Is Ted Cruz ineligible for the Presidency?

An argument has been made that since Ted Cruz was born in Canada (of an American mother and a Cuban father) he is not a “natural born citizen,” and therefore ineligible under Article II of the United States Constitution for the Presidency. This question was addressed at some length by Daniel Jack Williamson, whose “Buckeye RINO” blog always makes interesting reading, whether I agree or not with his positions.

The key to the discussion is the provision in the United States Constitution, in Section 1 of Article II, which spells out the eligibility of presidential candidates:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

The problem is that the Constitution never defines “natural born citizen.” It is true that Congress passed, in 1790, the Naturalization Act, which contains the following passage:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States […]

Under the terms of this statute, Senator Cruz is demonstrably a citizen of the United States. His Cuban-born father did reside in the United States for a few years in advance of Ted Cruz’s birth in Canada. But what does the phrase “shall be considered as natural born citizens” mean? If it were “are natural born citizens,” this would settle the question, or so it would seem. However there is even an ambiguity there. Does Congress, after the fact, have the right to change the meaning of a passage in the Constitution (other than by amendment, which requires a two thirds vote and ratification by three fourths of the States)? Actually, the key there is whether this is a change. I would maintain that, since the Constitution does not have a definition of “natural born citizen,” Congress is acting within its rights, merely clarifying the Constitution's specification of eligibility. But, as Williamson points out, “shall be considered as natural born citizens” is not the same as “are natural born citizens.”

But why say “shall be considered as” rather than “are?” If the statute were to read, “And the children of citizens of the United States … are natural born citizens,” then no question would remain about Cruz’s eligibility. But “shall be considered as” might signify that a person in such circumstances is naturalized at birth, not needing to follow the same processes of naturalization that others born off of U.S. soil must go through, but it still falls under the auspices of naturalization law. Does this statute create a “naturalized at birth” citizen separate from a “natural born” citizen, with the one being “considered as” the other? Is there a distinction there? Or does “shall be considered as” equal to “are,” relegating the concept of “naturalized at birth,” in an instance such as this, to mythology?

In fact, this is a question that could only be settled by the Supreme Court. And the Supreme Court never gives advisory opinions. A court case would have to be raised, and this could only take place after Cruz were nominated and elected, because the Court does not rule on hypotheticals. This in turn raises a question: who would raise a case? Some might say the Democrats. But in that situation, even if Cruz were ruled ineligible, this would simply make his vice-presidential nominee the President — not a very satisfactory outcome for a Democrat!

In any case, even if a Court case were to be set up, what would the Court do? Remember that in 2012 the Supreme Court (in the case Department of Health and Human Services v. Florida) upheld the individual mandate in the Affordable Care Act, a.k.a. Obamacare, because the Constitution gives Congress the right to levy taxes, even though the Adminstration maintained that the penalty was not a tax.

Chief Justice Roberts went on to say that the penalty for failing to carry insurance met the criteria for a tax. Because of the court's duty to defer to the elected branches when possible, the mandate must be upheld, he wrote.

Neither the label of "penalty" nor the fact it was intended to influence behavior mattered, he wrote. The penalty functioned like a tax—and other taxes, such as those on cigarettes, are enacted principally to create incentives rather than raise revenue, he said.

Note the words “the court's duty to defer to the elected branches when possible.” I believe that in a challenge to ine eligibility of Ted Cruz, Congress's right to define “natural born citizen” would be upheld. So the question of Cruz's ineligibility is really a non-starter.

Scott Walker as candidate

So now Wisconsin Governor Scott Walker has announced his candidacy for the Presidential nomination for next year's election — not a surprise, really; it was expected by most people. And while a few months ago I would simply have added Gov. Walker to the list of candidates I could support if New Jersey Governor Chris Christie can't make it, now I have a little more to pause about regarding him.

Gov. Walker has been one of the most vocal opponents of the Supreme Court's Obergefell v. Hodges decision. He's even proposed a constitutional amendment to revoke it. Now, he has not the slightest chance of actually getting such an amendment through — it would require 67 Senators to support it, and then 290 Representatives, and even if it got those, which is rather unlikely, 38 State legislatures would have to approve it — there is a chance that Gov. Walker, as President, would take some seriously anti-gay action. So this counts against him. On the other hand, I'm very happy with the way he's taken on Big Labor as Governor. I think we need people with that kind of courage. Organized Labor has far too much power.

So my feelings on Gov. Walker are quite mixed.

Religious freedom and gay marriage

According to a post by Rachel Lu on the Federalist website:

By decree of the great state of Oregon, the owners of Sweet Cakes by Melissa must pay $135,000 to the lesbian couple whom they “mentally raped” by refusing to bake their wedding cake. This was expected, but the final judgment, handed down last Thursday, came with another twist. Aaron and Melissa Klein have also been given a “cease and desist” order, which effectively decrees they must refrain from stating their continued intention to abide by their moral beliefs.

Let’s be clear on why this is so sinister. There are times when speech rights conflict with other legitimate social goods. The public’s right to know can conflict with individual privacy rights. Sometimes threats to public safety warrant keeping secrets. There can be interesting debates about intellectual property rights. These cases can get tricky, and we should all understand that speech rights necessarily do have certain pragmatic limits.

