. I am not their enemy. But I could be if they wish to impose their rights on me. As Troy Senik writes,

I want a “leave me alone” society — one where Christian schools can turn people away for rejecting their doctrine, just as gay rights groups can reject those who don’t share their beliefs. I don’t want us all to get along — not because I’m misanthropic (well, not just because I’m misanthropic), but because I know that “consensus” is usually a fancy word for muting minority viewpoints. I want us all to be free to be annoyed with each other from our separate corners. Is that too much to ask?

On the core point, Erickson is right. The coming fight is preserving what’s left of the rights of free association and conscience. That fight, in my judgment, has much more to do with the preservation of basic American liberties than the one playing out in the Supreme Court this week.

 Michael Otterton, LDS Church Spokesman makes clear the views of our religion:

While we disagree with the Human Rights Campaign on many fundamentals, we also share some common ground. This past week we have all witnessed tragic deaths across the country as a result of bullying or intimidation of gay young men.  We join our voice with others in unreserved condemnation of acts of cruelty or attempts to belittle or mock any group or individual that is different – whether those differences arise from race, religion, mental challenges, social status, sexual orientation or for any other reason.  Such actions simply have no place in our society.

This Church has felt the bitter sting of persecution and marginalization early in our history, when we were too few in numbers to adequately protect ourselves and when society’s leaders often seemed disinclined to help.  Our parents, young adults, teens and children should therefore, of all people, be especially sensitive to the vulnerable in society and be willing to speak out against bullying or intimidation whenever it occurs, including unkindness toward those who are attracted to others of the same sex. This is particularly so in our own Latter-day Saint congregations. Each Latter-day Saint family and individual should carefully consider whether their attitudes and actions toward others properly reflect Jesus Christ’s second great commandment – to love one another.

As a church, our doctrinal position is clear: any sexual activity outside of marriage is wrong, and we define marriage as between a man and a woman. However, that should never, ever be used as justification for unkindness. Jesus Christ, whom we follow, was clear in His condemnation of sexual immorality, but never cruel.  His interest was always to lift the individual, never to tear down.

Further, while the Church is strongly on the record as opposing same-sex marriage, it has openly supported other rights for gays and lesbians such as protections in housing or employment.

We love you, we are sensitive to your plight of being intimidated for your beliefs. We strive to love all people, and we do openly support employment and housing rights for those of the LGBT community. We condemn acts of cruelty. But we do not, nor will we ever agree to passively approve same-sex marriages. It is my right as a member of the LDS church, an American and a woman of faith. Don’t force your agenda on me and I won’t shove my heterosexuality on you.  Brother Otterton’s concluding remarks echo my own, “We hope and firmly believe that within this community, and in others, kindness, persuasion and goodwill can prevail.”

Let’s Play “What If”…

“What if we completely banned guns on all Federal grounds in DC? No one could have them, at all, no exceptions. Think of how safe and secure all our elected officials would feel in knowing that not even a police officer or secret service agent could get a gun near them!”

H/T Instapundit

Supreme Court to determine legality of reselling iphones, cars, textbooks

WashingtonTimes

All eyes will be on Justice Elena Kagan on Monday, when the Supreme Court considers a copyright case that some fear could prevent people from reselling certain products they own such as the iPhone, as she may have the deciding vote.

In a case that tests the boundaries of copyright law, merchants and consumers say they have the right to resell what they own, but content creators argue they should be protected from shady deals that undercut retail prices.

The case, Kirtsaeng v. John Wiley & Sons, calls into question the first-sale doctrine, a rule in copyright law that allows the owner of any particular product to resell it. The principle behind it is that the manufacturer controls only the original sale of each copy. But the Supreme Court is considering an exception for products made overseas.

That means you could be stuck with everything from your outdated smartphone to the beat-up clunker you drive to the raggedy clothes you’ve out grown, if it’s made in China, or India, or anywhere else.

Most of the Supreme Court justices have made up their minds on similar cases in the past, and are split on this issue, experts say, but it will be the first such case Justice Kagan, who was nominated by President Obama, gets to consider as a member of the court.

“Most likely her vote will be the one that is one the winning side,” said Ronald Mann, professor of law at Columbia Law School. “We’ll know more after the arguments. The justices will ask questions, and often the questions will give you insight into what they think about it.”

Both sides will also be watching the other justices “to see if they are consistent with the past,” he said.

