Obama's left-wing orientation

Recently, President Barack Obama was quoted as saying:

If you've got a business - you didn't build that. Somebody else made that happen. You didn't get there on your own. I'm always struck by people who think, well, it must be because I was just so smart.

When I read this quote, I pretty much thought along the lines of “Nothing much new here, a typical observation from a socialist.” And so I didn't think it worth even commenting on. But Tom Bowler, who runs the “Libertarian Leanings” blog, apparently thought it worthy of a major discussion. After presenting the above quote, he continues:

It should come as no surprise that business leaders disagree, and they wasted no time punching back.

David Chavern, executive vice-president and chief operating officer of the U.S. Chamber of Commerce, said that the basic idea behind Obama’s comments, and other similar sentiments expressed by allies, ‘is really objectionable and offensive.’

'The problem with the Obama administration’s view, he wrote in a blog post, was that ‘it only looks at the good outcomes’ rather than what went before.

Mr Chavern wrote: ‘Success is apparently a collective effort — but where was that "collective" during the periods of risk-taking and failure? The vast majority of businesses fail. Period.

He added: 'Every day millions of people put their lives, savings, houses and families on the line and work 20 hours a day just to grab their small slice of the American dream. Where is the collective when all of this is going on? And if the collective is really responsible for success, how come everyone isn’t successful?

Also commenting on Obama's remarks was the president of the National Federation of Independent Businesses, Dan Danne.

What a disappointment to hear President Obama's revealing comments challenging the significance of America's entrepreneurs.

Mr. Danne added: 'His unfortunate remarks over the weekend show an utter lack of understanding and appreciation for the people who take a huge personal risk and work endless hours to start a business and create jobs.'

Is anybody still wondering why the economy is struggling after three and a half years of Obama? For three and a half years Barack Obama has been trying to milk businesses for all they're worth, and we're seeing his results in every aenemic jobs report that comes out. November can't come soon enough.

My only feeling about such comments is surprise that anyone was surprised by Obama's taking the position he did. His principal mentor in his pre-college days, Frank Marshall Davis, was known to be a card-carrying member of the Communist Party. I was aware of this four years ago, when Barack Obama was merely a Senator seeking the Presidency. (Although just recently, a new book came out emphasizing this, but the information was available at least four years ago.)

There are people who seem to be deluded into thinking that Barack Obama is a centrist or moderate. they object to people characterizing him as a socialist. And yet, there is so much evidence that Obama is a Marxist that I cannot imagine any reason to think otherwise.

Organized labor's shocking power

Today I saw a piece in the Washington Examiner that inspired me to write this post because it shows why the power of organized labor needs to be curbed. Entitled “Metro's absurd, tragic union rules,” the piece describes the case of a former bus driver for Washington's transit system, Ronald Taylor. Back in September 2008, Taylor was driving an empty bus back to the garage, and exceeded the speed limit by a significant amount, going through a red light, hitting a taxicab, killing one passenger and seriously injuring the passenger's wife and the cab driver. When the transit agency fired Taylor (which seems to me to be eminently appropriate!) the union forced them to reinstate him, and tried (thankfully without success) to allow him to drive a bus again rather than putting him where he could not endanger people's lives as a station manager:

…after Metro promptly fired Tabor from his job as a bus driver, it was forced by a labor arbitrator to reinstate him in May 2010, with a year and a half of back pay, on the grounds that it had not followed proper procedure in terminating him.

Not only was Taylor reinstated as a Metro employee, but his union, Amalgamated Transit Local 689, tried doggedly to force the transit agency to put him back behind the wheel of a bus. Taylor at least had the sense not to insist on this, instead agreeing to take a position as station manager, which he lost only this April after pleading guilty to the homicide charge.

At the time of the bizarre ruling to reinstate Taylor — in which arbitrators disregarded an eyewitness account of the accident — transit union boss Jackie Jeter stated that Metro lacked the authority to fire Taylor, and that “if they wanted Mr. Taylor to remain terminated, they should have put on a stronger case.”

The unmitigated gall of the Amalgamated Transit Union! The man sped through a red light, killed one man and injured two other people, and “Metro lacked the authority to fire Taylor”? If this isn't a reason that unions need to be restrained, I do not know what is. Fortunately, now that Taylor has been convicted in a court of law and put in jail, Metro can fire him with no grounds for the union to protest. But why were they forced to reinstate him in the first place?

I've discovered another columnist I like

The Washington Post is a paper whose positions are far to my left. But in fact, they seem to be much more flexible in their choice of political opinion columnists. They have George Will, who makes me seem liberal in comparison. And they have Charles Krauthammer, with whom I am generally in agreement. Recently, I discovered another Post columnist I like. Her name is Kathleen Parker.

She may have been writing columns in the Post for a while, but I never noticed them until the one I remarked upon in my May 15 post entitled “A column worth reading.” And in yesterday's Post, I found out some information most of the media had suppressed:

There is simply no other way to explain what has transpired in the few days since Mitt Romney’s speech to the NAACP. If you read a headline or watched the news, most likely you’re aware that Romney was booed for saying that he would repeal Obamacare. What you may not know is that Romney also left the stage to a standing ovation.

Suppose you were an editor, which headline would you prefer:

“NAACP boos Romney during speech about Obamacare”

“NAACP convention gives Romney a standing O”

Hmm.