None of those concerns apply here. The Kleins did not threaten public safety. They violated no one’s privacy or property rights. Rather, the Oregon labor commissioner, Brad Avakian, wanted to silence them because the content of their speech. Presumably he was angry that the Kleins’ defiant stance had earned them a potentially profitable reputation as heroes for religious freedom. They were meant to be humiliated and cowed; instead there was a real chance they would land on their feet. So they had to be gagged to prevent that from happening.

If the First Amendment doesn’t apply to a case like this, it is meaningless.

Now if this is true, the judge (or the labor commissioner, if he was able to get the cease and desist order without a judge's action) has gone too far. Yes, the bakers are a public accommodation, and refusing to grant service to the lesbian couple is an offense that deserves punishment. Even though the size of the award ($135,000) would seem excessive to me, the damage can be evaluated and if a court thinks it appropriate I would not quarrel with that. However, if the Kleins are forbidden even to speak out and state their religious beliefs, I agree with Rachel Lu that this is beyond the pale, in light of the First Amendment's freedom of speech and religion clauses. While I believe that freedom of religion does not justify a company refusing to serve an intending customer, it certainly must be the case that the owners of the company do have the right to state their religious beliefs. And the customers (as in the case of the jeweler in Canada) must decide whether they still want to use the firm's services.

I have said that Obergefell does not infringe on religious freedom. And insofar as it makes bakers like the Kleins serve people, I still believe this. But actions like that of the Oregon judge seem to make the issue of religious freedom come in, despite what I said.

Is there any coherent argument against same-sex marriage? I don't see one!

There are a lot of comments I have seen by opponents of same-sex marriage in the light of the Supreme Court's Obergefell v. Hodges decision, and others that I had seen even before that, attacking the very idea of same-sex marriage, but none of these arguments makes very much sense. It is obviously the case that the people making the arguments against same-sex marriage are simply trying, lamely, to find ways that do not fall afoul of the First Amendment to say “my religion does not accept it; thus it's wrong.”

The most common, but stupidest, argument I have seen is “We are ‘redefining’ marriage, an institution that has remained unchanged for thousands of years.” First of all, I cannot accept that this is a “redefinition of marriage.” If we define marriage as “two persons who love each other agreeing to form a single household” (which to me seemns the fundamental purpose of a marriage), the definition has not changed. All that has changed is that the right to marry has been extended to couples that had not this right in the past. And as I have said in earlier posts, when the right to vote was extended to eighteen-year-olds, nobody considered this to be a “redefinition of voting”! So how can this be a “redefinition of marriage”?

In addition, marriage has been redefined in much more radical ways over the 200-plus-year history of this nation. In the 1700s, being married meant a woman gave up her right to own property, and in fact was considered the property of her husband. This has long since ceased to be the case; and I hope nobody wants to restore that “traditional” definition of marriage.

Some opponents of same-sex marriage make the point that “children who grow up with both their mother and their father in an intact family are most likely to develop into well-adjusted, productive citizens able to sustain and provide for themselves. In contrast, when marriages break down or disappear, economic troubles all too often surface.” But this is really totally irrelevant to the issue of same-sex marriage. A same-sex couple, to be sure, can only have children by adoption; it cannot create one. But the children that couple might adopt would have been given up for adoption in any case. The “family” into which they were born did not break up because the same-sex couple had married; it was broken in any case. And many anti-same-sex-marriage people (probably the overwhelming majority, in fact) are opposed to abortion and favor adoption as a solution. The only way one can reduce the number of children who do not “grow up with both their mother and their father in an intact family” would be to forbid giving up one's child for adoption. And I have not seen anyone favoring such a law.

But how about the argument that “children who have both a mother and a father are better adjusted than children in single-parent families”? This argument could only make sense if there were enough male-female married couples desiring to adopt to take care of all the adoptable children there are, and nobody, I think, believes this is the case. The alternative, for those children who were not adopted by a same-sex couple, is probably not to grow up in a family at all. And I am sure that children with two adoptive fathers or two adoptive mothers are still better off than children with no adoptive parents at all.

So what argument can an opponent of same-sex marriage make? I do not think there is any.

The Supreme Court's decision on Obergefell

Immediately after the Supreme Court's ruling on King v. Burwell, which I had to grudgingly admit has to be accepted because the Court is the final arbiter, has come another ruling about which I am much happier. Justice Anthony M. Kennedy has written the decision, as he has in just about every decision affecting gay rights. And as one would expect of a Kennedy decision, it was forthrightly in defense of gay couples' rights:

No longer may this liberty be denied. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.

Both this decision and the previous one in King v. Burwell, of course, can be considered “liberal,” which clearly shows why I cannot really consider myself to be either “conservative” or “liberal.” I see the King decision as misguided, while the Obergefell decision as a positive step forward in granting rights to an often-denigrated group of people. So my reaction to these two “liberal” decisions is quite different.