The case revolves around Thailand native Supap Kirtsaeng, who moved to the U.S. for college and found that it was cheaper to buy textbooks back home than here. So he plotted to have his family buy the less expensive textbooks and ship them to the U.S., where he made about $900,000 on eBay, undercutting the publisher’s prices.

The Supreme Court will now review the case, after a lower court ordered him to pay John Wiley & Sons $600,000 for the scheme.

The outcome could be devastating: Whether it be online retailers like eBay and Craigslist, thrift shops like Goodwill and Salvation Army, or regular people who want to hold a garage sale, item owners would be required to get the manufacturer’s permission before reselling the products they own, and the manufacturer could potentially charge a portion of the resale.

Overstock.com, an online retailer that sells products at below-wholesale prices, has joined the Owners’ Rights Initiative in supporting the first-sale doctrine. President Jonathan Johnson said in an interview it’s not fair to make stores figure out which products can be resold and which products need permission to be resold.

“They will make retailers be the policemen for manufacturers,” Mr. Johnson said. “Of course, we’ll have to police it, unless we’re willing to spend our life mired in litigation. Retailers would be policing their own sales.”

It could also lead to higher prices for consumers, because the manufacturers would face less competition from the secondary market.

“The real loser is the American consumer,” Mr. Johnson said. He gave the scenario of a luxury watch that is sold at retail price in the U.S. for $300. “We can go buy that same watch in southeast Asia for $100, bring it back to the customers here and we won’t sell it for $300, we’ll sell it for a lot less.”

Not to mention, creating an exception to the first-sale doctrine could encourage U.S. manufacturers to close up shop and build their products in other countries – at a time when President Obama continues to pound Republican challenger Mitt Romney for his time with Bain Capital, a company that sent jobs overseas.

But manufacturers complain that resellers are taking advantage of them and say there should be an exception to the first-sale doctrine. Particularly in the book publishing, electronics, and movie industries, the content creators say some scammers will buy their products from other countries at lower rates, then bring them back to the U.S. for resale to undercut their prices.

The Motion Picture Association of America and the Recording Industry Association of America filed a joint brief with the Supreme Court in favor of an exception to the first-sale doctrine.

“Copyright protection is essential to the health of the motion picture and music industries and the U.S. economy as a whole,” they wrote. “Like the sale of ‘pirated’ copies, unauthorized importation of copies of protected works made overseas and intended only for sale in a foreign market can undercut or eliminate the economic benefit that Congress intended to provide under the Copyright Act.”

The Supreme Court, which will hear arguments on Monday, has repeatedly but unsuccessfully dealt with this issue before, and is looking to put it to rest once and for all.

“It keeps coming back to the Supreme Court and they haven’t resolved it,” Mr. Mann said.

In 2010, the court considered a similar case, Omega vs. Costco, after Costco was sued for reselling Omega’s luxury watches in the U.S. without the Switzerland-based company’s authorization.

Costco, which purchased the watches through a long line of distributors, argued that the first-sale doctrine allowed them to do so, because the watchmaker had already made the original sale.

The trial court sided with Costco, but the Ninth Circuit Court of Appeals reversed the ruling on the grounds that the first-sale doctrine only applies to products made in the U.S. That decision applies only to the west coast states that are located within the court’s reach.

The Supreme Court then agreed to hear Omega vs. Costco, but newly-appointed Justice Kagan had to recuse herself from the case, and it resulted in a 4-4 tie.

Shortly before being nominated for the Supreme Court, Justice Kagan participated in the same case as U.S. solicitor general, filing a brief for the Obama administration in favor of Omega and against Costco.

This time around, she faces no conflict of interest in Kirtsaeng v. John Wiley & Sons and figures to be the deciding vote.

Overstock’s Mr. Johnson agreed.

“She is the swing vote in this case,” Mr. Johnson said. “So that’s why a lot of people think this case is a jump ball. It just depends on which way Justice Kagan goes.”

Roberts’ Real Long Game?

TheAtlantic

Many are saying Chief Justice Robert’s decision to sustain Obamacare was designed to preserve the long-term political capital of the Court. I think he simply made the decision he ultimately decided was right on the tax issue, which the precedent strongly supported. But to the extent a long-term political angle may have subconsciously motivated him, there is a large one that commentators have so far missed.

The unseen long game is that sustaining Obamacare as a tax helps preserve the Republicans’ ability to adopt two items on their own political wish list: the Paul Ryan plan to privatize Medicare and George W. Bush’s plan to privatize Social Security.