I've got to pay more attention to Kathleen Parker. I like her style!

Now that PPACA has been ruled constitutional...

…people like Kathleen Sebelius, the Cabinet Secretary whose department which has jurisdiction over much of the bill's content, has been saying stupid things like “we need to stop refighting old political battles and trying to take away benefits that millions of Americans are relying on. Instead, we should move forward with implementing and improving this law…” Similarly, Nancy Pelosi has made statements decrying repeal of PPACA (alias “Obamacare”) as unrealistic.

Secretary Sebelius' attitude seems to be that the only question at issue is the constitutionality of PPACA. But it is not. The Supreme Court has said that Congress has the constitutional right to pass the law. It has most certainly not ruled that the law was a good thing to pass. And the Court ruling on PPACA specifically implies that, just as Congress has the right to pass such a law, it has the right to repeal it. And the Congress is supposed to be responsive to the people's wishes. Since the public opposes PPACA, (a recent poll says that support for the act has increased since the Court's ruling, but the majority still oppose it), so it is eminently in accordance with our Constitutional system for the House leadership to pursue repeal.

Vote suppression? Hardly!

Attorney Genersl Eric Holder is claiming that Republican governors and legislatures that are pressing for voter identification laws are engaged in “vote suppression.” This is arrant nonsense. I cannot enter a Federal building without being checked for an ID. It is simply a fact of 21^st-century life that people are expected to have identification cards. Anybody who does not, and will not get one, is probably here illegally. Or, in the case of an intending voter, he is not who he claims to be.

Somebody (in fact, a white person who looked not the least bit like Attorney General Holder!) in the District of Columbia, which does not check voter identification (surprise? Of course the most liberal jurisdiction in the country wouldn't!) recently asked whether there was a ballot for Eric Holder in the precinct where Holder's home is, and was given the ballot — he wasn't even saying he was Eric Holder!

Of course, Chicago, where President Barack Obama had his political upbringing, is famous for allowing ballots in the name of dead people, and if illegal aliens are given ballots, they are likely to cast them for Democrats, so it has been argued that proving that an intended voter is really entitled to vote is going to favor Republicans. But the point is that these people who are being denied the vote are not entitled to. Attorney General Holder's job is all about enforcing the laws. But, just as in the case of President Obama's actions on the DREAM Act, this administration will ignore the Constitution or the duly enacted laws of our States and Federal Government when it helps the Administration's political agenda.

Designing a health care law

I think that one reason that “Obamacare” is such a disaster is that several different goals were set, and when they conflict, it is not certain which has priority. For example, is it to provide universal coverage, or to reduce costs? What works to help us move toward one goal does not necessarily help — in fact, may actually hurt — our progress toward another goal. Of course, I might even question the desirability of some of the goals: Is it really necessary to have universal coverage (which “Obamacare” does not achieve anyway)? I would rather see coverage for everyone who wants it — allowing people who think they can do without to go their own way. (This is called “self-insurance.”) And if this means that too many people self-insure and then cannot cover themselves when a big, expensive procedure comes along, this will cure itself as stories of the people in question surface. (If your worry is instead that these people will come aboard only when they sense that they will age to become more needful of health care, put in a provision like what we have in Medicare — if you don't enroll when you are eligible, then when you do enroll, your premium is higher. That should discourage this practice.)

One thing I really dislike is the “one-size-fits-all” nature of most insurance plans — which actually becomes worse with “Obamacare.” Why should a single male have to pay for insurance to cover maternity benefits? Or, for that matter, a post-menopausal female? Health insurance coverage should be like the way Part D (the prescription drug benefit) of Medicare works — every year I get to choose from a large number of plans, and, for example, I choose — voluntarily — to pay a somewhat higher monthly premium to join a plan that requires no co-payments on the drugs I take regularly, while others might opt for a plan where they pay less per month but have to pay a couple of dollars every time they pick up a prescription at the drug store. Requiring all plans to cover certain conditions is not the way to go.

I am not going to design a complete replacement for “Obamacare” on this site. I do not have the expertise. I am only giving ideas for a few specific points. I will also refer the reader to an article by James C. Capretta and Robert E. Moffit on the National Affairs website, which I found because of Dennis Sanders' “Big Tent Revue” blog. Capretta and Moffit's solution is not ideal, but many of their ideas would make, to me, a good starting place.

Surprise! a column by Cal Thomas that makes sense

Regular readers of this blog know that I often read Cal Thomas' column in the Washington Examiner, and usually disagree with what he says there. So it came as a surprise when I saw his column in yesterday's paper, because just about all he said made sense and I agreed. The column began:

President Obama's attempt to spin the latest discouraging unemployment numbers as “a step in the right direction” is like telling passengers aboard the Titanic to ignore the sinking vessel and listen to the live music.

A Wall Street Journal analysis of the June unemployment figures offers little comfort, nor does it produce confidence that the economy will improve before the election.

“The U.S. unemployment rate was unchanged at 8.2 percent in June,” the Journal reports, “but a broader measure rose to 14.9 percent as the ranks of the underemployed grew. … The reason the rate didn't decline was that while the number of employed increased, so did the labor force by a larger 189,000 people.” The broader unemployment rate includes temporary and part-time workers who would prefer a full-time job, as well as people who want to work but have given up looking for jobs. The president's policies, which appear to have stifled economic growth, continue to contribute to the dismal jobs outcome.