I would like to say two things to people opposing this decision:

First of all, this decision does not — as many opponents claim — “redefine marriage.” Marriage is still the union of two people who love each other into a household. All that changed is that couples who were denied that right now have it. It no more changes the institution of marriage than extending the right to vote to 18-year-olds (when the minimum age had traditionally been 21) redefined the act of voting, and I see no difference between these as a simple extension of rights to those who did not previously have them.

And second, this decision does not infringe on anyone's religious freedom. A Catholic priest has not ever been required to officiate at the wedding of a divorced person, counter to his religion, nor has a Jewish rabbi ever been required to officiate at an interfaith wedding, and nobody will require either to perform a same-sex wedding if he believes his religion does not permit it. (Many rabbis, of course, do perform same-sex weddings, as well as interfaith ones; Jewish positions on both of these vary. But those who will not, may continue to refuse.) As to bakers, florists, etc., I wonder how many of them insist even now that the people to whom they provide services be legitimately married. Do they check the marriage licenses of the couples? If anyone wanted to order a wedding cake from a baker, would the baker refuse to provide one if the customer is not really getting married? I doubt it. The baker who opposes gay marriage on religious grounds is not facilitating the wedding of which he disapproves; he is just baking a cake in a design which is regular for wedding cakes and selling it to a couple of people that he doesn't consider should be married. I doubt that he would even check if a couple that happens to be too closely related, in violation of the Bible, ordered a wedding cake, or even if a man and woman who really do not seriously intend to marry do so.

Incomprehensible!

Yesterday the Supreme Court ruled on King v. Burwell, and all I can say is that, since they are the final arbiter, their decision has to be accepted as law. Apparently, Chief Justice John Roberts has decided that the Court will not decide on the basis of what is actually written in the law, but rather on what the apparent intent of the majority of the members of Congress who voted to pass it was.

Since ruling the other way would have made “Obamacare” unworkable, the Court has kept it alive for now by its ruling. And this means that it certainly will be alive for the remaining year and a half of Barack Obama's term as President, since he will veto any attempt to revise it. Which makes the election of a Republican in next year's election even more important than it would have otherwise been.

This is not the worst decision ever made by the Court — that would probably be Plessy v. Ferguson or Dred Scott v. Sandford — but certainly, I think it is one of the bad ones. But this is a nation of laws, and the Supreme Court is the supreme interpreter of what the laws mean, so for now we have to live with it. And since it is not a Constitutional decision, but only a ruling on the meaning of an Act of Congress, it can eventually be changed by a new act; it doesn't require amending the Constitution, as the Fourteenth Amendment was the only way to counteract the Dred Scott decision.

If I were a Supreme Court Justice, how would I rule on Obergefell?

I have several times thought about the question: If I were a Supreme Court Justice, how would I rule on Obergefell v. Hodges? And one part is easy. A marriage contracted in one State has always been considered as valid in all others oven where the other State would not perform the marriage. First cousins cannot marry in Ohio (one of the states involved in the Obergefell case!) but it was noted in a lower court's decision that first cousins' marriages in other States have been honored in Ohio. This is a general rule, and clearly derives from Article IV, Section 1 of the Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The other question before the Court is more difficult. Does a State have to allow same-sex marriages to be performed? And the normal rule is that each State sets the rules there. One State may allow 13-year-olds to marry; another may set the minimum at 16, and the Constitution has always been held to permit such differences. The only case I know of where the Court has invalidated a State law restricting marriage is Loving v. Virginia, which invalidated anti-miscegenation laws. Is this a case like Loving? It would only be so if one answers Chief Justice John Roberts' question in the affirmative:

I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

And based on Roberts' question, perhaps likening this case to Loving isn't so far-fetched. So perhaps if I were a Supreme Court Justice, I could rule that way. But I'm not sure. And we certainly do not know how the nine people who actually sit on the Court will rule.

President Obama has no right to control what cases the Supreme Court considers!

According to a report by The Associated Press,

President Barack Obama says the U.S. Supreme Court probably shouldn't have taken up the latest challenges to his signature health care law.

Obama says there was no reason for the health program to end up in court, maintaining that “it's working.”

The high court is expected to decide soon whether Congress authorized federal subsidy payments regardless of where people live, or only for residents of states that created their own insurance marketplaces.

The decision could have far-reaching implications because millions would lose their insurance if the court said people who enrolled through the federal site couldn't get the subsidies.

Obama says it has been well-documented that Congress never intended to exclude people who went through the federal exchange.

Obama commented Monday in Elmau, Germany, at the conclusion of a summit.

The President seems to feel that any challenge to the way he does business to accomplish his goals is unjustified. Well the news for President Obama is that thuis is a government of laws. The President does not have the power to rewrite a law, just because it is worded in such a way that the President's goals atre not met, in order to make it work the way he wants it to.

Obamacare's failure

A column on the Real Clear Politics site, by Jack Kelly, dated June 7, 2015, entitled “Spare Us From Obamacare,” makes very interesting reading. So I reproduce it here.

The Affordable Care Act isn’t.

Some major health insurers seek eye popping rate increases for 2016 — such as 25 percent in Oregon, 30.4 percent in Maryland, 36.3 percent in Tennessee, 51.6 percent in New Mexico.