Consider the Ryan plan. It would convert Medicare into a voucher that seniors could use toward buying medical insurance from either Medicare or private insurers. The voucher amount would equal the cost of the second-cheapest plan, so if traditional Medicare is not one of the two cheapest plans, individuals would have to buy a private plan to avoid paying extra.

In short, under the Ryan plan, Medicare would become a mandate to make contributions into a Medicare trust that you would later draw from to buy yourself medical insurance, which could be from a private insurer, and might have to be so in order to avoid paying a penalty. This looks a lot like Obamacare’s mandate to buy yourself medical insurance. There are two seeming differences, but neither is telling.

First, under the Ryan plan, the government would hold the mandatory contribution as a middleman. But it is hard to see why that should make a difference given that the Ryan plan requires the government to hold at least some of that money in trust for you, and you get to direct which insurer receives it. Nor does this feature distinguish Obamacare, under which government exchanges will also hold mandated contributions as a middleman for many people.

Second, under the Ryan plan, individuals can use their mandatory contributions to buy their insurance from a public provider. But that is the very public option that Republicans refused to allow in Obamacare, so it would seem odd to say that such a public option is constitutionally required. Nor does adding such a public option lessen any concern with mandating the purchase of insurance. No one argued that the feared “broccoli mandate” would have been fine if one had the option to buy that broccoli from a government store.

So, if Roberts had held that Obamacare was an unconstitutional mandate that could not be sustained under the taxing power, that would have created a serious risk that some later court would say the same about the Ryan plan. The same risk would have also imperiled any revival of the Bush plan, which effectively converts Social Security into an individual mandate to invest your Social Security contributions into a private retirement plan.

True, the Ryan and revived Bush plans could have tried to avoid this risk by using the word “tax” over and over to describe our mandatory contributions to their plans. But the one thing that is crystal clear from the tax power case-law is that it relies on function, not labels, to decide what counts as a tax.

So Roberts could have held Obamacare outside the taxing power only if he held that functionally it could not be treated as a tax. If so, then the Ryan or Bush plans are even less like a tax (no matter what label they bear) because if you don’t make your required Medicare or Social Security contributions, you are subject to the full panoply of coercive IRS penalties, including criminal punishment. In contrast, Obamacare merely requires those with significant earned income to either obtain insurance or pay a small tax.

Maybe Roberts was not thinking about any of this. But a traditional judicial tool involves considering how any holding would affect a range of future possible cases. So this possibility strikes me as far more plausible than imaging he caved to political pressure, especially since Obamacare has (so far) not been that popular with the public anyway.

Whatever Roberts was thinking, one important effect of his decision is to preserve our nation’s flexibility to try these sort of mixed public-private approaches, rather than being limited to only statist solutions to our national problems.

Discord at Supreme Court is deep, and personal

CBSNews

Discord at the Supreme Court is deep and personal after Chief Justice John Roberts’ surprise decision to side with the liberal justices in upholding a large portion of the president’s health care plan. This discord is going to affect this Court for a long time – and no one has any idea how it will be resolved.

Conservatives feel a sense of betrayal. They feel that Roberts changed his mind for the wrong reasons.

If Roberts had been with the liberals from the beginning, sources tell me that would have been one thing; but switching his position – and relatively late in the process – infuriated the conservatives.

Of course it’s unclear why he switched. He may have been focused solely on the law. But that is not what some of his colleagues believe.

Roberts initially sided with the four conservatives to strike down the heart of the health care law – the individual mandate, the requirement that all Americans buy insurance or pay a penalty.

When he changed his mind and joined with the liberals to uphold the law instead, he tried furiously – with a fair amount of “arm twisting” – to get Justice Anthony Kennedy to come along. Kennedy sometimes breaks with conservatives, so Roberts likely saw him as his best hope.

But on this issue of federal power, Kennedy was firm. The conservatives refused to even engage with Roberts on joining his opinion to uphold the law. They set out writing their own opinion – they wrote it to look like a majority decision, according to sources, because they hoped Roberts would rejoin them to strike down the mandate. Kennedy relentlessly lobbied Roberts until the end to come back. Of course he did not, and the conservatives’ decision became a dissent.

Now this conflict has been brewing for some time. You can trace it back to the first full term of the new Roberts Court. That term had several controversial cases, including school busing and abortion. Liberal justices thought Roberts had signaled he would be open to compromise and be more moderate. But he sided with conservatives that year, making the liberals feel misled. They were furious. As one said at the time: “He talks the talk, but won’t walk the walk.”