Figures from the Bureau of Labor Statistics should cause headaches for the Obama re-election team and an opportunity for Mitt Romney to offer a better path. Hispanic and Latino unemployment remained essentially unchanged at 11.0 percent. African-American unemployment rose by 184,000 to 14.4 percent, making one wonder why so many black voters continue to support a president who is doing them little good. The number of unemployed women has increased by 780,000 since President Obama took office. The unemployment rate among white men and women remained at 7.4 percent, but whites don't seem to figure much into Obama's re-election strategy.

June marked the 41^st consecutive month in which the unemployment rate has been above 8 percent, the longest streak at such a high level since the Great Depression. President Obama promised that if Congress passed his stimulus plan, unemployment would be around 5.6 percent by now. In 1992, when Bill Clinton became president, the unemployment rate was 7.5 percent. In October 2008, under George Bush, the unemployment rate was 6.5 percent.

Here's more from an analysis by James Pethokoukis of The American Enterprise Institute for Public Policy Research, a conservative think tank: “The average duration of unemployment ticked up to 39.9 weeks. … Job growth during the three-year Obama recovery has averaged just 75,000 a month for a total of 2.7 million.” He contrasts this with the first three years of the Reagan recovery when “job growth averaged 273,000 a month for a total of 9.8 million.”

Pethokoukis adds, “If you adjust for the larger U.S. population today, the Reagan recovery averaged 360,000 jobs a month for a three-year total of 13 million jobs.”

Now, all this is simply a citation of statistics, and there is not much for anyone to agree or disagree with, but then comes Cal Thomas' opinion. And, contrary to so many columns of his, nearly all of what he says could have been said by me as well. Here goes:

President Obama has said we “can't afford to go back to the failed policies of the past,” implying they didn't work. Those past numbers look a lot better than the ones he's posting. We're waist-deep in a financial “Big Muddy,” to paraphrase Pete Seeger, “and the big fool says to push on.”

If Obamacare is not repealed and replaced by a Republican Congress and a President Romney, its sharp tax and spending increases will lead, among other things, to employers hiring even fewer people and laying off the workers they have. There is no healthy economic future if we continue along this line.

But more than a change of administrations is needed. We also must change the way many of us think about the proper role of government, which functions best when it's limited. When people are not limited by government, they do better for themselves and the nation. Why then do so many turn to government when it consistently fails to perform better than the private sector in most categories?

Mitt Romney should be hammering on this theme and not let the Obama campaign pound him as an out of touch, jet-skiing, rich guy. This election is, or ought to be, about whether the country can stand another four years of incompetent, overspending, overtaxing government, or whether it should return to the safe harbor of living within our means and doing more for ourselves.

Spinning numbers won't cure an ailing economy anymore than wishful thinking will improve the condition of a dying man. This administration has put America on a path to socialism. It's for Romney to make the case that the administration's “medicine” is actually killing us.

The only thing I might fault Mr. Thomas on is that he seems to imply that Mitt Romney is failing to make the points in question. And I don't think that is so. But in general, Mr. Thomas gets it right this time. Unusual for him.

"Lies, damn lies, and statistics"

Mark Twain once said, “The remark attributed to Disraeli would often apply with justice and force: ‘There are three kinds of lies: lies, damned lies, and statistics.’” A blog post by Thomas Sowell reminded me of this quote, in pointing out how President Obama can actually find statistics that make his Administration's job record look good:

One of the reasons for the popularity of political rhetoric is that everybody can be right, in terms of their own rhetoric, no matter how much the rhetoric of one side contradicts the rhetoric of the other side.

President Obama constantly repeats how many millions of jobs have been created during his administration, while his critics constantly repeat how many millions of jobs have been lost during his administration. How can both of them be right — or, at least, how can they both get away with what they are saying?

There are jobs and there are net jobs. This is true not only today but has been true in years past.

Back during the 1980s, when there were huge losses of jobs in the steel industry, the government restricted the importation of foreign steel. It has been estimated that this saved 5,000 jobs in the American steel industry.

But of course restriction of competition from lower-priced imported steel made steel more expensive to American producers of products containing steel. Therefore the price of these products rose, making them less in demand at these higher prices, causing losses of sales at home and in the world market.

The bottom line is that, while 5,000 jobs were saved in the American steel industry, 26,000 jobs were lost in American industries that produced products made of steel. On net balance, the country lost jobs by restricting the importation of steel.

None of this was peculiar to the steel industry. Restrictions on the importation of sugar are estimated to have cost three times as many jobs in the confection industry as they saved in the sugar industry. The artificially high price of sugar in the United States led some American producers of confections to relocate to Mexico and Canada, where the price of sugar is lower.

There is no free lunch in the job market, any more than there is anywhere else. The government can always create particular jobs or save particular jobs, but that does not mean that it is a net creation of jobs or a net saving of jobs.

The government can create a million jobs tomorrow, just by hiring that many people. But where does the government get the money to pay those people? From the private economy — which loses the money that the government gains.

With less money in the private sector, the loss of jobs there can easily exceed the million jobs created in the government or in industries subsidized by the government. The Obama administration's creation of “green jobs” has turned out to cost far more money per job than the cost of creating a job in the private sector.

