More thoughts on the Supreme Court decision on "Obamacare"

Some time ago the thought occurred to me that, while the individual mandate seemed to be unconstitutional, they could have accomplished essentially the same thing by levying a tax (using Congress's power to “lay and collect taxes” under Art. I, Sect. 8, Clause 1) and providing a refund to those people who bought health insurance. Since I didn't want to give anyone any ideas, I didn't mention this on my blog. Yet, obviously, Chief Justice John Roberts' opinion seems to mean that the Court decided that, in effect, that was what the act essentially did. At first I thought that it was strange to use this Art. I, Sect. 8, Clause 1 power to “lay and collect taxes” because it had not been invoked by anyone defending the act. But in fact, I was wrong in thinking that it had not been invoked. During the oral arguments, Solicitor General Donald Verrilli Jr. was rather equivocal as to whether the penalty for not carrying insurance was a tax.

“General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” Justice Samuel Alito said.

Verrilli said Monday’s argument dealt with the meaning of the word in the context of the 19th century law, the Anti-Injunction Act. Tuesday’s session will explore Congress’ power to impose the insurance requirement and penalty. In that setting, he said, Congress has the authority under the Constitution “to lay and collect taxes,” including the penalty for not having insurance.

Still, he had trouble keeping his terms straight. Answering a question from Kagan, Verrilli said, “If they pay the tax, then they are in compliance with the law.”

Justice Stephen Breyer jumped in: “Why do you keep saying tax?” Breyer reminded Verrilli he should be saying penalty.

“Right. That’s right,” Verrilli said.

So the “lay and collect taxes” argument was used in oral arguments; it simply was not Verrilli's primary justification for the law. And this might have been more relevant if I'd known this dialog took place.

I suppose it's the conservative thing to do

Conservatives believe that the judiciary should defer to elected legislatures and not be “activist judges.” A corollary of this is Chief Justice John Roberts' statement that “It is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

This was stated in a post by Paula Dwyer in the Bloomberg View blog:

Roberts didn't “join the left,” as some bloggers are writing. Nor did he turn his back on the strict-construction crowd, or even wander far from bedrock conservative principles.

Roberts, instead, has lined up with conservatives who are faithful to traditional interpretations of the Constitution. And that means deferring to Congress and the executive branch, even if the laws they've enacted circumscribe some individual freedoms. The right of elected leaders to pass the Affordable Care Act (aka Obamacare) falls well within the existing boundaries of constitutional power, Roberts essentially concluded. And for those who don't like the result, relief should be sought at the polls, not in the courts.

The evidence for how Roberts would rule was hiding in plain sight. He has never been in the libertarian wing of conservatism that is personified in today's Tea Party movement — favoring limited government and states' rights and holding the belief that personal liberty trumps everything else. Instead, he likely drew inspiration from the opinions of a handful of prominent conservative legal scholars and lower court judges. Two are worth mentioning:

In November, the U.S. Court of Appeals for the D.C. Circuit upheld the ACA in a 2-1 decision written by Judge Laurence Silberman, a card-carrying member of the GOP's conservative wing. He wrote that the health reform law “is an encroachment of individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

Silberman also notably argued that freedom from regulation must give way to “the imperative that Congress be free to forge national solutions to national problems.” Interestingly, Silberman didn't rest his legal argument on the powers granted Congress under the Commerce Clause — just as Roberts didn't lean on the Commerce Clause in his majority opinion today. Silberman essentially provided Roberts a path to upholding Obama's signature legislative achievement without further expanding, or even endorsing past expansions, of the Commerce Clause, which liberals have leaned on for decades to adopt the 1964 Civil Rights Act and numerous other laws.

Another likely Roberts muse is Henry Paul Monaghan, the Harlan Fiske Stone professor of constitutional law at Columbia Law School. Among his conservative bona fides: He testified in favor of Robert Bork during his aborted Supreme Court confirmation hearings in 1986. But Monaghan is somewhat of a stickler when it comes to upholding precedent, and it was his opinion that an analysis of settled case law meant that the individual mandate is constitutional.…

In the end, Roberts concluded that any ruling against the health-care law would have been the very kind of judicial activism that conservatives decry. To Roberts, the solution lies with politicians and voters, not his court.

Paula Dwyer is right. As unpleasant as the decision was, it can be rationalized in terms of true conservative principles. If one truly believes that judges should not be activists, Roberts' position makes sense. By grounding his refusal to void “Obamacare” in Congress's taxing power, he did not validate Pres. Obama's over-liberal interpretation of the Commerce Clause, and that part is all to the good.

Another point that needs to be made is that the only reason that the law was ruled constitutional was that it was a tax,, and Michael Medved noted on his blog on The Daily Beast:

Conservatives shouldn’t pretend that the Supreme Court decision on the Affordable Care Act isn’t a victory for President Obama. It is, and the president will naturally claim vindication for his policies.

But for Obama, today’s judgment amounts to a victory in a battle, not the war. To win that war—to block the implementation of sweeping legislation that would cripple the economy and damage the republic—Republicans need to shift strategy, not abandon our goals.

Yesterday, we argued that Obamacare was ill-advised and unconstitutional. Today we know that it is constitutional (the justices get to decide that under our system, not legal analysts on Fox News, or at the National Review, or even at The Daily Beast). But it’s still ill-advised.

And, more to the point, Obamacare is still unpopular. It won’t suddenly become more popular now that the Supreme Court has formally endorsed the Republican contention that Affordable Care Act actually mandates a massive new tax on the middle class. If nothing else, today’s decision makes it officially, undeniably clear that the administration can’t pay for its wildly increased spending programs by imposing new burdens on the wealthy alone. The American people may have been confused on the subject of the “individual mandate” but every citizen understands what it means to face a new tax.

As the campaign unfolds, how can the president continue to deny that he has imposed such a tax when the Supreme Court ruled that he has—and it’s on that basis alone that his signature achievement counts as constitutional?

While conservatives passionately hoped that the high court would euthanize Obamacare on Thursday morning—or at least cut out its heart while encouraging Congress to attempt an emergency transplant—they can at least take comfort in some aspects of the emerging situation.

First, all right-wingers with integrity should feel encouraged by the fact that judicial restraint is alive and well. Justice Roberts’s decision made it clear that he wanted desperately to avoid “legislating from the bench”—and conservatives should of course applaud that instinct. Roberts and other opponents of what Republicans what rightly deride as “judicial tyranny” resisted the idea that nine unelected jurists (or five of them, to comprise a majority) should instantaneously undo 2,700 pages of ridiculously detailed legislation painstakingly passed by 535 elected representatives over the course of nearly two years of debate.

Justice Roberts’s decision made it clear that he wanted desperately to avoid “legislating from the bench”—and conservatives should of course applaud that instinct.

The problem was that helping this new law survive its legal challenges might also lead to a dangerous expansion of the Commerce Clause—suggesting that the congressional power to regulate interstate commerce now meant that the national legislature could compel every American to eat broccoli, as Justice Scalia speculated in oral arguments.

By justifying the law under the taxing power, the court still forbids direct compulsion by Congress concerning individual decisions on broccoli consumption. But the Supremes do say that the feds can impose taxes on every sort of food other than broccoli—so if you don’t decide to eat the green stuff, you’ll have to pay. By the same token, the Supremes say here that the national government can’t force you to buy insurance, but they do have the right to say that if you don’t buy it, you’ll face an extra tax.