Conservatives were angry at Roberts, too – they thought he gave the liberals false hope. He ended up just pushing them further away.

That tension eased over the summer of 2007. But this conflict among conservatives – after Roberts “walked the walk” with liberals – may take much longer to resolve.

It’s not unheard of for the Court to erupt into conflict; Bush v. Gore in 2000 was a famous example. But some people say you would have to go back nearly 70 years to see this kind of tension, and almost bitterness, that now exists among the justices.

Supreme Court upholds key immigration status check provision of Arizona law

LegalInsurrection

The Supreme Court decided the Arizona immigration law, S.B. 1070.  Justice Kennedy wrote the majority opinion.

The Court struck the provisions dealing with state criminal penalties and other provisions which imposed procedural requirements on illegals in the state.  Among the provisions the Court struck is the one requiring that a person be detained if the police officer believes the person is removable:

Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed….

By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.

But the Court upheld, for now, the provision requiring a check of immigration status for persons otherwise detained.  The Court left open the possibility of additional legal challenges after the law goes into effect.  So expect more litigation.

Section 2(B) of S. B. 1070 requires state officers to make a ”reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE,which maintains a database of immigration records….

However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives….

There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law….

This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect…

The United States has established that §§3, 5(C), and 6of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement ofthe provision in fact conflicts with federal immigration law and its objectives.

The net-net?  The federal government did better than many expected, particularly on section 6.  I don’t think many people thought state criminal sanctions and other state requirements would survive.

Section 2(B) remains in effect for now, which politically is a lot more palatable, because the immigration status check only takes place after a lawful detention.  But there will be more litigation once the law is put into effect and applied.

Scalia dissented in part, and would have upheld the entire statute as a valid exercise of Arizona’s sovereignty:

What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority….

The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including amore rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona….

Arizona has moved to protect its sovereignty—not incontradiction of federal law, but in complete compliancewith it. The laws under challenge here do not extend orrevise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territoryin this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

Thomas joined Scalia in a separate partial dissent:

I agree with JUSTICE SCALIA that federal immigrationlaw does not pre-empt any of the challenged provisions of
S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinarymeanin[g]” of the relevant federal laws and that of thefour provisions of Arizona law at issue here.

Alito also filed a separate partial dissent, agreeing that section 2(B) was valid and section 3 (state penalties for violating federal law) preempted.  He would have upheld the other provisions struck by the majority.

The United States’ attack on §2(B) is quite remarkable.The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities,however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizingthat mere policy can have pre-emptive force….

It bears emphasizing that §6 does not mandate thewarrantless apprehension of all aliens who have committed crimes for which they are removable. Instead, it onlygrants state and local officers permission to make such arrests. The trouble with this premature, facial challengeis that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflictswith federal law.

The public trial of Justice Roberts

WashingtonPost

Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes.

If only it were fiction.

The justice is, of course, John Roberts and the case involves the Affordable Care Act (ACA), a.k.a. Obamacare, which would be affordable only if the Supreme Court upholds the individual mandate requiring all Americans to buy health insurance.

The left’s narrative goes as follows: If the justices side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court.

Writing in the New Republic, Jeffrey Rosen laid it out for Roberts, whose vote is likely to be decisive: “In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.”

Lest there be any lingering confusion, permit me: Vote our way, Chief Justice Roberts, or you will go down in history as having abrogated your duty; your reputation will be destroyed; and the country will hold you accountable for not only withholding health care from the American people but also for rolling back the New Deal.

In so many words.

Wait, the New Deal? Yes, according to many on the left, including Rosen, if the court rolls back Obamacare, it will also roll back the New Deal. Legal scholars on the right insist otherwise, noting that lawyers for the plaintiffs were explicit in denying any interest in overturning precedents.

I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is popular doesn’t make it “right” or legally correct. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn’t be popular.

Nevertheless, the left is pushing many such non-legal arguments, including that the court shouldn’t overturn a “popular” legislative act. Even the president advanced this argument as recently as last month, although the ACA is not, in fact, all that popular.

Speaking in the Rose Garden, Obama said: “Ultimately, 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.”