In addition to reducing jobs in the private sector by taking money out of the private sector to pay for government-subsidized jobs, the Obama administration has made businesses reluctant to hire because of the huge uncertainties it has created for businesses as regards the cost of adding employees. With thousands of regulations still being written to implement ObamaCare, no one knows how much this will add to the cost of hiring new employees.

In the face of this economic uncertainty, even businesses that have an increased demand for their products can meet that demand by working their existing employees overtime, instead of adding new employees. Many employers hire temporary workers, who are not legally entitled to benefits such as health insurance, and who will therefore not be affected by the cost of ObamaCare.

When President Obama boasts of the number of jobs created during his administration, the numbers he cites may be correct, but he doesn't count the other jobs that were lost during his administration. His critics cite the latter. Both can claim to be right because they are talking about different things.

What has been the net effect? During this administration, the proportion of the working age population that has a job has fallen to the lowest level in decades. The official unemployment rate does not count the millions of people who have simply given up looking for a job.

If everybody gave up looking for a job, the official unemployment rate would fall to zero. But that would hardly mean that the problem was solved or that the “stimulus” worked. Creating particular jobs does not mean a net increase in jobs.

Interesting. And it is a tremendous indictment of Obama's economic policies, but also a tremendous indictment of the anti-free-trade policies that many labor unions espouse as well. Thomas Sowell has hit it on the head: it is really net jobs that matter. If x-number of people are hired, but many more are laid off because the companies they work for are struggling to survive, we have not been doing well. This is clearly something Obama does not understand. But I am confident that Mitt Romney does. And this is a big reason to retire Pres. Obama this November.

The arrogance of power (local edition)

There are states (like Connecticut) where the counties count for nothing in government. But here in Maryland, counties are important. The cities are mostly small (Baltimore is the only large one, and it is treated as if it were an additional county; note that there is also a county called “Baltimore County,” but it is entirely separate from the city, though they are adjacent.) and many areas, even densely urbanized ones like Silver Spring, are unincorporated areas, so even many of the things that cities do in other states are county responsibilities in Maryland. For example, neither schools nor firefighting are responsibilities of cities in my county. The county runs both, even in incorporated cities; the cities do have their own police departments, but because so many of the areas you might think were cities are unincorporated, the county police are most of what you see.

Two years ago, the county decided on a new source of revenue. Currently ambulance service is provided by the fire department (except for two areas with a separate “rescue” station). Some of the firefighters are paid professionals, others are volunteers; I've never heard of such a hybrid setup anywhere else, but that's the way it is. Whether the service is provided by the fire department or a separate rescue service, it is free of charge. The County Council passed a law, and the County Execuive signed it, mandating a fee for ambulance service. (They put in a provision that if you had no insurance, you would be forgiven the fee — of course, this provision would likely be abolished in the future, if the County Council decided they could use the additional money. Everyone knows how fees and taxes inexorably increase over time. And even for the insured, their premiums will, of course, increase since the insurance companies will base their premiums on the likely cost of their providing service) Now in Maryland, we do not have the initiative, as they do in the West, but in most cases county and state laws can be voided by a referendum. And opponents of the ambulance fee succeeded in putting it on the ballot a couple of years ago, and it was killed by the voters by a substantial margin. (The vote was approximately 54% to 46%. This is the only case in county history where a referendum has overturned a county law.) Well it seems that the County Council cannot take “no” for an answer. The same County Executive, Isiah Leggett (yes, that first name is spelled oddly, but that is how he spells it), has gotten the County Council to revive the ambulance fee.

It looks like there will be another ballot referendum. And the County government is pushing hard for the voters to change their minds. Despite the quoted editorial from a local paper, I do not think the County can convince the people that things are any different from two years ago. But this arrogance of the County government is a clear sign of the power relationships here in the county. The Council has never had more than 2 out of 9 members who were not Democrats (though a Democrat, Councilman Philip M. Andrews, has led the opposition on the ambulance fee question) and currently is 9-0 Democratic, so county politicians perceive themselves as not subject to the voters' removing them. The last referendum fight caused a very sharp divide between the paid firefighters (who supported the fees) and the volunteers (who opposed them), so the County, after the referendum, reorganized the fire and rescue services to reduce the volunteers' power. But, just as two years ago, the volunteers have been in the forefront of the struggle against the fees.

Has anyone seen such arrogance? But I suppose it is to be expected in a county whose voters are supportive of Pres. Obama, the most arrogant politician of recent history.

Indiana and right-to-work

Earlier this year, the State of Indiana put into force a right-to-work law, and the results of this were treated by Asheesh Agarwal in a posting on Friday on the Liberty Law site entitled “After Right to Work Takes Effect in Indiana, Unions Seek a Judicial Bailout.” Agarwal's post is very interesting, and because I am very sympathetic to the ideals of right-to-work legislation (I wish we had it on the national level!), I would like to look into his post in some detail. He begins:

Amidst a series of setbacks at both the ballot box and the court house, the fate of the compulsory union movement may depend in large measure on the outcome of two lawsuits currently pending in Indiana. In early 2012, Governor Mitch Daniels signed into law a bill that made Indiana the nation’s twenty-third right-to-work state. Unions have filed two challenges to that law, one each in state and federal court. The outcome of those lawsuits will help to determine whether Indiana remains a right-to-work state and whether other states follow Indiana’s lead.