But this conclusion also aligns the highest court in the land with the charge that the administration was profoundly dishonest when it argued, again and again, that Obamacare imposed no new taxes on the American people. The decision today put a definitive end to such dissembling. The argument about health-care reform can now focus more clearly on whether the administration plan is worth the crushing costs, without the mendacious pretense that the public would get something for nothing.

This does not mean that I like this decision — I certainly wish he had voided the law. But I understand how a conservative judge could reach Roberts' conclusions. And the result is simply that, just as conservatives who feel that courts should defer to legislatures have often said, the remedy is the ballot box — retire Pres. Obama, and change enough Senators so that a better bill can be passed.

The Supreme Court's health care decision

On first appearance, Chief Justice Roberts' opinion on “Obamacare” seemed to look good — the Commerce clause does not authorize Congress to pass such a law. But as I read further, it became clear that the Court decided that, despite the Obama administration's claim that this was not a tax law, the Court considered it as such, and therefore the individual mandate — because Congress has power to tax when needed to support the general welfare — was constitutional, because the Court has the task of considering an act as constitutional if any Constitutionally-delegated power authorizes it. So Justice Roberts said it was simply a tax on people who do not have health insurance, and constitutional on that ground.

Certainly not the way I hoped it would rule, but explained on that basis it makes some sense. Congress can tax all sorts of things, and though this is not “regulation of interstate commerce,” this was an argument that I foresaw as the one thing that might save it. What surprised me is that the Court employed it even though that was not the basis on which the defenders of the act argued for its constitutionality. I never expected that the Court would say that a clause of the Constitution which was not invoked by those defending the law would be the primary basis for the Court's ruling in its favor.

The Court has spoken. It will not strike down the law. So it is now up to a Congress (and hopefully President) taking into account that the people do not want this law — hopefully elected this coming November — to repeal the most objectionable elements of the law.

Well, Pres. Obama is saying the right thing!

On Monday, in New Hampshire, President Barack Obama made a speech which included the following words:

There are too many people out there who are struggling, too many folks out of work, too many homes that are still under water. Of course, we need to do better. The debate is not whether, it is how. How do we grow the economy faster? How do we create we create more jobs? How do we pay down our debt? How do we reclaim that central American promise that no matter who you are, you can make it here if you try?

And yesterday, Peter Wehner posted the following (in a post entitled “Obama’s Ineffective Reelection Argument”) on Commentary magazine's site (after quoting those words of the President's):

Obama has framed the election in exactly the right way. The problem for the president is that in answering his questions — how do we grow the economy faster, create more jobs, pay down our debt, and reclaim the central promise of America—you could do worse than to say, “Do the opposite of what Obama has done.”

There is something slightly astonishing in Obama — given his staggering record of economic incompetence — pretending he has answers to economic growth, job creation, and cutting the debt. He’s had nearly an entire term as president to show that he has solutions to the challenges facing America; instead, he’s produced the weakest economic recovery on record and failed to meet virtually every goal he set for himself.

The president is making two arguments for his re-election. The first is that after nearly four years of his stewardship, too many people are struggling, too many folks are out of work, too many homes are still under water, and we need to do better; the second is that the same ideas that contributed to our misery in Obama’s first term will lift us out of our misery in his second term.

Good luck with that.

I think that Wehner put it exactly right. President Obama is making it a debate on questions like “How do we grow the economy faster?” “How do we create we create more jobs?” “How do we pay down our debt?” And we've tried his solutions for 3½ years, and they haven't worked. As Wehner put it: “you could do worse than to say, ‘Do the opposite of what Obama has done.’”

President Obama is asking the right questions. The problem is that he can't seem to recognize the right answers. Which is the main reason he must be retired by the voters in November.

The Arizona law on immigration

Yesterday, the Supreme Court ruled on Arizona v. United States, involving Arizona's laws on illegal immigration. And its ruling was split in a way that both sides seem to be spinning to their advantage. I read a post by Marc L. Miller and Gabriel J. Chin called “S.B.1070 rides off into the sunset,” which discussed the decision in the following terms: “At its core, S.B. 1070 is a use of the state police power and state criminal law to enforce and punish federal immigration violators; at its core this is what a majority of the Supreme Court rejected.” Yet, on the same site, Jay Sekulow wrote a post that said: “The Supreme Court’s decision in Arizona v. United States represents an important victory for Arizona and proponents of the States’ authority to protect their borders and citizens when the federal government fails to do so.” Were the two discussing the same decision?

I think, clearly, Arizona failed to get all it sought, but got enough that one can say that “half a loaf is better than none.” Many parts of the law were not challenged at all; the Court's refusal to invalidate the immigration status check provision means that illegal immigrants cannot simply try to get by under the radar. If even a routine traffic stop might mean that they are going to sit in jail awaiting a ruling from ICE, they may find things a bit hotter. But the fact that some other provisions were invalidated (especially the one that illegal immigrants could not work legally in Arizona) does mean Arizona failed to get rid of at least some of the problems that it saw.

The question, “is this half a loaf?” has not fully been answered, though — the effects of this decision will not be ascertainable until the law has been allowed to take effect as fully as the Court permitted. There will still be people charging “racial profiling” and this may lead to further challenges to the law. What really needs to be done is for the Federal government to enforce its own laws.

Circle the wagons?

With the Supreme Court entering its last week before adjourning for the summer, both left and right are making all sorts of preparations for responding to the deecision that is sure to come this week on the Obama health care law. (People seem to have forgotten that this week will also see a decision on Arizona's law dealing with illegal immigrants as well, although the Los Angeles Times, at least, put both together on their site.) I read on one site that Ron Pollack, executive director of Families USA, has written eight different press releases, covering different possible Court decisions. But most people believe that there will not be a possibility of the Court completely upholding “Obamacare.” What a change from Nancy Pelosi's “Are you serious?” response to a question that challenged the constitutionality of that act. The only question is “how much, if any, of the bill will be allowed to stand?”

I like the title of Jonathan S. Tobin's post on Commentary magazine's site: “Liberal Second-Guessing Won’t Make ObamaCare Constitutional.” While the whole post is an interesting one, that should be read, the last-but-one sentence is a very good summary of what he says, with which I agree: “If the bill goes down this week it will be because a majority on the court have realized that a government that is given the power to invent as well as to regulate commerce is a threat to our liberty.”

The outlier

I have been regularly following the polls on the Real Clear Politics site. And I have been noting that Mitt Romney, though still behind on average, was pulling even with Barack Obama. A couple of days ago, the spread was less than 1%. Then, suddenly, the gap opened up a bit - to 2.3%. Given that this is an average of the nine most recent polls, even that small a change is big, so I looked at the details. It seems that one poll, by Bloomberg News, came in, in which Obama leads by 13 percentage points, 53% to 40%! Without that Bloomberg poll, the difference between Romney and Obama is still under 1 point.