Senate Judiciary Chairman Pat Leahy also recently publicly lobbied Roberts, saying he trusts that the chief justice has “a strong institutional sense of the proper role of the judicial branch.” And, “it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. It is also factually challenged. Overturning a law would not be unprecedented or extraordinary, as any first-year law student could tell you, but don’t take my word for it. Harvard University’s Laurence Tribe, one of Obama’s professors and a leading liberal scholar of constitutional law, said that his former student “obviously misspoke.”

It happens. Yet criticizing the Supreme Court is a consistent refrain from Obama, who began his presidency by scolding the justices. During his first State of the Union address, Obama broke decorum by criticizing the justicesfor their Citizens United ruling, saying the court had “reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”

Talk about extraordinary.

Publicly chastising the court — and now taunting Roberts specifically — seems to have two purposes. One is to get under Roberts’s skin in the hopes that he’ll rule the “correct,” if not necessarily “legally correct,” way. Two is to lay the groundwork for declaring the court illegitimate if all or part of Obamacare is overturned.

Either way, it’s politics at its filthiest and is beneath the dignity of the court — and of the White House. Unfortunately for Roberts, it’s up to the chief justice to hold the bar high.

Targeting John Roberts

WSJ

You can tell the Supreme Court is getting closer to its historic ObamaCare ruling because the left is making one last attempt to intimidate the Justices. The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan “activist.”

Senate Judiciary Chairman Pat Leahy recently took the extraordinary step of publicly lobbying the Chief Justice after oral argument but before its ruling. “I trust that he will be a Chief Justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,” the Democrat declared on the Senate floor. “The conservative activism of recent years has not been good for the Court.”

He added that, “Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”

The elite liberal press has followed with pointed warnings that Mr. Roberts has a choice—either uphold ObamaCare, or be portrayed a radical who wants to repeal the New Deal and a century of precedent. This attack is itself clearly partisan, but it’s worth rehearsing the arguments to show how truly flawed they are.

The first fallacy is defining judicial activism as overturning a Congressional law. Since Marbury v. Madison established judicial review in 1803, the High Court has overturned hundreds of laws in part or whole. The real measure of activism is whether the Court’s reasoning is rooted in Constitutional principle. If it is, the Court is not activist but is adhering to the highest legal principles.

Regarding the Affordable Care Act, we’d argue that upholding the individual mandate to buy health insurance requires far more judicial activism. That’s because if the Court finds this federal mandate to be Constitutional, it will have no principle on which to limit future purchase mandates.

Once health insurance can be mandated, Congress will inevitably find that other products or services are equally essential to national well-being. Future Courts will either have to find all such purchase mandates to be legal, in which case there is no limiting principle, or they will have to pick and choose, which means an endless exercise in policy-making.

Far better for judicial modesty—and the reputation of the Court—to draw the line that the Commerce Clause forbids Congress from mandating that individuals engage in commerce because such police powers are reserved for the states. This is the truly restrained judicial position.

The most dishonest argument is the liberal media chant that overturning the law means overturning the New Deal era’s Commerce Clause precedents. This is propaganda. None of the plaintiffs advocated that any precedents be overturned, even though in our view some of those cases deserve to be overturned. Paul Clement and Michael Carvin, who argued for the plaintiffs before the Court, explicitly denied any such desire.

The left is playing up the libertarian legal views of academic Randy Barnett in particular, to suggest that he’s a pied piper for the conservative Justices. We often agree with Mr. Barnett, who has written for these pages, but on ObamaCare his influence has been overstated. Lawyers David Rivkin and Lee Casey were far more consequential in developing the legal and Constitutional case.

As recently as the gun rights case McDonald v. Chicago in 2010, a conservative majority ignored Mr. Barnett’s pleas to revive the long-dormant Privileges and Immunities Clause. Justice Antonin Scalia quipped during oral argument that this view was “the darling of the professoriate,” and libertarian legal activists denounced him for it. But in the Court’s 5-4 ruling, Justice Samuel Alito employed the conventional legal analysis known as substantive due process. So much for the primrose path to the 19th century.

The truth is that shouts of a “radical” Court are heard every time the Justices break with liberal orthodoxy, however modestly. The same journalists now warning about a radical states-rights agenda rang the same alarms in 1995 after the Rehnquist Court said Congress couldn’t use the Commerce Clause to regulate guns near schools in Lopez.

Far from beginning a radical march to the right, a 6-3 majority of the Court subsequently said Congress can regulate the growth of marijuana for personal use in Gonzales v. Raich in 2005. We disagreed with that ruling, but liberals ignore it because it doesn’t fit their current political narrative that Chief Justice Roberts is Roger Taney with a better haircut.