Indiana became a right-to-work state after a protracted two-year struggle in the state legislature. In 2011, under the direction by Minority Leader Pat Bauer, Democratic state representatives fled to Illinois for several weeks to deny Republicans a quorum in the state house. The Democrats’ departure generally sat poorly with the public, which sympathized with Republican arguments that the Democrats should do their jobs. Republicans also ran a series of amusing attacks, including a radio commercial entitled, “Won’t You Come Home, Pat Bauer?” (sung to the tune of “Won’t You Come Home, Bill Bailey.” Nevertheless, the tactic worked as Governor Daniels ultimately acceded to the Democrats’ demands to table the right-to-work bill for the rest of 2011, in order to secure passage of his education reform agenda.

Not terribly surprising. As I have said in various posts before, the Democratic Party is heavily beholden to organized labor, one reason I am a Republican. And Democrats, in Texas and Wisconsin as well, have resorted to leaving the state to prevent a quorum when they cannot get their way. Agarwal continues:

In 2012, the legislature again took up right-to-work legislation. This time, the Democratic state representatives walked off the floor for a few days, largely as a symbolic measure. The Democrats knew that the public had lost its tolerance for legislative shenanigans. Democrats also knew that they faced re-election later that year. Perhaps most importantly, in early 2012, Hoosiers were much more concerned with serving as hospitable hosts to the Super Bowl than to refereeing protracted policy disputes. Not coincidentally, Governor Daniels signed the right-to-work bill into law on February 1, 2012 – four days before the Super Bowl.

Under the right-to-work law, individuals are neither required to join, nor prohibited from becoming members of, a union. The law makes it a Class A misdemeanor to require an individual to become or remain a member of a labor organization, or pay dues, fees, or other charges to a labor organization, as a condition of employment. The law also establishes a private right of action for violations, including the ability to obtain damages, civil penalties, and attorneys’ fees.

In its first few months of operation, the right-to-work law has, by almost any measure, helped to attract new businesses to Indiana. Indiana has only 2.2 percent of the nation’s population. In April, the first full month after the law took effect, more than one in eight jobs created around the country were created in Indiana – more than in states several times the size of Indiana. According to the state’s economic development arm, almost fifty out-of-state companies cited the right-to-work law as one reason that they were considering opening a location in Indiana.

This looks to me as only fair. people should not be compelled to join an organization with which they disagree just to get a job. And others have also noted that right-to-work states seem to be doing better at getting business, because having a right-to-work law is perceived as friendliness to business. (Would a national right-to-work law help our job numbers? Perhaps, though the case is not provable.) But, Agarwal continues,

Nevertheless, the right-to-work law is now facing legal challenges in state and federal court, both from affiliates of the AFL-CIO. The federal lawsuit throws a number of charges at the law, most focused on alleged violations of the U.S. Constitution. The union argues that the law violates the First Amendment, Equal Protection Clause, Ex Post Facto Clause, Contracts Clause, Takings Clause, a federal statute, and the state constitution. Among other complaints, the union alleges that the law interferes with existing contracts and restricts its ability to spread its message.

The union’s primary complaint, however, is that the law reduces its revenues. In a revealing affidavit, a union organizer explained that, in light of the right-to-work law, union members would have the freedom to pursue their own self-interest, to the detriment of the union: “I believe the ability to cease paying dues completely may prove too attractive for some of our members to resist. If just 10 percent of the Union’s Indiana members resign, the Union will lose at least $600,000 in annual revenues.” Remarkably, the union essentially concedes that a significant portion of its members would leave the union if they were free to pursue their own self-interest.

The state lawsuit has a narrower focus. That lawsuit alleges that the right-to-work law forces unions to represent non-members for free, in violation of state law. By way of background, the National Labor Relations Act (NLRA) requires a certified union to represent all members of a bargaining unit, including non-members. As a result, a certified union must handle grievances and other matters for non-members, even if those non-members refuse to pay dues. The unions complain that the NLRA thereby allows some employees to “free ride” off of the union’s efforts. (One response to this complaint is that non-members are denied the right to negotiate their own terms and conditions of employment, and may not want the union’s “representation,” so they are actually better characterized as “forced riders.” Another response to this complaint is that the union’s duty to represent non-members should be viewed as a “cost of doing business” – because a certified union has the extraordinary power to represent even non-members, and because that monopoly power enhances the union’s bargaining position, the union therefore also must have the responsibility to represent the non-members).

Of course, I don't think this provision of the NLRA is such a great thing — and if the unions were really concerned with a fair solution, they would ask to be released from the need to represent nonmembers, rather than having the nonmembers forced to become members! But, continuing,

In any event, state law comes into the picture through the backdoor. Indiana’s constitution forbids the government from demanding that anyone provide services, without just compensation. For example, if the state requires an attorney to represent an indigent defendant, the state’s constitution requires that the attorney receive just compensation. According to the union, by enacting the right-to-work law, Indiana has denied unions the ability to require fees from non-members, and therefore improperly “demanded” that unions serve non-members without compensation.

In moving to dismiss both lawsuits, the state pointed out that the right-to-work law does not require unions to do anything. As the state explained, it is the NLRA, a federal law, that requires a union to service non-members. The union is not “required” to service anyone – if a union does not want to represent non-members for free, it need not seek to become the exclusive representative for a bargaining unit that includes non-members. Unions are free to advocate to employers for their members, and to engage in lobbying and other activities, whether or not they are exclusive bargaining representatives.