This poll seems to have overrepresented Democrats. The Democratic favorable-vs.-unfavorable figures in this poll were 50-43; the Republican, 41-50. I am not certain what it is nationwide, in fact, but these numbers are suspicious. And in the favorable-vs.-unfavorable ratings in the Bloomberg poll, Obama is rated favorable 55-42, and Romney unfavorable 39-48. This is clearly an outlier. In an average of 7 polls (including this one) RCP shows Obama rated favorable 52-44, Romney unfavorable by such a small amount that to the nearest percentage point it's a 43-43 tie! (If you exclude the Bloomberg poll and look at the other six, Obama's favorable-vs.-unfavorable figures are 51-44, Romney's 43.5-42, actually positive!)

Why is this poll such an outlier? I wonder. It doesn't seem to be Bloomberg as such; I've looked at some earlier Bloomberg polls and they do not seem as far out of line. (I've noted that Rasmussen's polls, generally, tend to skew a bit toward the Republicans.) This is merely an enigmatic outlier.

An important ruling by the Supreme Court - Knox v. SEIU

The Supreme Court seems to have decided that they will put off announcing their rulings on “Obamacare” and the Arizona law on illegal immigrants to the very end of the session — another week to go, therefore. But I was not aware that there was another case before them that was extremely important, and they ruled just yesterday on that one. When Scott Walker got through the recall election, it was a big victory over Big Labor, and this decision, in a case called Knox v. Service Employees Int’l Union, Local 1000, is equally significant.

To provide the background, the best thing I can do is to quote Ed Whelan's “bench memo” from National Review Online:

For decades now, the Supreme Court has “countenanced a significant impingement on First Amendment rights” of employees who choose not to join the union that represents the bargaining unit in which they’re employed. Specifically, the Court has ruled that the government may compel nonmembers of a union (under so-called “union shop,” “agency shop,” or other “union security” arrangements) to pay fees to the union to support the union’s activities related to collective bargaining, and that the government may place the burden on objecting nonmembers to affirmatively opt out of paying the costs of the union’s political and ideological activities.

The passage quoted in the first sentence of this post is, in fact, from a nearly unanimous Supreme Court ruling in 1984 that stated that “[i]t has long been settled that such interference with First Amendment rights is justified by the governmental interest in industrial peace” (emphasis added)—and that leveraged that existing “interference with First Amendment rights” to justify additional interference with those rights.

Today’s ruling in Knox v. SEIU is significant less for its specific holding than for the Court’s long-overdue awakening to what it aptly calls “the critical First Amendment rights at stake.” Unions, which have benefited massively from coerced funding, will be screaming about what that reawakening may portend in future cases.

Here’s a quick summary of the legal and factual background to Knox: Under Supreme Court precedent, the government may authorize a union to charge nonmembers a fee that covers the costs both of collective-bargaining activities and of political and ideological activities, so long as nonmembers are informed of, and allowed to deduct from their payment (under an “opt out”), the portion of the costs estimated to be attributable to the union’s political and ideological activities. In June 2005, the SEIU local in California sent out its annual fee statement, which set monthly dues of 1% of gross salary, capped at $45, and estimated that some 56% of its costs would be attributable to collective-bargaining activities. Some two months later, the SEIU local, in order to generate funds to help oppose ballot propositions, raised the monthly dues for a limited period to 1.25% and removed the $45 cap. The union maintained that only those nonmembers who had objected to the annual fee statement could object to the special assessment. Further, despite the fact that the entire increase was intended for political activities, the union maintained that even those nonmembers whose objections it would recognize would have to pay 56% of the increase.

Justice Alito’s excellent majority opinion in Knox (joined by the Chief Justice and Justices Scalia, Kennedy, and Thomas) holds that the First Amendment does not allow the government to authorize a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political activities. Here is a summary of his reasoning:

1. “[W]e do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” The free-rider arguments that those cases have relied on (i.e., preventing nonmembers from free-riding on the union’s collective-bargaining activities) “are generally insufficient to overcome First Amendment objections” and are “something of an anomaly.” “Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions.” It’s difficult to see the justification for an opt-out rule. Indeed, the Court seems to have accepted the opt-out approach “more as a historical accident than through the careful application of First Amendment principles.”

“By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” (Slip op. at 14.)

2. The SEIU “asks us to go farther.” It seeks approval of a procedure under which (a) a special assessment billed for use in electoral campaigns failed to provide a new opportunity for nonmembers to object, and (b) those nonmembers who had previously opted out were nonetheless required to pay more than half of the amount of the special increase, even though the purpose of the increase was to mount a political campaign. This procedure is “indefensible.”

(a) A nonmember can’t make an informed choice about a special assessment that is unknown when the annual notice is sent. It would have been an easy matter for the union to give the nonmember a choice. A refund the following year would not have been fully compensatory, nor would it undo the violation of First Amendment rights.

(b) The special assessment was slated for political purposes, so nonmembers should have been able to avoid paying the entire amount of the increase. The SEIU’s claim that objecting nonmembers ended up with a windfall rests on dubious statistics. Further, the risk that objecting nonmembers might pay too much or too little should be borne by “the side whose constitutional rights are not at stake”—the union. The union “has no constitutional right to receive any payment from these employees.”

While the Court’s previous rulings have substantially impinged upon the First Amendment rights of nonmembers, “we see no justification for any further impingement. The general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail” in the context of this special assessment.

Now that is a powerful statement. And not only was it the opinion of a majority (five members) of the Court, but two more, Justices Sonia Sotomayor and Ruth Bader Ginsburg, agreed with the judgment but Justice Sotomayor wrote a concurring opinion (joined by Justice Ginsburg). So the decision was 7-2 on the main issue. Where Justices Sotomayor and Ginsburg differed from the other five was that the majority would require that nonmembers would only be assessed these charges if they opted in, the two more liberal Justices were willing to keep the current “opt-out” system.

A quote from Fox News' post on the case is relevant:

The court ruled for Dianne Knox and other nonmembers of the Service Employees International Union's Local 1000, who wanted to object and opt out of a $12 million special assessment the union required from its California public sector members for political campaigning. Knox and others said the union did not give them a legally required notice that the increase was coming.

The union, and the 9th U.S. Circuit Court of Appeals, said the annual notice that the union gives was sufficient. The high court disagreed in a 7-2 judgment written by Justice Samuel Alito.

The difference between opting in and opting out was stated in more detail by Trevor Burrus on the Cato Institute's site:

The narrowest question in Knox was whether the notice given by the SEIU Local 100 complied with the Supreme Court’s requirements. There was a broader question, however, pushed by Cato in our brief (joining the Pacific Legal Foundation, the Center for Constitutional Jurisprudence, and the Mountain States Legal Foundation), on whether only having the ability to “opt-out” of political spending (rather than to “opt-in”) violates the First Amendment (Tim Sandefur of PLF offers his thoughts here). Opting-out presumes that the non-members want to engage in the union’s political advocacy, and this seems to place the burden on free speech on the wrong party.

In a decision that rings with a chastising tone directed at the union, Justice Samuel Alito affirmed that opting-out can be a First Amendment violation. In his words: “Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an opt-out requirement at all.” Justice Alito also adopts our argument that balancing the rights of individuals with the “rights” of unions is the wrong way to look at the issue. Unions have long argued that complying with administrative requirements to give notice to non-union members impinges on their ability to be effective political advocates. Moreover, the unions argue, sometimes it is not possible to accurately determine what percentage of their funds will be used for political advocacy and “there is at least a risk that, at the end of the year, unconsenting nonmembers will have paid either too much or too little.” “Which side should bear the risk?” asks Justice Alito. “The answer is obvious: the side whose constitutional rights are not at stake.”