We doubt the High Court will be intimidated by any of this, and the truth is that no Justice would be worthy to sit on the Court if he is. As Chief Justice Roberts said at his confirmation hearing, a judge should be a neutral umpire who calls legal balls and strikes fairly as he sees them. The Court’s reputation will be tarnished if it bows to the political distemper of the moment, not if it follows the Constitution.

Time to put on your big boy pants, GOP

TheIrishExaminer

The primary turnout at my polling place last week was extremely low which was understandable given that there was very little choice for New York Republicans who preferred other presidential candidates than Mitt Romney. I ran into a neighbor who told me she had voted for Rick Santorum in spite of the fact that he had already left the race. “It’s the principle of the thing,” she explained. Wishful thinking I suppose and could relate as my preferred choice was Rick Perry. Nevertheless, I marked my ballot for Mitt Romney and I hope all Republicans do the same in November. Staying home that day out of principle will be a mortal sin.

It’s alleged that conservative talk shows have millions of listeners but many of them are quite prickly and would rather stay home than vote for someone they regard as too moderate. Consequently, candidates like Bill Clinton and Barack Obama end up in the White House with a Democrat Congress. In the past, our country has managed to survive the obstinate Republican voter but this November the stakes are too high and the stay-at-homes will be committing hara-kiri if they allow Obama a second term.

At the present time, the Supreme Court of the United States is the only weapon we have against this assault on our Constitution. It will be passing judgment this summer on two issues (Obamacare and Arizona’s immigration bill) that represent the power grab by this administration’s justice department.

It is still inconceivable that Obama’s Health initiative known as Obamacare – was able to pass at all. The over 2,000 page document was not even read by our legislature and we were told by then Speaker of the House, Nancy Pelosi, that “We Have to Pass the Bill So That You Can Find Out What Is In It”. This was pure madness. When certain representatives hesitated signing off on this horrendous bill, they were bribed with administrative pork to win their vote. Republicans were powerless against the Democrat Congress that had been put in power in 2006 by self righteous Republicans who were going to teach President Bush a lesson by staying home.

Democrats held meetings behind closed door refusing to admit Republicans. Even more outrageous, the bill itself was written by a convicted felon, Robert Creamer, who drafted the outline of the bill while in jail. His wife Congresswoman, Jan Schakowsky, is the most far-left member on Capitol Hill.

This unbelievable corruption of the legislative process led to the formation of the Tea Party, a grassroots movement that took its title from the American Revolution incident that sparked the mass revolt against the British Government. Americans are no longer feeling that America is a government of, by and for the people.

Only a Supreme Court ruling that this atrocious drain on our economy which has impeded new employers from hiring is unconstitutional will stem the disastrous tide this country is on.

The other issue that the court is facing is the challenge by the Eric Holder’s Justice Department to the Arizona immigration law. That law was passed by the state because the federal government had mandated that the state provide benefits to all regardless of immigration status yet it had not enforced immigration laws. Apparently this administration does not believe that states have the right to protect their own interests.

At the present time, the Supreme Court has a majority of conservative justices sworn to protect the Constitution and who regard it as a sacred document to be upheld as is. Liberal justices have always regarded the Constitution as a fluid document that can be amended to conform to their ideology and in the event that Obama is reelected he will have the opportunity to put these latter justices on the bench for their lifetimes. Goodbye First Amendment.

Those conservative purists who are prepared to snub Romney because of his political stances or his religion will guarantee the demise of our Republic. This is broken glass time just as it was for George Bush in 2004. Because of the threat to our national security, Republican voters swore to get to the polls to vote for him even if they had to crawl on “broken glass” to get there. 2012 is probably the most important election in our recent history and it will require everyone who loves this nation to mobilize efforts to ensure a Republican victory for the White House and Congress.

As I said before, Mitt Romney was not my first choice. I had serious misgivings about his statements about global warming and the economy. Rick Perry’s bold plan for revamping the government and his executive experience was more challenging and appealing. Unfortunately, his recovery from recent back surgery and pain medication led to a poor performance in the debates. It is interesting to note his fine character in leaving the race with grace and humility and when we look back at his so-called gaffes, they appear miniscule to those of the president and VP Biden.

Nevertheless, Mitt Romney will be my candidate for president and he can win with all our support.