But fortunately, the unions are not unopposed in their legal activity:

With the help of the National Right to Work Legal Defense Foundation, several employees have filed amicus briefs in support of the state. These employees point out that courts have upheld similar laws in other right-to-work states. The employees also argue that federal law preempts the union’s argument. In other words, if the state’s constitution mandated that non-members must pay dues, then the state constitution would be preempted by federal law, which gives employers the option not to agree to forced unionism requirements, employees the option to deauthorize such requirements, and states the option to prohibit them.

The outcomes of the two lawsuits in Indiana, both pending in trial courts, will help determine the future of the union movement. Indiana lies in the heart of the central Midwest – a/k/a the “Rust Belt” – the historical heart of the union movement. Other Midwestern states, including Ohio and Michigan, are already considering right-to-work legislation. Moreover, unions are already on the defensive on multiple fronts across the country. In the aftermath of the unions’ failed effort to recall Governor Walker in Wisconsin, several other states are now considering ways to restrict public sector collective bargaining. In its recent decision in Knox v. SEIU, the Supreme Court questioned the “free rider” rationale for forced unionism and sent a strong signal that, in the near future, public unions will have to persuade non-member employees to affirmatively “opt in” to fund the unions’ political speech, as opposed to the current system, in which non-member employees have to affirmatively “opt out” of funding such speech. Another loss in Indiana could prove the straw that broke the (unionized) camel’s back.

Perhaps, as I said a few days ago, this may end up being the first of many cases where the precedent of Knox v. SEIU will lead the way to fairer labor laws. I certainly hope so.

Romney's VP pick?

There is an interesting post by William Kristol on the Weekly Standard's blog. It begins:

Erin McPike's “close examination of the [Romney] campaign's activity” at RealClearPolitics suggests four leading contenders for Mitt Romney's vice presidential pick — former Minnesota governor Tim Pawlenty, Ohio senator Rob Portman, Wisconsin congressman Paul Ryan, and Louisiana governor Bobby Jindal. McPike's article is an intelligent explanation of why these men seem to be leading the pack, with New Hampshire senator Kelly Ayotte, Virginia governor Bob McDonnell, and Florida senator Marco Rubio as long shots.

I read Erin McPike's post, which appeared Thursday, shortly after it was posted, and found it quite interesting. But in fact, I think that if you read it carefully, if anything she gave particular emphasis to Pawlenty and Portman, showing flaws in the others that would make them less likely. But then, Kristol continues:

Over at National Review Online, Jeffrey Anderson makes an intelligent case for Paul Ryan as the strongest pick from among them. For whatever it’s worth, I'm with Anderson, in the pro-Ryan camp. And if not Ryan, then I think my second choice would be Rubio or Jindal.

While this is really Kristol's opinion, to which he has a right, the meat of this is the next bit:

But it doesn't matter what Jeff Anderson thinks, or what I think. What matters is what Mitt Romney thinks.

And this is, of course, true. And what Erin McPike posted is certainly only her attempts to analyze what Mitt Romney might be thinking as he mulls over his choice. And, of course, it is interesting to see Kristol's speculations along the same lines, while we await Mitt Romney's decision:

Here's a clue to what Mitt Romney thinks — a clue that McPike doesn't mention, and that the media in general seem to be glossing over. Ann Romney — who presumably is better informed about her husband's thinking than the rest of us — said this week, "We've been looking at [picking a woman], and I love that option as well."

Yes, Ann Romney's comments are meaningful. But of course, we know what happened four years ago with Sarah Palin, so it had better be a woman who can handle the task, and Erin McPike mentioned Kelly Ayotte's qualifications. But Kristol thinks differently:

Who's the woman? It could be Kelly Ayotte or New Mexico governor Susana Martinez. But as much as I like both of them, I suspect Mitt Romney will see them as risky picks, lacking sufficient high-level government experience to unequivocally answer the question of whether they'd be qualified to take over. No, the woman Ann Romney likely has in mind is Condoleezza Rice, the former secretary of state.

Now frankly, I agree that she would be a great choice. If you read my past posts, I thought she'd even be a great choice for the Presidency. But the fact is, she has made it abundantly clear that she does not want the job. So this is, on Kristol's part, seriously wishful thinking. He continues:

Rice wowed the crowd — and seemed to impress Mitt Romney, who was standing beside her — when she spoke in a featured role at a Romney campaign event two weeks ago in Park City, Utah. Rice is qualified, would be a poised (if novice) candidate, and would complement Romney in terms of area of expertise, gender (obviously!), and life experience. Rice offers an unusual combination of being at once a reassuring pick (she served at the highest levels of the federal government for eight years) and an exciting one.

What's more, while the other VP possibilities have decent but middling favorable/unfavorable ratings (and are mostly unknown), Rice's favorable/unfavorable, according to a Rasmussen poll a couple of months ago, is a pretty staggering 66-24. Rice has said she's not interested — but Dick Cheney said he wasn't interested at this point in 2000.

Somehow, I believe Condoleezza Rice's statement of non-interest. Yet Kristol concludes:

Let me be clear: I'm not advocating the selection of Rice. I'm just reading the tea leaves, and the biggest tea leaf out there right now is Ann Romney's comment. It makes sense to take Ann Romney seriously. Cherchez la femme!