In this case, the First Amendment violation was particularly troubling because the union exacted money from nonmembers in order to defeat a California proposition that would have bolstered nonmembers rights. “If Proposition 75 had passed,” writes Alito, “nonmembers would have been exempt from paying for SEIU’s extensive political projects unless they affirmatively consented. Thus the effect of the SEIU’s procedure was to force many nonmembers to subsidize a political effort designed to restrict their own rights.”

Although the decision does not go so far as to require that unions must always use an opt-in procedure when extracting political war-chest money from nonmembers, it takes a very strong step in that direction, as Justice Stephen Breyer argues in dissent. Opting-in will only be required for such “special assessments” as in this case or for a general “dues increase.”

Finally, one of the most interesting posts I saw was by Noah Kristula-Green, who posts on the Daily Beast, because it shows that this may presage a ruling on “Obamacare.” After quoting part of Ed Whelan's posting earlier mentioned, he writes:

The mandate in Obamacare is all about the free rider problem. Further, opting out of the market for insurance sure sounds like this. We will know soon but the language in this union dues case does not bode well for Obamacare.

I think that Knox v. SEIU is one of the most important cases decided this year by the Court. And the SEIU must be particularly unhappy for one reason. As Becket Adams said in a post on The Blaze:

... although the SEIU was able to convince California’s left-leaning Ninth Circuit that because the original notices said assessments were “subject to change” that they were in the clear, the Supreme Court disagrees.

Justices Sotomayor and Ginsburg agreed with the judgment, written by Justice Alito, and ruled in favor of Knox. The final ruling was 7-2; Breyer dissented, joined by Kagan, according to SCOTUS blog.

Wait – Justices Sotomayor and Ginsberg ruled against the SEIU?

Whoa.

“All that money spent electing Obama, and his first SCOTUS pick rules against #SEIU,” the Washington Examiner’s David Freddoso tweeted when news of the decision broke.

The SEIU was all for Justice Sotomayor, when President Barack Obama proposed her. But even she realized the union was overstepping!

Obama's assault on the rule of law

As I said in a recent post, President Obama's unilateral decreeing of a substantial portion of the DREAM act brings the issue of constitutionality to the fore. I would like to add some words to this, taken from a posting by Andrew C. McCarthy on PJ Media:

In continuing the dramatic shift from American constitutional democracy to rule by executive fiat that has marked his tenure, President Barack Obama now claims that the illegal aliens, to whom he purports to grant what effectively is amnesty, are “Americans … in every single way but one — on paper.” That is false. They are not Americans under the only thing that matters, the thing the Obama administration has chanted like a mantra — while riding roughshod over – since its very first day in power: the rule of law.

The Constitution and congressional statutes are written on parchment. That is the only relevance of “paper” in this equation — as the “hard copy” of our social contract and of the laws enacted pursuant to it. Under the Constitution, Congress, not the president, is endowed with such a power: “To establish an uniform Rule of Naturalization.” Congress exercises this power by passing laws. Under the Constitution, which Obama took an oath to preserve, protect, and defend, and under the laws it is his duty to execute faithfully, illegal aliens — no matter how sympathetic their plight, no matter how blameless they may be for the illegality of their status — are not citizens of the United States. They are not Americans. Period. It is not “paper” that separates them from our body politic, it is the law, of which Obama is supposed to be servant, not master — as I argued in this September 2011 essay for The New Criterion: “The Ruler of Law — On ‘Justice’ in the Age of Obama.”

Nevertheless, immigration is only the context of the president’s latest usurpation. It is a critically important issue, yes, but the real gravity of what Obama has done lies not in the subject matter of his edict but in the authoritarian assumptions of its issuance. They transcend mere arrogance: the president proposes to eviscerate our constitutional system. He claims nothing less than the dictatorial power to pronounce what the law is. This usurpation, moreover, complements the dictatorial powers he has already claimed to enforce only the laws of his choosing and to use the police powers of his office to deprive the sovereign states and the people of their constitutional prerogatives and rights.

To be sure, a president has not only the authority but the duty to refrain from enforcing congressional statutes that violate the Constitution. Presidents are no less duty-bound in this regard than the federal courts, which are obliged to hold that such enactments are null and void when the question arises in litigation. That, however, is not what Obama is doing.

As John Yoo observes, there is no conceivable argument that the federal immigration laws are constitutionally suspect. Obama simply rejects them as a matter of policy preference. That itself is a blatant violation of his constitutional oath.

Lest we forget, the president of the United States is the only federal official required by the Constitution to swear, as a condition precedent to assuming the vast powers of his office, that he will “faithfully execute the office of president of the United States, and … to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Nor ought we forget that every nominee to the Supreme Court and the office of attorney general is grilled by the Senate regarding his or her willingness to abide by and enforce those laws and precedents with which he or she, on policy grounds, disagrees. It is a bedrock principle that once the people’s representatives enact a law to which there is no plausible constitutional objection, government officials must honor that law — regardless of their personal views about it — unless and until it is repealed or amended through the process prescribed by the Constitution.

Nor can prosecutorial discretion remotely justify Obama’s gambit. Resources are finite. Practicality demands — and the law acknowledges — that good-faith judgments must be made by the Justice Department and other Executive Branch agencies regarding which violations of law are a priority to address and which may go unaddressed. President Obama, however, is not saying the Executive Branch lacks the resources to enforce the immigration laws. He is proclaiming that he chooses not to enforce them.

Moreover, he is not simply refraining from law enforcement. He is affirmatively obstructing the states from enforcing their sovereign right to police their territories. He furthermore proposes to confer positive benefits on a class of illegal aliens in order to legitimize their status, something it is in the power only of Congress to do and something which Congress — having considered the matter carefully, and having heard the objections of the American people — has specifically declined to do.

This is another instance of Obama’s brazen lack of regard for the system he is duty-bound to honor: He claims he cannot sit back and wait for Congress to act; but as he well knows, lawmakers have acted: They said “no.”

Obama is not merely failing to enforce the immigration laws. He is destroying the system on which our liberty depends, a system he swore to safeguard. This oath was a solemn one, of far greater consequence than, say, a pitcher’s oath to testify truthfully to Congress about steroid use — an incident over which the federal government has spent millions of taxpayer dollars in an effort to convict Roger Clemens of a felony, notwithstanding the utter absence of any federal interest in the integrity of professional baseball.

We are entitled to conclude Obama defrauded the American people in taking his oath of office. He prefaced the oath by unabashedly declaring his intention to “fundamentally transform the United States of America.” He followed the oath with a series of usurpations designed to do just that. This highlights another mendacious aspect of Obama’s pandering to the hard Left on illegal immigration and, symmetrically, on election fraud (the policing against which he similarly obstructs).