Insurance commissioners won’t approve all companies ask for. Rates will rise modestly in some states. But the odds are your premium will cost a lot more next year.

Premiums for non-group policies rose 24.4 percent more last year than they would have without Obamacare, said the National Bureau of Economic Research. Premiums in this market rose more after two years of Obamacare than in the eight years preceding, said eHealth Insurance, a private health exchange.

Despite subsidies for the industry of at least $16 billion, many insurers lose money. Far fewer individuals signed up for Obamacare than expected (and the administration claimed). Those who did are older and sicker.

“Only about 40 percent of those eligible eventually signed up after two full open-enrollments,” insurance expert Robert Laszewski told the Washington Examiner. “Carriers need more like 75 percent.”

Subsidies for insurance companies mask the true cost, said Stephen Parente, director of the Medical Industry Leadership Institute. Unless reauthorized in 2017, premiums for the cheapest plan could rise nearly 100 percent for individuals, 50 percent for families, he said.

That’s on top of sky-high deductibles. The average deductible for the cheapest Obamacare plan is about $5,180 for individuals, $10,500 for families — four times the IRS threshhold for a “high deductible” plan.

The column then cites an example of why Obamacare hardly qualifies as useful insurance:

Patricia Wanderlich, who suffered a brain hemorrhage in 2011, skipped the brain scan she should have every year because her Obamacare policy has a $6,000 deductible.

“To spend thousands of dollars just making sure (her aneurysm) hasn’t grown?” Ms. Wanderlich told The New York Times. “I don’t have that money.”

The column then goes on to cite some interesting statistics:

About 25 percent of non-elderly Americans with private insurance can’t afford to pay a mid-range deductible ($1,200 for individuals, $2,400 for families), The Wall Street Journal said in March.

People with a policy they can’t afford to use are no better off than the uninsured. Which may be why — despite the threat of fines — so few without insurance signed up for Obamacare.

About 75 percent of those who did are subsidized. Subsidies could end for people in 36 states if later this month the Supreme Court rules for plaintiffs in King v. Burwell.

We have, of course, already discussed this case, but the column makes a good reminder of what it entails:

As written, the ACA permits subsidies only for insurance purchased on exchanges “established by the state,” plaintiffs note.

That was a drafting error, politicians told New York Times reporter Robert Pear. Not true.

The words “established by the state” appear nine times in the ACA. No “drafting error” is repeated that often.

And finally, in summary:

Nearly every promise Democrats made has been broken. The average family pays more (some much more) for insurance, not $2,500 less. About 9 million Americans (so far) have learned they couldn’t keep the health plans they had if they wanted. Or some of their doctors.

Federal spending for health didn’t go down. It’s zoomed upward. So have emergency room visits. Overhead costs are exploding.

The Congressional Budget Office estimates that Obamacare will lower full-time employment by 2.3 million in 2021, compared with what might have been without reform.

The ACA has hurt millions more than it’s helped. The worst is yet to come. President Barack Obama delayed or altered (mostly illegally) unpopular provisions at least 50 times. If they’re implemented fully, up to 100 million who get insurance from their employers could have their policies canceled, the American Enterprise Institute has estimated.

As premiums and deductibles rise, and the job-killing employer mandate goes into effect, a “death spiral” — begun because so few healthy people have signed up — will accelerate. If the Supreme Court rules the ACA must be enforced as written, it would be a mercy killing.

What is a fair Congressional districting?

We haven't heard a lot about a Supreme Court case called Evenwel v. Abbott, but it raises an important question. What is a fair Congressional districting? Should Congressional districts have equal populations (the way they have been drawn ever since the “one-man, one-vote” decisions of the 1960s? Or should they have equal numbers of eligible voters? After all, if a district has half of its population composed of non-citizens, the remaining people have twice the voting power of the citizens in a district that has no non-citizens.

Making the districts equal in number of eligible voters seems logical, but it has political consequences. Because many of the districts that have large numbers of non-citizens are majority-Hispanic, and strongly Democratic. So redrawing districts to have equal numbers of eligible voters would make the House of Representatives more Republican (a result I would not mind, of course). But the question is, is that fair? I would say yes — after all, it is only citizens who vote, and so equality of numbers of eligible voters is more consistent with “one-man, one-vote.” But it is clear that the Constitution apportions seats by population, not by number of eligible voters, as the Fourteenth Amendment states:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.

Yet that same amendment also states:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

If course, both the “male” and the “twenty-one” parts are presumed to be changed in consequence of the Nineteenth and Twenty-sixth amendments, but isn't it clear that citizenship is a qualification for voting? And a districting that gives some citizens more voting power than others, because their district has a lot of non-citizens, seems to go against the spirit of this part of the amendment.

Thoughts on the Obergefell case

One thing that needs to be noted about Obergefell v. Hodges is that the specific case of Obergefell has been consolidated with three other cases. And this may lead to a finding that legalizes gay marriage nationwide, using Loving v. Virginia as a precedent.