I just think Kristol seriously misreads Ann Romney. And perhaps his “I'm not advocating the selection of Rice” is meant seriously, but I tend to doubt it. For my part, I'd certainly be happy if Mitt Romney picked her, and she chose to run. But I don't think it's likely to happen. If Ann Romney's words mean anything, it pushes forward Kelly Ayotte, who seems eminently qualified (see Erin McPike's post).

Tax? Penalty? How about both?

Some people are arguing that “the mandate is not a tax,” but a requirement with a penalty for disobedience. Of course, the Supreme Court has decreed that it is a tax, and that is the only basis on which its constitutionality could be uphold. So which is true?

It is interesting to note, as Alex Becker posted on the Huffington Post blog, that the Massachusetts state government website, the only place where a similar mandate is state law, describes it as a “tax penalty”:

Starting July 1st, 2007, all Massachusetts residents age 18 and over must have health insurance. Every year, you will need to show proof of health insurance on your state income tax return. If you do not have health insurance, you will face a stiff tax penalty. For the 2007 tax year, this penalty is the loss of your personal exemption. In later years, it could be up to 50% of the amount of the cheapest health insurance plan offered through the Commonwealth Connector. If you need to buy health insurance, many new health plans are now available.

In fact, when Mitt Romney originally implemented the Massachusetts law, he well could have believed that it did not constitute a tax, though the State certainly uses that term to describe it now. And it is perfectly reasonable for him to believe, as his aide Eric Fehrnstrom stated, that it is not a tax, and that therefore the PPACA is unconstitutional. Basically, Mitt Romney has a right to his opinions on such matters, just as there are people who believe that Roe v. Wade was wrongly decided, and others think the same of Bush v. Gore. (My own candidate for “terrible Supreme Court decision” is Heller v. District of Columbia.) If elected President, of course, he will have to conform with the Constitution as the Supreme Court has interpreted it, but there is no danger of his failing to do just that. Romney's comments, issued more recently on a CBS news interview program, make this absolutely clear:

The Supreme Court has spoken, and while I agreed with the dissent, that’s taken over by the fact that the majority of the court said it’s a tax and therefore it is a tax. They have spoken. There’s no way around that,

I said that I agreed with the dissent, and the dissent made it very clear that they felt it was unconstitutional, but the dissent lost – it’s in the minority.

(…)

You can try and say you wish [the court] had decided a different way, but they didn’t. They concluded it was a tax; that’s what it is. And the American people know that President Obama has broken the pledge he made. He said he wouldn’t raise taxes on middle-income Americans, and not only did he raise the $500 billion that was already in the bill, it’s now clear that his mandate, as described by the Supreme Court, is a tax.

I think this is exactly the kind of stance a candidate for the Presidency needs to take: whatever he believed, the Supreme Court's decision is the law of the land, unless changed by (1) a Constitutional amendment, or (2) a new Supreme Court revisiting the issue. Mitt Romney is saying exactly the right thing here.

Once more, Cal Thomas has it wrong

Cal Thomas is a man whose columns in the Washington Examiner never fail to strike me as full of fallacies. To anyone who considers me to be of the political Right and Thomas likewise, this may be surprising, but it goes to show how much is encompassed by the term “right-wing.” Today's column, entitled “The ‘Oprahfication’ of America,” shows how far apart we are. It begins:

When asked at the close of the Constitutional Convention in 1787 what the Founders had wrought, Benjamin Franklin famously said, “A Republic, if you can keep it.”

That question might also be put to the five Supreme Court justices who voted last week to uphold the constitutionality of the Patient Protection and Affordable Care Act, which mandates health insurance for most Americans, based on twisted logic that it is a tax and thus within the power of the Congress to impose on an already overtaxed people.

In fact, Mr. Thomas needs to read the Constitution more carefully. Yes, I would have preferred that the PPACA be ruled unconstitutional, but Chief Justice Roberts' reasoning that (1) it is a tax and (2) therefore constitutional is hardly “twisted logic.” It is certainly a collection by the IRS of money from the public, which needs to be declared on the income tax return. To argue that therefore it is a tax, even though it was declared by its sponsors not to be one, is certainly a way of reading the law, even if not the way I would have done so. Then, Mr. Thomas goes on — I've omitted some words:

Among the avalanche of post-mortems delivered by “experts” and pundits to the court ruling, one may have gotten closest to answering the question about what was in the mind of Chief Justice John Roberts and how it reflects on what our nation is becoming.

Paul Rothstein, a professor at Georgetown Law School, taught Roberts when he was a student. In an interview with Washington radio station WTOP, Rothstein said it was empathy for the uninsured and disdain for partisanship that swayed Roberts, making his the decisive vote.

”It's a very odd decision,” said Rothstein. “The conservative guy went liberal.”

Rothstein further speculated about Roberts' motives when he said the chief justice's experience with his own health issues and working in big business might have contributed to his decision. Rothstein said Roberts had good health care when he needed it and that “He was probably thinking about the millions of people who are less fortunate than he is.”

Rothstein said Roberts needed to land on “the right side of history and morality,” and these, too, probably influenced his vote.

Notice in all of this there is nothing about the Constitution. And what's this about morality? Whose morality would that be? Is it a fixed morality or one based on opinion polls and wanting to land on “the right side of history,” whatever that means? Liberal justices regularly decide cases based on such nonconstitutional irrelevancies. Why must a conservative?