The president says the young illegal aliens he has in mind are “Americans” except on paper. But who is Obama to say what an American is? By his own self-heralding, he is here to transform the United States. His mantra is “change.” He has stacked his Justice Department and the rest of the Executive Branch sprawl with progressive operatives whose obsession is to transmogrify America culturally, economically, and politically — to alter our very nature. When Obama talks about someone being “an American” or something being one of “our values,” he is not talking about the America that is; he is invoking the authoritarian, collectivist, redistributionist, post-sovereign, transnational America of his design.

It ought not matter whether we agree or disagree with Obama’s policy objectives on immigration — or the glut of areas from the use of force to labor relations to state sovereignty to socialized medicine to debt to diet, etc., on which he presumes to dictate rather than honor the law. Our social compact as a body politic demands that policy objectives be pursued within a system of divided powers in which the prerogatives of the president and of the federal government are strictly limited. Obama rejects this bedrock principle. Therefore, we must reject him.

If he is not removed from office — and if, while he retains office, politically accountable actors at the federal and state level continue their feckless failure to use their constitutional muscle to block him and rein him in — this will no longer be America. Not even on paper.

So much of what McCarthy has said agrees with my own thoughts that I repost the page in full. But the key sentences of this post deserve emphasis: “Our social compact as a body politic demands that policy objectives be pursued within a system of divided powers in which the prerogatives of the president and of the federal government are strictly limited. Obama rejects this bedrock principle. Therefore, we must reject him.” That is the big issue to be settled in 2012.

Michael Bloomberg's unfortunate decision

Although Mayor Michael Bloomberg of New York City has not formally decided it yet, it is clear that he has decided to remain neutral in 2012, as he did in 2008. According to Michael Barbaro of The New York Times,

Mayor Michael R. Bloomberg of New York has remained coy about whether he plans to endorse a presidential candidate this year, even as Mitt Romney and President Obama aggressively court the billionaire media mogul.

The most that the mayor and his aides have said is that Mr. Bloomberg, who did not endorse in 2008, is carefully weighing his options this time around.

But during casual conversations at charity event a few days ago, Mr. Bloomberg was far chattier — and candid — about the subject, according to three people who overheard him.

Mr. Bloomberg said that he believed Mr. Romney would probably be better at running the country than Mr. Obama, according to two guests.

But Mr. Bloomberg said he could not support Mr. Romney because he disagreed with him on so many social issues, these two people said. The mayor mentioned two such issues: abortion rights and gun control.

As a result, Mr. Bloomberg said, he intended to remain neutral, said one guest.

(There is more to the post, but this is the important point. Read the whole post if you wish.) Now I happen to agree with Mayor Bloomberg in what he said about such social issues as abortion and gun control. But so did the previous mayor of New York, Rudy Giuliani. And, like Mayor Giuliani, I feel that President Obama's stance on important issues like the economy overshadows such things as those social issues. Mayor Giuliani endorsed Gov. Romney way back in April. It is unfortunate that Mayor Bloomberg will not do so.

Changing the issue

Because of President Obama's decreeing a substantial part of the DREAM act unilaterally, without authorization by Congressional action, he has changed the issue. It is no longer a question of whether the DREAM act is desirable. It now has become a question of separation of powers under the Constitution.

Even someone who wants to see the DREAM act become law can oppose this act by the President, because the Constitution (Art. II, Sect. 3) states that the President “shall take Care that the Laws be faithfully executed.”

When Pres. Obama decided that he would not support the so-called “Defense of Marriage Act” in the courts, he had a constitutional basis for doing so — he believed (and I believe rightly) that the DOMA was unconstitutional, and that he was supporting the higher law (the Constitution) against the lower law (DOMA). In this action, I supported him. But the President has not claimed that our immigration laws were unconstitutional. Therefore he has an obligation under Art. II, Sect. 3 to “take Care that [this law] be faithfully executed.”

As I earlier said, this should be cause for impeachment, but will not, because the political facts of life will prevent it — none of the Democrats in the Senate will vote to convict, and they constitute a majority, not just the ¹/₃ that can kill an impeachment.

At least one Congressman says he will sue. This is a worthwhile effort, but the way our court procedures work, it will take years for this suit to get through the court system. The much faster procedure is to retire Barack Obama this November.

This is NOT Chicago!

In this country, there are city charters that give the mayors a lot of power and others which have relatively weak mayors. I understand (though I've not read the charter in any detail) that Chicago has a charter that, on its face, provides for a relatively weak mayor. But in fact, not only two generations of Richard Daleys, but even earlier mayors of Chicago, found it possible to exercise far more powers than Chicago's charter allowed them. Chicago has a “weak-mayor” charter, but it has had very strong mayors in fact.

Why is this important to us, outside the city of Chicago? Because we currently have a President, Barack Obama, who may have been born in Honolulu (despite “birther” claims), but whose political life has all been spent in Chicago. And he seems to think that the national government is to be run like Chicago's — with an executive who is not bound by a Constitution's limited allocation of powers. First he simply construed the Constitution in ways it had never been construed before, like making “recess appointments” when the Senate was not really in recess but simply off for a weekend. Now he's actually creating new legislation, which Congress has never approved (and in fact voted down) — as in his recent unilaterally-implemented DREAM Act. But this is not Chicago. We believe in our Constitution. And hopefully the American people will tell Barack Obama this, in the only way that will get it across to him, by electing someone else this November. And the obvious choice for “someone else,” of course, is Mitt Romney, who will restore this country to Constitutional government.

Obama's decreeing the DREAM Act

Fred Bauer yesterday posted the following on his blog, A Certain Enthusiasm:

Today, the White House offered a de facto amnesty of an unknown number of illegal immigrants. The AP has some details:

The policy change, announced Friday by Homeland Security Secretary Janet Napolitano, will affect as many as 800,000 immigrants [though it could be far more---FB] who have lived in fear of deportation. It also bypasses Congress and partially achieves the goals of the so-called DREAM Act, a long-sought but never enacted plan to establish a path toward citizenship for young people who came to the United States illegally but who have attended college or served in the military....

Under the administration plan, illegal immigrants will be immune from deportation if they were brought to the United States before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school or earned a GED, or served in the military. They also can apply for a work permit that will be good for two years with no limits on how many times it can be renewed.

The policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for extended periods.

A key point raised by Daniel Horowitz: no law by Congress has been passed enabling this immunity from deportation or the granting of work permits. Whether one agrees with the result of a selective amnesty that creates a class of permanent non-citizen workers or not (especially in a time of high unemployment), we should pay attention to the implications of process here.

If the president can claim the ability not only to selectively halt the prosecution of various laws but also to create new legislative mechanisms for work permits for immigrants, what limits are there to the president's power? Could the president just choose to stop enforcing civil rights laws and create new standards for voting instead? Could the president choose to avoid collecting taxes at the legally specified rate and instead create new tax rates? Could the president set separate new rates for Republicans or Democrats or women or men? (After all, the administration's new immigration rule treats one age group differently from another.)

President Obama's move could have radical implications for executive power. It could also have implications for the pending Supreme Court case about Arizona's recent immigration law. The federal government's brief there suggests that the executive branch has a broad latitude in deciding what laws to enforce and how to enforce them. In this move, the Obama administration has taken that principle to a new level, not only choosing not to enforce certain laws but also creating new measures. If the Supreme Court endorses the administration's position for Arizona outright, some on the court may feel that they are giving the administration a green light to extend its executive reach even further.