The specific case of Obergefell only involves recognition of out-of-state marriages in other states; this issue is really a no-brainer, because states have always recognized out-of-state marriages as valid, essentially a consequence of Article IV of the Constitution. Hoswever, whether a state can restrict marriages performed within its borders to opposite-sex couples involves a different issue. States have generally had the powers to define who can marry (minimum age and degree-of-relationship limits being common), but the precedent of Loving v. Virginia allows the Court to invalidate such restrictions if they are discriminatory. In that case, it was racial discrimination; here it is sexual discrimination. (As Chief Justice Roberts asked in the course of his questioning, “[I]f Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”) If it is looked at in this way, the precedent of Loving v. Virginia will guide the Court to legalize gay marriage nationwide.

Returning to the blogging scene (continued): The Supreme Court cases

Getting back to blogging, there are not a lot of things that can be discussed at the moment, which is part of the reason I have not been active the past few months. There are two pending Supreme Court cases which I think are very important: King v. Burwell, which could throttle Obamacare if it is decided on the plain language of the statute, and Obergefell v. Hodges, which might lead to gay marriage being recognized nationwide. But until June, the Supreme Court is keeping silent on how they will rule. And yet, the Justices have likely made their decisions already, so nothing I say can do much. (Of course, I doubt my blog is being read by any Supreme Court Justices, but one can only hope!). And besides these cases and the 2016 election, which I discussed yesterday, it's hard to come up with a topic to discuss. But I will try.

The Supreme Court will hear King v. Burwell!

The Supreme Court has decided that they will hear King v. Burwell. When two different appellate courts originally ruled in opposite ways on the language in the Affordable Care Act that says subsidies can only be paid in states that have established their own exchanges, it looked as though the Supreme Court would get to rule on it. But then the court that had ruled against the Administration's interpretation, in Halbig v. Burwell reversed itself in an unusual procedure where the decision of a three-judge panel was overruled by the full court, there was no longer a diversity of appellate court decisions, so the Supreme Court might not have heard the case. However, the Supreme Court announced yesterday that the King v. Burwell case will be taken up.

How anyone can believe that words as specific as “exchange established by a State” can include an exchange established by the Federal Government because a State chooses not to do so escapes me. The original decision in Halbig makes sense; its overruling — and the King decision — was simply an attempt by partisan judges to save the Act no matter what. And the Supreme Court is acting sensibly here, and I compliment the Justices who chose to take up the case.

The case for Boehner's suit

Ron Christie has written a post entitled Why Boehner’s Lawsuit Against Obama Could Work in The Daily Beast, which is a good summary of the case for John Boehner's suit. It bears repeating:

The Speaker’s suit is not some political stunt, and could actually be successful.

Since Speaker John Boehner announced his intention late last month to sue President Obama for overstepping his legal authority, his supporters have frequently noted how few executive orders he’s actually handed down. To date, Obama has only issued 182, while the predecessor he likes to blame for everything issued 291.

But the real issue, of course, is not the number of executive orders issued during one’s presidency but rather their legality. And it’s here that Boehner and company have a real, substantive case against the president.

Obama has issued at least 32 legislative fixes to the Affordable Care Act, softened laws against illegal immigration, and stripped the work requirement from President Clinton’s welfare reform—all with the stroke of his pen. In 2012, perhaps emboldened by the apparent inability of Congress to stop him, Obama declared the United States Senate to be in recess in order to install three nominees on the National Labor Relations Board.

The Supreme Court recently curbed Obama’s ability to circumvent Congress, and now Boehner is readying a lawsuit to do the same. On June 26, 2014, the Supreme Court unanimously ruled that Obama had violated the Constitution by naming those three nominees to the NLRB.

On the same day the Supreme Court invalidated Obama’s recess appointments, he doubled down on his vision of executive authority by flippantly dismissing Boehner’s lawsuit. “So sue me,” the president told reporters when asked about the suit. Fortunately, Boehner has elected to ignore this display of petulance and continue with his landmark attempt to sue the president.

While Obama and his cheerleaders in the media sneer at the notion of executive overreach, noted constitutional scholar and George Washington Law School Professor Jonathan Turley believes Boehner’s suit could prevail. “I think there is a case against the president for exceeding his authority…I happen to agree with the president on many of his priorities and policies, but as I testified in Congress, I think that he has crossed the constitutional line,” Turley told MSNBC the day Boehner announced his suit.

“When the president went to Congress and said he would go it alone, it obviously raises a concern,” Turley added. “There’s no license for going it alone in our system, and what he’s done is very problematic. He has shifted $454 million of the ACA from appropriated purpose to another purpose. He’s told agencies not to enforce some laws, like immigration laws. He has effectively rewritten laws through the active interpretation that I find very problematic. While I happen to agree with him, I voted for him, I think this is a problem.”

This from a supporter of President Obama, yet!

While Professor Turley has identified a serious constitutional problem, David Rivkin and Professor Elizabeth Price Foley, the legal masterminds behind the suit, say they believe that the lawsuit has precedent.