This is the “Oprahfication” of America in which feelings trump truth and personal experience and class guilt rule, not the Constitution. Oprah Winfrey, who endorsed Obama in 2008, might head a new cabinet department should Obama win a second term: the Department of Feelings.

The Supreme Court didn't worry about morality and which side of history it was on when it decided to make prayer and Bible reading illegal in public schools a half-century ago -- and what about the “morality” of ripping constitutional protection from unborn babies? Whose moral code decided that case?

This sounds like selective morality by those academics who will write history. Such reasoning is not based on sound legal principles like the Constitution, much less a moral code created by One more “supreme” than the Supreme Court.

Well, first Mr. Thomas quotes Prof. Rothstein on Chief Justice Roberts' motives, then remarks, “Notice in all of this there is nothing about the Constitution.” Now first of all, Prof. Rothstein may have taught Chief Justice Roberts, but this does not make him clairvoyant about the Chief Justice's motivation. Just because Prof. Rothstein did not mention the Constitution does not mean that Chief Justice Roberts did not keep it firmly in mind. And in fact his decision is firmly grounded in that document. He mentioned that PPACA was not authorized by Art. I Sect. 8 Clause 3 (the Commerce Clause) or Clause 18 (the “Necessary and proper” clause), but fell under Clause 1 (the Taxing Clause). If Mr. Thomas actually read this decision, he would find this out.

But it is clear that to Mr. Thomas, the governing document is not the Constitution, in any case, but his reading of the Bible. Certainly, when he says, “what's this about morality? … The Supreme Court didn't worry about morality and which side of history it was on when it decided to make prayer and Bible reading illegal in public schools a half-century ago -- and what about the “morality” of ripping constitutional protection from unborn babies? Whose moral code decided that case?” he reveals this. Prayer (which cannot be other than according to some religion's ideas) and Bible-reading (Whose Bible? Jewish, Catholic, and Protestant Bibles do not agree, not to mention Moslems and other religions, who have other scriptures that are not to be found in Cal Thomas's Bible) cannot be other than part of an establishment of religion. And if Cal Thomas claims otherwise, I would love to debate him. And his gratuitous reference to “unborn babies” is even further afield, as even within his own precious Christian religion, denominations differ as to when a “baby” begins to be. As I say, it's not just the Bible that he is trying to elevate above the Constitution, but his reading of the Bible. And it is not the job of the Supreme Court to base their decisions on the Bible — even less their job to base them on Cal Thomas's reading of the Bible. So I praise them for just those acts — “mak[ing] prayer and Bible reading illegal in public schools a half-century ago” — for which Mr. Thomas condemns them. But when he speaks of “One more ‘supreme’ than the Supreme Court,” he clearly oversteps his bounds. Cal Thomas has every right to act in accordance with his own religious beliefs — the First Amendment gives him that right. And if he wants to defer to “One more ‘supreme’ than the Supreme Court,” as an individual he can do so. But to the Justices of the Supreme Court, this is not an option. They have sworn oaths to uphold the Constitution — oaths to whatever Supreme Being they respect. And their failure to uphold that Constitution, in consequence, as a violation of their oath, is an abomination before that very “One more ‘supreme’ than the Supreme Court” to whom Mr. Thomas refers.

Even more thoughts on the health care decision

Some conservative bloggers/columnists are assailing Chief Justice John Roberts as a “traitor to the conservative cause.” Others consider it a brilliant gambit, ranking with Marbury v. Madison, where Chief Justice John Marshall gave President Thomas Jefferson a short-term victory in exchange for vastly increasing everyone's willingness to concede important powers to the Supreme Court. I don't think either group is correct — but the second is closer to the truth. For it is certainly true thatPresident Barack Obama got a short-term victory, but in the long term it helps those of us who might have preferred Chief Justice Roberts to have joined Justices Alito, Kennedy, Scalia, and Thomas in striking down the bill. It's true that I would have preferred a decision to strike the bill down, but this decision — especially the way it was worded — is, on balance, a victory for a more conservative approach.

First of all, this decision made it clear that the Commerce Clause has limits. It may not be used to regulate inactivity. This is exactly what the people challenging the “Obamacare” mandate were trying to have the Court say. This part of the decision is a big victory for constitutionalism.

Second, although it validated the mandate under the “lay and collect taxes” clause, it does not — as some conservatives tried to make it the case — mean that Congress can compel you to do anything at all by simply levying a tax on all people who do not do so. If you read the decision, it passed muster by levying a tax so small that anyone who does not want to buy an approved health insurance policy still comes out ahead, comparing the amount of the tax/penalty to the cost of a typical policy. It is quite clear that Chief Justice Roberts might have ruled differently if the amount of the tax/penalty were such that it were a real compulsion.

Thirdly, as some people have posted, it makes the election of Mitt Romney in this November's vote more likely. President Obama cannot run against the Supreme Court — it gave him a pass on “Obamacare.” He cannot say he has not raised taxes on the middle class — claiming it was not a tax won't wash, because the Supreme Court has said that the only reason it is constitutional is that it is a tax — whatever the President says. And since the Court has given notice that it is a constitutional exercise of the power granted to elected officials under Article I, Section 8, the only way to kill Obamacare — which is what the majority of Americans want — is to elect a President and Congress that will vote to repeal it, and in the case of the President, that means Mitt Romney.

No, it's not the decision I had wanted to see. But on balance, it produced more good than harm.

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.”