It seems that President Obama feels he is beyond the Constitution: he can create a law that Congress has not passed. There will not be a 2/3 vote in the Senate to remove him, so impeachment is not going to happen, but this is really one more reason that President Obama must be retired. Our processes have to wait until an election in November and an inauguration in January, but this would be faster than going through the courts. And who would have standing to sue?

Will the court rule Monday?

I have seen some articles in the paper suggesting that the Supreme Court may rule as soon as Monday on “Obamacare.” It has been hard waiting these past few months. It is to be firmly hoped that the act will be completely thrown out, so that we can start again from scratch. While there are good features, everything is so intricately interlocked that we can't just pick and choose which clauses of the act will be thrown out — and as Judge Roger Vinson of the U.S. District Court for the Northern District of Florida determined (though he alone has so ruled) the absence of a severability clause implies that the entire law must go on the basis of his determination that the mandate is unconstitutional. But we cannot get into the heads of the nine Justices. Some may feel that there are parts of the act worth saving, and be reluctant to throw the whole bill out. After all, except for Judge Vinson, other judges who did rule the individual mandate unconstitutional still would retain the rest of the bill.

Really, this wait is killing me.

Obama's economy

At a fundraiser, President Barack Obama accused Gov. Mitt Romney of running a campaign with no message, doing nothing but casting blame on the president for the economy:

“The challenge is because folks are still hurting right now, the other side feels that it’s enough for them to just sit back and say, ‘Things aren’t as good as they should be and it’s Obama’s fault,’” the president said at a fundraiser at a private residence in Maryland. “And you can pretty much put their campaign on, on a tweet and have some characters to spare.”

Well, Mr. President, that is a message. The point is that you have been President for three years and some months, and you had a Democratic Congress for the first two years of that period, and the economy is not so great. What you keep trying to do is divert the American public from the terrible economic situation because you know that if (to quote a campaign strategist for the Democrats in 1992) “it's the economy, stupid,” you cannot win this election. The reason Mitt Romney and the Republicans are saying “Things aren’t as good as they should be and it’s Obama’s fault,” is that things aren’t as good as they should be and it is Obama’s fault.

Once more, the District government acts stupid

The headlines in the Washington Examiner say “D.C. approves 4 to be medical marijuana dispensaries.” As if marijuana had a legitimate medical use. Among the organizations opposing marijuana, there is the American Society of Addiction Medicine, for example, which issued a report last March (follow the link).

Let's face it. “Medical marijuana” is simply a way for people looking to get high to justify it by claiming it's for “medical” use. it's a dangerous drug, with no reason to legalize it, and once more, DC is stupid.

Another guest post

Yesterday I saw another post that was just too good for me not to repeat here. It was written by Howie Carr of the Boston Herald:

It’s no fun being a moonbat anymore.

You didn’t get invited to Barney Frank’s wedding in Newton. That “Elizabeth Warren for Massachusetts” bumper sticker on your Prius has become a magnet for roadway ridicule.

But worst of all is what’s happened to your hero, Barack Hussein Obama. The emperor has no clothes. Mighty Casey has struck out.

Everything was so much simpler when George Bush was president.

Was it a mere four years ago when Barack modestly predicted that just his nomination alone would be the moment “when the rise of the oceans began to slow?” On Friday — exactly four years and four days after the seas started receding — the modern Moses conceded that housing in the U.S. is “underwater,” and that he hasn’t done squat about it.

But hasn’t he brought down the gas prices to $3.50 a gallon? Only $1.61 more to go and they’ll be back to where they were on Bush’s last day in office.

How can Barack be trailing the vulture capitalist Mitt Romney in Michigan? Don’t these bitter clingers read The New York Times [NYT]?

Even Chris Matthews’ leg has stopped tingling.

In 2008, everything was, you’ll pardon the expression, black and white. Predator-drone attacks under Bush — unconstitutional genocidal terrorism. Five times as many Predator-drone attacks under Barack — brilliant strategy by our wartime president.

Whatever happened to anti-war candlelight vigils? You see them on TV about as often as you watch military coffins being unloaded at Dover AFB.

Which is to say, never.

Campaign spending was never an issue in 2008 when Barack was grinding McCain’s moneymen into the dust. Then money was the mother’s milk of politics. Now, this George, er Mitt Romney, is lowering the boom on His Wonderfulness.

A national scandal is what these super-PAC’s are. Somebody call George Soros.

As a loyal moonbat, you’d love to respond to Jim Messina’s endless email money grovels. But the trust funds Pater and Mumsy set up for you just aren’t getting nearly the returns they did in the bad old days when Dick Cheney was unleashing hurricanes to ravage New Orleans.

The economy is “unexpectedly” sliding yet again, as the network anchors always say, but it’s not Barack’s fault. It can’t be. He went to Harvard. It’s all caused by those “headwinds” from Europe, that’s what Jim Cramer blamed it on this week. And before that it was the warm winter, or the Japanese tsunami, and don’t forget the early Easter, or was it the late Easter and, and … George Bush!

Doesn’t anyone remember Bush’s jobless recovery — when unemployment was 4.5 percent? Now 3 million citizens have vanished from the workforce and unemployment is 8.2 percent. It’s the new normal.

Whatever happened to “9/11 — An Inside Job?” Michael Moore and Cindy Sheehan have vanished into the Witness Protection Program. Nancy Pelosi is babbling about ghosts in the White House. Guys in white coats are chasing the vice president with a net as he raves about “crops that don’t depend on soil, water or fertilizer.”

What a drag it is, being a moonbat.

I must say, I wish I could write as well. But let my echoing his column substitute.

Even "progressives" are spotting Obama's fraudulence

Thanks to Tom Bowler's “Libertarian Leanings” blog, I saw a blog post by a “progressive” named Taylor Marsh:

… What is Pres. Obama fighting for besides himself, the only cause that makes him rise up to do anything?

The guy can’t even find a slogan, stuck with We’re Not Done Yet.

God help us all.

Barack Obama didn’t find the cause of unions important to fight for or the need to make the election results, even in a loss, an important reason for people to rise up and protect the place where the middle class was born. A living wage came about through unions, with Scott Walker continuing the gutting of them begun by Ronald Reagan, on behalf of corporations, the place behind which Barack Obama stands as well. If you’re not standing with the unions manning the barricades you’re no good to them, which Obama proved conclusively through Wisconsin.

The line “What is Pres. Obama fighting for besides himself…?” evinces that Ms. Marsh finally gets it: Pres. Obama has no cause except more power for himself. He will embrace “progressive” causes if he thinks they will advance the chances of his re-election, and eschew them if they would not. And thus, she says, a bit further down in her blog post:

I remain fascinated that anyone pretending to have Democratic, progressive, let alone liberal, political views cares whether Pres. Obama wins or loses. What it’s going to take for people to understand he’s not fighting any of your battles, but only waging his own for himself, is unknown at this point, but maybe when he shoots for legacy on the “grand bargain” fence of history people will tune in and, perhaps, wake up. Then it will be too late, though it already is and was a long time ago.

And Ms. Marsh is pro-union — that whole blog post just drips with comments about how great unions are. She and I may agree on very little, but she's found out what I saw years ago — President Obama is “only waging his own [battle] for himself.”