They point to a pivotal case brought by five Colorado legislators who sought the ability to challenge a state constitutional amendment in federal court. The case, Kerr v. Hickenlooper, was brought before the 10^th Circuit Court of Appeals this year and decided in favor of the legislators and their ability to challenge the legality of the executive branch. This, Rivkin and Foley argue, should worry Obama supporters who scoff at Boehner’s impending legal challenge.

Rivkin and Foley also point to Raines v. Byrd, a 1977 Supreme Court decision. In that ruling, the justices held that a prior case before the high court

namely Coleman v. Miller,

… “stood for the proposition that legislators whose votes would have been sufficient to defeat…a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”

This, although Raines v. Byrd found that the legislators in that specific case did not have standing.

Memo to White House Counsel’s Office: Boehner and his colleagues in the House can easily argue that the president’s unilateral rewrite of sections of the Affordable Care Act has essentially nullified the votes cast in the House of Representatives to pass the bill.

“Professor Foley and I believe that, consistent with the existing case law, the House of Representatives would be able to gain standing to challenge a number of President Obama’s unconstitutional suspensions of law, which have nullified the House of Representatives’ legislative authority, thereby inflicting institutional injury on it,” Rivkin told The Daily Beast on Tuesday.

He continued: “A lawsuit challenging anyone of these actions by the President and that meets the other three elements of our four-part test — explicit legislative authorization, no private plaintiff available and no proportionate political ‘self-help’ available — would have an excellent chance of success.”

Of course, nobody can tell how the Supreme Court will rule. But I would hope that the Court will see things as Rivkin and Foley have. And Coleman v. Miller, decided by the Supreme Court in the past and interpreted in Raines v. Byrd, seems to make it a reasonable hope.

Boehner will soon submit a resolution to the House of Representatives stating that the president has failed to faithfully execute the law. The Speaker contends that Congress — and by extension the American people — have been harmed by Obama’s unilateral decision to rewrite, ignore or modify laws as he sees fit. And if Obama can act lawlessly and bypass Congress now, the precedent has been set for a Republican president to do the same in future years.

Boehner’s lawsuit is no mere political stunt. Rivkin and Foley have provided a strong legal framework for Boehner to succeed in his lawsuit on the merits. And it will be interesting to see if Obama realizes this and offers a legal defense for unilateral actions, or remains stubbornly dismissive of Boehner and his efforts.

I could not have said it better myself, so I simply repost it.

I'm back! And the recent Supreme Court decisions

It's been a two-month hiatus in my posts — I have been grappling with some medical issues and decided to devote my efforts elsewhere. My condition has not gotten better, but the news I heard today is encouraging enough that I can resume a few other activities that I have put aside.

I am very happy over three decisions that the Supreme Court announced in the past few days. National Labor Relations Board v. Noel Canning is an amazing sight. Even the two Justices that President Obama appointed, Elena Kagan and Sonia Sotomayor, agreed that he had gone beyond the bounds of the Constitution. This decision was 9-0, unanimous! Even beyond the rebuke to President Obama, this is a noteworthy decision, because it defines the “recess appointment” power, which had never been treated in any Supreme Court case. The decision did not go as far as some conservatives wanted — they wanted it to restrict the power to filling vacancies that actually happened when the Senate was not in session — but the Court's ruling that when the Senate says it is in session, and is able to conduct business according to its own rules, the President cannot declare them to be in recess and make appointments speaks volumes.

The other two decisions were not unanimous, but 5-4, with all the Republican-appointed Justices in the majority and the Democratic-appointed ones in dissent. Jeffrey Toobin of CNN is right when he says:

Elections have consequences.

That's the message of Monday's rulings from the Supreme Court -- and, indeed, all decisions by nine justices whose ideologies reflect, with considerable precision, the views of the presidents who appointed them. Both the Hobby Lobby case -- which concerned the intersection of women's rights, religious freedom, and Obamacare -- and the Harris case, about the future of labor unions, were 5-4 decisions.

Five Republican appointees for the owners of Hobby Lobby (and against the unions). Four Democratic appointees for the Obama administration (and for the unions). Notably, too, three of those four Democratic appointees are women. (Of 112 people who have served on the Supreme Court, four have been women.)

As in so many cases before the justices, the legal issues in these cases were as much political as legal. Indeed, just like politicians, the justices try to frame the questions before them in as politically appealing ways as they can.

In Hobby Lobby, the issue was whether a privately held company, whose owners have strong religious convictions against abortion, can refuse to pay for certain forms of birth control which they regard as immoral. “The owners of many closely held corporations could not in good conscience provide such coverage,” Justice Samuel Alito wrote for the majority, and to force them to do so would violate federal law.

Justice Ruth Bader Ginsburg, for the dissenters, framed the issue in an entirely different way. She and her colleagues saw Hobby Lobby as asking for -- and receiving -- a license from the court to discriminate against women. What, she asked, about companies that have religious objections to treating African-Americans equally -- or gay people? And, she asks, “how does the Court divine which religious beliefs are worthy of accommodation, and which are not?”

The same kind of conflict undergirds the union case. In that case, home care workers who are covered by a union contract demanded the freedom to refuse to pay dues -- which the conservative majority granted them. Is this, as Alito (again) held, simply a matter of preserving the freedom of speech rights of these employees? Or is it, as the dissenters, led by Justice Elena Kagan, said, a vehicle to starve unions of the dollars they need to survive -- and negotiate precisely these kinds of contracts?