At the beginning of the race last year, a friend of mine told me that he would never vote for any Mormon because he didn’t trust them. It was a cult. Last week, I asked him whom he’d vote for and he conceded that he’d hold his nose and vote for Romney. In 2004, I visited the first Mormon temple in Manhattan and was given a tour around the facility. After my column appeared in the New York Sun, I received tons of mail from around the world from current and former members of the Church of the Latter Day Saints a.k.a. Mormons. The majority of this correspondence was sent in gratitude for writing a respectful piece but a few were from former members who accused me of being deceived by my hosts. I had ended the column with this: “I am forever Catholic but respect any religion that won’t kill me for not believing in it.”

That is how I view the religion of politicians – it’s not so much the dogma of the faith but whether its goal is to undermine our system of government. Nothing about the Mormon religion has that goal in mind, in fact, I can think of only one world religion that espouses worldwide domination. Hint: it’s not Christianity or Judaism.

As for Romney’s moderate views, one must hope that as president he will feel less compelled to compromise with the opposition and will surround himself with a staff committed to the conservative principles of freedom this country was built on.

So hold your nose but drag yourself and everyone you know to the polls in November to vote to end the tyranny that President Obama and his congressional minions have inflicted on our beloved country.

A Bad Day In Court for the Obama Administration

PowerLineBlog

Some years ago, I worked on a big case in Alaska and spent a lot of time there. At that time, the local bar was buzzing about a lawyer who had a really bad day in court: he was kicked to death by a moose in the parking lot of the federal courthouse in Anchorage. Solicitor General Donald Verrilli didn’t have that bad a day today in the U.S. Supreme Court, arguing that Arizona’s immigration law is invalid by virtue of federal pre-emption, but he was kicked about a good bit by the justices.

On Twitter, Byron York asked: “Question for legal types: Is Donald Verrilli bad at his job or just burdened by having to defend the indefensible?” You can read the entire argument here and draw your own conclusions, but in my opinion, the problem was not with Verrilli but rather with the quality of the arguments that he was required to make by his client, the Obama administration.

News reports have focused on an exchange in which Justice Sotomayor, an Obama appointee, spoke for the Court in expressing open skepticism about Verrilli’s argument:

JUSTICE SOTOMAYOR: Can I get to a different question? I think even I or someone else cut you off when you said there were three reasons why — 2(B). Putting aside your argument that this — that a systematic cooperation is wrong — you can see it’s not selling very well — why don’t you try to come up with something else? Because I, frankly — as the chief has said to you, it’s not that it’s forcing you to change your enforcement priorities. You don’t have to take the person into custody. So what’s left of your argument?

Justice Sotomayor was commenting here on an extraordinary aspect of the Obama administration’s position, to the effect that it is OK if individual Arizona law enforcement officers decide to cooperate with federal immigration authorities, but if the state directs them all to cooperate, it is somehow unconstitutional. The Obama administration literally argued that for a state to engage in “systematic cooperation” with the federal government on immigration is unlawful. We can’t blame Mr. Verrilli for his inability to sell that bizarre argument. We do blame Barack Obama and Eric Holder for trying to assert it.

Of course, what is going on here is that the Obama administration doesn’t want to enforce the immigration laws that Congress has enacted. The essence of its position in the Arizona case is that the federal government has the right to decide not to enforce the law, and if it so decides, then no state has the power, under the Constitution, to do anything that would tend to enforce those federal laws. So if the Obama administration decides that it will gain political advantage by ignoring federal laws against illegal immigration, states like Arizona just have to take the consequences without complaining.

That proposition–the real essence of the Obama administration’s case–is not one that can survive the light of day. Thus, near the end of Verrilli’s argument, Justice Kennedy cut to the chase:

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

GENERAL VERRILLI: No. We have a legitimate interest in enforcing the law, of course, but it needs to be — but these — this Court has said over and over again, has recognized that the — the balance of interest that has to be achieved in enforcing the — the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations, it involves humanitarian concerns, and it also involves public order and public –

That answer was incoherent, obviously, but not because Verrilli is a fool; rather, because the Obama administration’s position is indefensible. Later, Justice Scalia followed up:

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

GENERAL VERRILLI: No, Your Honor, but what — no, Your Honor, I’m not saying that –

JUSTICE SCALIA: Sounded like what you were saying.

So the Obama administration had a tough day in court today, and deservedly so. Let’s hope that the Supreme Court’s majority opinion in this case delivers President Obama the stinging rebuke that he so richly deserves.