Back to Tom Bowler. You really should read that post of his. Because he makes it clear that the same applies to that “progressive” icon who is Taylor Marsh's heroine — Elizabeth Warren. Bowler says:

Warren is a working class hero who railed against the bank foreclosures, but who also made hefty profits flipping foreclosed homes in Oklahoma. I suppose that's pretty typical of today's heroes of the proletariat.

(Elizabeth Warren purchased this Oklahoma City home at 200 NW 16th Street for $30,000 in August 1993, then sold it for $145,000 five months later.)

I don't always agree with Tom Bowler's posts — but this time it's a home run for him.

Yet more about Wisconsin

One thing that needs to be pointed out about the fuss over Gov. Scott Walker's reforms in Wisconsin: Prior to the reforms, people had union dues withheld from their pay whether they wanted to be members of the union or not. So, as of early 2011, the membership of the Wisconsin chapter of AFSCME (the main public-employee union) was over 60,000. When the compulsion to contribute to the union via withheld dues was ended, the numbers fell — and by February of this year was less than 30,000. (For the exact numbers, see this page.) This means that the majority, at least of those public employees who were under AFSCME, left when they got a chance. They were certainly not voluntarily contributing their dues. Was such coercion fair? I would say no! (The union representing the teachers, according to data from the same source, didn't quite lose as much of a share of its membership, but from a starting membership of 17,000 lost about 6,000 — more than a third.)

Clearly, in many states, the union membership that there is gains numbers from coercion — union-shop contracts, legal in most of the states, which make people join a union, whether they want to or not, in order to keep their job. We really ought to have a national right-to-work law, which would outlaw such contracts, though that will never happen as long as the unions own the Democratic Party; and the Senate, at least, cannot act unless over 60% can be mustered on one side of a question.

And even many people who belong to unions see Scott Walker's role as positive. He actually got 38% of the votes cast by union members in the recall election! That means that almost 2 out of every 5 union members agreed that reforms such as Gov. Walker's were a good thing. That's just looking at union members, who would appear to be a sample biased against any action that weakens organized labor.

These are amazing facts. It certainly means that organized labor is losing the support of the workers it claims to represent. And that is a good thing.

Setting a few things straight

I have been praising Gov. Scott Walker rather effusively in recent posts, because he has done some good things for the State of Wisconsin. But I do want to make things clear. There is a lot about Scott Walker that I do not like.

For one thing, he is opposed to mass transit improvements. He's been very negative in those matters when they have come up in Wisconsin, and I don't like that. He is also one of the strongest anti-abortion politicians I've run across. So I don't consider Scott Walker to be exactly the kind of Republican I'd really want to see in power.

But if you have read enough of my posts, you will be aware that one thing that gets me very much worked up is the behavior of organized labor, and Gov. Walker has been more willing to take them on than most executives in this nation. And for this, he gets my strong support.

The comments on Wisconsin's recall election

Not too surprisingly, the Left is shocked at Scott Walker's winning the recall election, and trying to minimize its significance by calling it a “narrow” victory (it isn't; a Republican win by 7 points in a Democratic-leaning state is pretty major in our political system!) and pointing out that a lot more money was spent by Walker than his opponents ignoring a lot of union money that was wasted on Kathleen Falk's primary campaign and other issues that were not, technically, referring to recalling Walker but certainly implied it). The Right is happy (and though I'm only slightly right of center, I include myself in this group) but still concerned that many of those people who supported Walker for reasons of fairness will still cast their votes for Obama in November. But today I saw a post, dated yesterday, entitled “Get Serious About Governing, Democrats” by Matt Welch (someone I'd put in the rightist camp, of course), Editor in Chief of Reason magazine, that does a good job of summarizing the arguments, so I'll repeat it here.

When politicians and activists warn that this or that election is a stark, Manichean choice between the champions of good and the malefactors of evil, many of us on the sidelines of political tribalism tend to wearily roll our eyes. But what independents tend to underappreciate is that the artificially raised stakes are a main part of the consumer attraction in the first place. It makes politics more meaningful, even fun, when you imagine that you are up against a pure form of rapacious evil.

Wisconsin has been the front line of America's Democrat vs. Republican, blue vs. red rhetorical war for 16 months now, ever since newly elected Republican governor Scott Walker pushed through a budget repair bill that withdrew government from the union dues-collecting business for public employees and removed the collective bargaining power of most government unions, an act that triggered historic public protests. So on the morning after Walker survived a labor-led recall election by a higher margin than he originally won office in 2010, there were plenty on the left grumbling darkly about the Dark Lord rising over our once-free country.

At The American Prospect, Harold Meyerson compared Walker's actions to a “jihad” and suggested (paradoxically) that a post-union labor movement might just resort to rioting. Walker “wins one for the plutocrats,” Joan Walsh lamented at Salon, without really explaining how the monocle-wearers could win 38 percent of the union vote.

Such demonization was of a piece with leftish commentary in the run-up to the recall. Esquire's Charles P. Pierce described Walker as a “goggle-eyed homunculus hired by Koch Industries to manage its midwest subsidiary formerly known as the state of Wisconsin,” which would now be subject to “the habits of oligarchy.” Even more grossly, The Nation's Katrina vanden Heuvel wrote in The Washington Post that Walker's policies were intended to “cleanse the electorate of people who don’t look, earn or think like him.”

It's almost comforting, in such a florid, menacing universe, to wallow in righteous defeat. But I would suggest that if progressives want to change minds and political outcomes, they might try a different strategy: Instead of merely rallying opposition to irredeemable bogeymen, how about providing a concrete, numbers-rich alternative to the brutal budgetary math Walker's union-tweaking policies were designed to address?

It is a fact that the majority of state budgets are in the red, that overall state spending increased by 81 percent from 2002-2007, and that rare-in-the-private-sector defined benefit pensions for government workers (along with post-retirement medical benefits) are a large and growing portion of state and local budgets, even while being chronically underfunded. The situation is terrible now, and will be much worse in the near future. So, progressives: Tell us concretely what you plan to do about this.

The state of California's public-sector pension contributions have increased 304 percent in a decade, up to $2.2 billion of a $91 billion budget, and growing faster by the minute. Pension contributions account for 20 percent and 27 percent, respectively, of the city budgets of San Diego and San Jose, whose citizens have responded by passing initiatives asking government workers to contribute more to their own pension and health care. Cities from California to Rhode Island have initiated bankruptcy over pension costs.

So, progressives: What is the right percentage of a government budget to be spent on public sector pensions? If this requires that cities and states simply need to come up with bigger budgets (through increased taxes) precisely how much bigger would be appropriate? If you don't want to increase overall budgets, what other government services are you willing to cut?

If the past four years of public debate are any indicator, we won't soon see concrete answers to any questions like these. Progressives almost never tell us how big they think the government should be. It is easier to make grand and vague gestures on behalf of working Americans than it is to justify the math of public sector unions negotiating with union-backed politicians to spend the money of non-union taxpayers, which may help explain why Americans are solidly in favor of public employees paying more of their own freight. And in all the hot air spewed about the Wisconsin recall, where were the positive arguments for all the citizen benefits received in the prior run-ups in Badger State spending?