…

But no one should be misled. When it comes to the most fundamental issues before the court, the most important factor is not the legal arguments but the identity of the judges -- and the presidents who appointed them. Republicans vote one way, Democrats another. It's true in Congress, and it's true on the other side of First Street as well -- in the marble temple of the United States Supreme Court.

Now I think Toobin favors the Democratic position. But I am very glad, based on these two decisions, to say that I am a Republican. The Hobby Lobby decision, Burwell v. Hobby Lobby Stores, Inc., was a blow for religious freedom, and while I would not, in my own religion, see anything wrong with providing contraceptive drugs, the fact that the owners of Hobby Lobby had strong religious beliefs that precluded this must be honored. Another day, it might be anti-circumcision laws, for example, which had been favored by many people in some parts of California. So I want to honor everyone's religous freedom rights, and this decision was a step in this direction. It said that you do not give up your religious freedom by forming a corporation, and one thing Toobin does not mention is that this decision also highlights the anti-corporate attitudes in the Democratic Party.

The other case is about another issue dear to my heart: labor unions' inordinate power. While I wish the Court had gone further and reversed its earlier Abood v. Detroit Board of Education decision, in Harris v. Quinn the Court did rein in the power to collect dues from people who choose not to join. If Justice Kagan thinks it is “a vehicle to starve unions of the dollars they need to survive,” who else besides a labor union has the right to demand “the dollars they need to survive” of people who do not believe they are being served in any way by them?

A chance to set back Big Labor

Although the case has been pending for some time (the Supreme Court granted certiorari some months ago) I just today was reading about it: there is a case before the Supreme Court called Harris v. Quinn which has some possibilities that look good for setting back Big Labor. It involves home care workers who have been classified as state workers under Illinois law, apparently just in order to put them under a collective bargaining agreement which has set up an “agency shop,” a contract where even if a person does not want to join a union, he is forced to pay the union dues. This is one of the most evil things ever worked into a contract — you must pay someone, allegedly for providing a service, but the service is one you never asked for nor want. And the money, of course, goes in part to political candidates you might oppose.

Of course, the unions are upset that anyone would challenge these “agency shop” provisions; they say that the unions have to negotiate for all the workers and so even the non-members benefit, so they should help support the union. In fact, the union often negotiates contracts with provisions that are directly against the interests of these non-members, but union apologists refuse to see this, and that is why many people do not want to be a part of the union.

But a ruling in favor of the plaintiffs in this case would not actually kill “agency shops,” as all it would do is to say that they are not in fact state employees. It would be nice if it did, of course, but that is not what this specific case is all about. It will not release unwilling people who are state employees from these burdensome “agency shop” contracts. Yet some columnists have claimed it would provide a “right-to-work” law for all public employees. Would that this were so!

Still, it's a move in the right direction. The only thing that would really provide equity in this issue of “right-to-work” laws would be a national “right-to-work” law that would apply to everyone. Nobody should be forced to pay dues to an organization he perceives as working against his interest. But let us hope that Harris prevails in this case, and others follow to push the issue a little farther in the future.

An Ohio First Amendment case that deserves attention

The Wall Street Journal recently posted, on its Website, a column by Bradley A. Smith of Columbus, Ohio, entitled “The Supreme Court and Ed Corsi's Life of Political Crime — How one Ohio man's blog on politics got him in trouble with campaign-finance law.” This is probably the next big First Amendment issue that will be decided by the Supreme Court, so we need to follow it. Here is the article:

In the winter of 2008, Ed Corsi decided that he was tired of stewing about the politics in his home of Geauga County, Ohio, and the country at large. He started a website, put Thomas Jefferson's quote, “The price of freedom… constant vigilance” at the top, dubbed the site “Geauga Constitutional Council,” and set about blogging his thoughts on local and national politics. So began his life of political crime.

Over the next two years, Mr. Corsi and a few friends would sometimes gather to talk politics. He occasionally sponsored meetings featuring speakers (not political candidates) on public policy issues (not elections), and charged a nominal fee for seating to offset his costs. He and two friends passed out political pamphlets they made at the Geauga County Fair.

Mr. Corsi spent $40 a month to maintain his website, and perhaps a couple [of] hundred dollars a year in other expenses. According to the state of Ohio, however, these activities are illegal under campaign-finance laws[,] because Mr. Corsi did not first register with the state, report to the state on his activities, and subject himself to the regulations governing the operation of a state political action committee.

When he was summoned to a hearing before the Ohio Elections Commission in April 2011, Mr. Corsi asked, “Do I have to hire a lawyer to [do] these things?” Commission Chairman Bryan Felmet replied, “Yeah, I guess so. I think that it's very complicated without going to those lengths.” The commission ordered Mr. Corsi to register and report his activities to the state.

When the Supreme Court reconvenes in October, the big campaign-finance case will be McCutcheon v. Federal Election Commission, which nervous censors have dubbed “the next Citizens United.” McCutcheon deals with the ability of affluent Americans to contribute to political parties and candidates. Never mind that the candidates and causes these people support represent the views of millions of citizens. “Reformers” argue, and many Americans seem to agree, that “big money” in politics must be regulated.

It is inconceivable, however, that America's founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to such complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.

The “big money” in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics—the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. The IRS targeting scandals are merely the most prominent example of the way these laws are used by those in power to harass their opposition.

On his blog, Mr. Corsi was critical of Ed Ryder, the chairman of the Geauga County Republican Party and a member of the county Board of Elections, and of various officials and candidates supported by Mr. Ryder. The initial complaint against Mr. Corsi was filed by Mr. Ryder, who admitted spending two months to find out who constituted the “Geauga Constitutional Council,” so he could file a complaint against Mr. Corsi.

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.

In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.

Most state statutes now simply ignore the Supreme Court and require that two or more citizens who spend even nominal amounts on politics to register and report to the government. Even printing yard signs or running an email list can trigger these requirements. In Ohio, a single dollar in expenditures will do, so be careful if you talk politics over a cup of coffee.

As a former commissioner at the Federal Election Commission, I have seen the effects these laws have on citizen participation and civic-mindedness. I have read the plaintive letters from citizens who could not afford a lawyer, and could not believe their government was fining them for political activity.

In the past, both liberals and conservatives on the Supreme Court were sensitive to this problem. Liberal Justice William Brennan wrote the majority opinion in the Massachusetts Citizens for Life case. But that sensitivity appears to be vanishing.

Forty-seven years ago, in Mills v. Alabama, the court struck down a lawprohibiting election-day newspaper editorials, noting, “there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs."

Is that still true? Will the court leave millions of Americans who want to engage in politics at risk of prosecution? Will it leave Mr. Corsi hanging?

Like the author of that column, I would like to see how the Supreme Court answers these questions.

The Supreme Court's two gay marriage decisions

For once, the Court's decisions went just about as I would have had it. The only place I was not quite right was that the overrule of California Proposition 8 was on the grounds of “lack of standing,” rather than appealing to an earlier decision in a Colorado case that a right, once given, could not be taken away. But the practical effect is the same; the lower court's decision was upheld, and that court used the argument I would have cited.

The DOMA decision got it exactly right. The states have always said who had a right to marry, and if the Federal government restricts that right, they are impairing the right to equal protection. As Justice Kennedy wrote in his opinion, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.” Those who talk of the “traditional” definition of marriage have a lot of things wrong; traditionally marriage has been regulated by the states, not the Federal government, and over the years the nature of marriage has changed — in the nineteenth century it made a wife the property of her husband, for one thing. So appealing to “tradition” is nonsense.

A lull in the posting rate

I've not been posting much lately — only once a week or less often. And I notice that most of my favorite blogs, like Dennis Sanders' “Big Tent Revue” and Tom Bowler's “Libertarian Leanings,” have also slacked off. I wonder if this is because Barack Obama's Presidency is going to last till 2017, and nothing we say can change that? (And of course, even Congressional elections are 1½ years away.)

Next month, the Supreme Court will probably issue its decisions on Hollingsworth v. Perry (the California Prop. 8 case) and United States v. Windsor (the case challenging the so-called “Defense of Marriage Act”). I will certainly post comments on these decisions once we know what they are. But until then it is mere speculation. I know how I would rule. On Windsor, it is clear to me that DOMA is unconstitutional, because it conflicts with the Tenth Amendment-based right of States to define “marriage.” On Hollingsworth, my feeling is more nuanced. Because of that Tenth Amendment argument, it is not appropriate to declare same-sex marriage legal everywhere in the 50 States. Appeal to the precedent of Loving v. Virginia is attractive, and probably if there were more than 11 states with same-sex marriage on the books, would make sense. But clearly there is not a nationwide consensus on this issue. I think, if I were a Supreme Court Justice, however, the precedent I would follow is Romer v. Evans. Basically, to take away rights that people already have is unconstitutional, and this is what Prop. 8 did. And on this basis, the Court would, in my opinion, be right to invalidate Prop. 8, while not forcing those states without laws authorizing same-sex marriage on the books to institute it.

But this is my position. i cannot get inside the heads of the nine Supreme Court justices. So I cannot comment on their decision until they issue it, probably next month.

Reports that seem to come from the Court

What I see in the reports on the two days of hearings seems to confirm what I've said about DOMA — there's a strong states' rights argument that DOMA is unconstitutional. The Prop. 8 news seems to be a bit less clear, but it looks as though there's a good chance that the Court will rule that the anti-gay side has no standing, or that the court should not have granted certiorari, and in that case the Ninth Circuit opinion will stand: Prop. 8 in California is unconstitutional, but the status quo will continue in at least most of the 49 other states (legal where it is, illegal where it's not currently legal). This will mean the pro-marriage-equality side will have to keep working where they haven't won, but there is a precedent that will say that wherever gay marriage has been approved, that action can't be reversed. Inexorably, gay marriage will become legal in more and more states.

If all this comes to pass, it's good for advocates of equality. Not perfect, but good.