As long as Democrats keep dodging these questions, no amount of plutocrat-baiting will reverse their political fortunes. Governments at all levels are out of money. Progressives are going to have to come up with a better response to that than saying “we were robbed.”

This is a very nice summary, and I think it describes the situation very well.

And the numbers are (almost all) in

When I posted my last one last night, only a quarter of the precincts were in. Scott Walker had a better than 60-40 lead. Now, with 99.9% in, the margin is down to 53-47. Still big enough that one can say that the people have spoken and defeated Big Labor, but nowhere near as big a margin as what it first seemed.

It is great to see that in a “progressive” State like Wisconsin, the unions got their come-uppance. And it was even better than that: Tom Barrett, who was the candidate that had to carry their water, was not even their original choice. The unions' favorite candidate didn't even make it through the Democratic primary. She had vowed, if elected Governor, to veto any budget that did not restore the unions all the rights that Walker had taken away; Barrett was somewhat more moderate. So even in the Democratic primary, the Wisconsin public refused to vote the unions' way.

Unfortunately, there was one note that was not so good — many of the Wisconsinites who voted for Scott Walker did so simply because they felt that a recall was going too far and should be reserved for official misconduct, so they are still Democratic-aligned as far as November is concerned, and Obama remains a big favorite in Wisconsin. But Wisconsin is, as I said earlier, a “progressive” State. Mitt Romney does not have to win Wisconsin, and if he wins the presidency, it will probably still be while losing Wisconsin. So those results are not too disturbing. For now, let us just rejoice that — as I said earlier — even in a “progressive” State like Wisconsin, the unions got their come-uppance.

The Wisconsin results

As I write these words, only about ¼ of the vote in Wisconsin has been counted, but Scott Walker's lead seems quite impressive -- over a 60-40 margin. Even if a lot of the vote that comes in later is more Democratic, it does appear that Big Labor's attempt to bring down Gov. Walker has failed. Three Governors have been subjected to recall elections in United States history; the first two were actually removed. But Scott Walker, the third, will serve out his term. It looks as if sanity has prevailed in Wisconsin. And Big Labor has been shown the door. Let us hope that the rest of the year will be as good for the people as this has been.

The volatility of the polls

I don't think I've ever seen the polls as volatile as they are now. Real Clear Politics shows a CNN Poll taken May 29-31, showing Obama leading by 3 points, and a Rasmussen poll taken May 30-June 1, showing Romney leading by 4. That's a difference of seven points, and the polls are supposedly only a day apart with a 2 day out of 3 overlap. Either one of them is selecting poorly (or both are!) or the public cannot be trusted to give their true intentions.

But if the numbers are this volatile, can we put any credence in the polling results? I think that about all we can say is that, as of now, it's close. And a lot will happen anyway between now and November. I'm sure that Tuesday, when Scott Walker either wins the recall election, as most polls say, or loses it to Tom Barrett, there will be some movement in other polling numbers: if Walker wins, people will realize that you can fight Big Labor, for example, while some weak Obama supporters may reconsider their choice. Then the Supreme Court will be heard on Obamacare and the Arizona illegal immigration law. If the Obama administration loses on either or both, will it energize the Left (who might want to redo the Supreme Court majority by giving Obama time to appoint new Justices)? Or will it energize the Right, who will point to Obama's assault on the Constitution and make them even surer they want to get rid of him? And, of course, if the Court goes the opposite way, we would see possible reactions that are mirror images of these.

There is a good chance that, by July 1, the polls will look a lot different from the figures we see today. And certainly by November, a lot of people will change their mind.

What is his problem with Romney?

Rick Bayan is a fellow who runs a blog called The New Moderate, with which I agree on some points and disagree on others. His concept of “moderation” has some ideas that look close to those I hold myself and others I look at aghast. And Thursday I saw a post which is one of those I cannot accept. It was entitled, “Romney Bags the Nomination While a Better Man Drops Out.”

Anyone who reads this blog knows that I've been, in this election cycle, a strong supporter of Mitt Romney. So clearly, you can see why Bayan's title alone distressed me. But I wondered who the “better man” was that Bayan was praising, so I read it and found that he was talking about Charles Elson “Buddy” Roemer III, a former governor of Louisiana who had first sought the Republican nomination, and later, when it was clear that nobody considered his candidacy as a serious one, tried for the nomination of Americans Elect, a quixotic “moderate” group that wouldn't even call itself a party, and foundered when it found that its nomination process didn't work. The timing of Roemer's withdrawal is clear. While he refused to support Mitt Romney, the fact that he gave up his candidacy only two days after the day that Mitt Romney clinched the GOP nomination is clearly a confession that for Roemer to continue can only help President Barack Obama, by siphoning off votes from Romney. (I wish that Gary Johnson, another erstwhile Republican nomination seeker who got about the same amount of attention as Roemer, had come to the same conclusion.)

But Bayan's title for his post says it all: Rick Bayan just can't accept Romney as a voice of moderation. [Among other things he says in the post is “...was Romney the best candidate the GOP could have produced? No again. He wasn’t even the best Mormon candidate. (That honor belongs to Jon Huntsman, who apparently was too sensible and articulate to make a dent among Republican voters.)” Also, “Romney is the kind of moderate who gives moderates a bad name.”] He would have preferred — he actually says this in the post — Roemer.

While Bayan might think that Huntsman or Roemer would have been a better GOP candidate than Romney, it is important to recognize that no politician can accomplish a thing unless he can get elected. Neither Buddy Roemer nor John Huntsman, estimable though they might be in Bayan's eyes, was able to convince any number of Republicans that he had a serious chance of getting the White House back from Barack Obama in 2012. Mitt Romney did. Obviously, though Bayan didn't see in Mitt Romney a credible voice for the American political center, millions of others did.

Certainly, while I like much of what Rick Bayan says, this post of his is not included. And I will continue to support Mitt Romney enthusiastically in the hope of showing Barack Obama the exit from the White House.

One more nail in the coffin of DOMA

A three-judge panel of the First Circuit Court has ruled the so-called “Defense of Marriage Act” unconstitutional. Unfortunately, it is unlikely that this will be the end of it; one of the few things I strongly dislike about the current Republican leadership in the House of Representatives is that it has taken up the cause of the homophobic bigots of this country, and has retained legal counsel that will probably appeal this verdict, even though the Obama administration will not. But given that this ruling was unanimous, it gives hope that the Supreme Court will let this decision stand.

I really cannot see any justification for DOMA. Marriage law has historically been a matter for the states, and the only case where the Supreme Court has invalidated a State law has been to keep a State from restricting marriage. (See Loving v. Virginia.)

So far, this is only one more nail in the coffin of DOMA, but there is only one more step available. If it is appealed to the Supreme Court, we will have to await a final decision.

One thing I find somewhat ironical is the stand of a lot of “conservative” columnists, who might in other cases cheer a Court's setting aside of a Federal law attempting to interfere with State prerogatives, but who take the other side here — even taking Pres. Obama to task for refusing to defend DOMA! But Pres. Obama is sworn to uphold the Constitution, and if he believes DOMA to be unconstitutional, he is doing exactly the right thing! (Suppose a “conservative” was in the White House, and a law under attack on constitutional grounds was one that conservatives thought to be unconstitutional. Should the President defend that kind of law too?)