State of the Union

If the Individual Mandate is Constitutional, the Commerce Clause has No Limits

Politico’s excellent overview of some of the rulings that might be brought to bear in the deliberations over the President’s healthcare law next week explains, in layman’s terms, how the decision could very well “hinge on wheat, pot and broccoli.”

The 1942 case Wickard v. Filburn is one of the central precedents to both sides’ arguments, which upheld the federal government’s right under the commerce clause to regulate production before goods entered the marketplace. The farmer Roscoe Filburn was producing more than double the amount of wheat the Roosevelt administration’s quotas allowed, but he argued that by using the surplus himself – to feed his chickens – the activity failed to meet the definition of interstate commerce.

Even “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market,” Justice Robert Jackson wrote for a unanimous court in Wickard v. Filburn. “Home-grown wheat in this sense competes with wheat in commerce.”

The two well-known conservative judges who upheld Obama’s health care law, appeals court judges Jeffrey Sutton and Laurence Silberman, put great weight on the wheat case.

“If, as Wickard shows, Congress could regulate the most self-sufficient of individuals — the American farmer — when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it,” wrote Sutton, a former law clerk to Justice Antonin Scalia. (link)

It’s worth pointing out that the purpose of the grain quotas was to raise the price of wheat, the Affordable Care Act was sold as an effort to keep healthcare costs down. And the logic of Wickard v. Filburn begins to feel strained when it’s applied to today’s world of vertically-integrated multinational companies – that’s basically what Filburn was doing, vertical integration. Say, for instance, the government decided to humor Steven Chu and raise the price of petroleum by imposing quotas on the amount of gasoline companies were allowed to refine. A strict interpretation of Wickard v. Filburn would mean ExxonMobil could not produce sufficient excess gasoline to power its fleet of trucks to transport the amount of gasoline the quota allowed. It could either sell less than permitted by the quota or purchase gas from its competitors, a bizarre and inefficient business arrangement.

Unfortunately, Wickard v. Filburn has morphed far beyond its original purpose of upholding Roosevelt’s New Deal price-fixing schemes. Even Justice Scalia concurred with the majority opinion in Gonzales v. Raich (2005) that “Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

The commodity to which they referred was marijuana, and the ruling upheld Congress’ authority to criminalize the cultivation of a handful of medicinal houseplants in compliance with state law. This case is interesting because it introduces federalist tensions into the debate over the limits of the commerce clause; 26 states are now challenging the healthcare law based on the idea that Massachusetts can do what it wants with regard to individual mandates, but a nationwide mandate is unconstitutional. Gonzales v. Raich is a sort of anti-circumvention decision, that the government has the blanket privilege to regulate any activity that might have an impact on the government’s ability to regulate interstate commerce.

However, the 1995 ruling U.S. v. Lopez affirmed some limits on the commerce clause, deciding that if Congress could regulate an activity as distant from interstate commerce as the transaction of a handgun between two individuals, then the power would effectively be unlimited. As the Politico headline snarkily put it today, “Gun-free schools: a bridge too far.” Chief Justice Rehnquist’s majority opinion laid out three broad categories covered by the interstate commerce power; the channels of interstate commerce, its agents, and activities that “substantially relate to” or “substantially affect” it.

The current debate concerns whether inaction is an activity the federal government can regulate. The somewhat surprising decision of U.S. v. Lopez shows that the court recognizes some limits to the commerce power, meaning they will probably want the Obama administration to demonstrate the limits of the commerce clause should the ACA be upheld. If you can think of any, you’re more clever than I am.

So the individual mandate could be struck on those grounds, which leaves the rest of the law. The New Deal was the last time a major regulatory law was deemed unconstitutional in its entirety. The court’s ruling in Schechter Poultry Corp. v  U.S. laid out some limits on what could be defined as interstate commerce and also took issue with the delegation of power from the legislature to the executive branch in the form of discretionary industrial regulations.

Today the House voted to repeal the Independent Payment Advisory Board, though a corresponding bill has no chance of making it to the Senate floor. Sen. Mitch McConnell (R-KY) has said that in the ideal world where he’s majority leader, a full Obamacare repeal would be the first vote before the chamber. Expect a more muted tone from Senate Dems who are afraid of voicing support for the unpopular law. Not to worry though, various political organizing machines of both sides have been churning diligently to add entertainment to entitlement; next week promises rallies, prayer vigils, and more astroturf than Gillette Stadium.

Some links:

AP – High court has options on health care law

NYT – At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat

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Republicans Show Their Big-Government Credentials

That the Senate voted down the refunding of the Export-Import Bank should not be cause for celebration. While the vote does initially look like a victory for supporters of free enterprise and entrepreneurship, when viewed in the political context the protectionist motivations for many of the conservative votes is revealed.

One would hope that conservative Senators would vote against a protectionist big-government bank out of principle, but this does not appear to be the case.  Senators who voted against the amendment, like Senate Minority Leader Mitch McConnell, have said that they support the ExIm Bank’s eventual reauthorization. The reason that Republicans voted against the reauthorization of funds is that with the ExIm Bank’s amendment attached to the Jobs Act it is possible that the House would kill the bill. The Jobs Act (which has support from many in the House and the President) with the ExIm Bank amendment attached would be difficult to pass. Read More…

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Fluke the Feminauthoritarian

“This doesn’t mean that it should be a political litmus test, it doesn’t mean that they have to be Democrat or Republican, but there should be a litmus test that they be pro-women. Our votes have to include that requirement at least. And it should be a litmus test that applies to male candidates as well.”

So said Sandra Fluke, at a Women’s History Month celebration hosted by Rep. Elanor Holmes Norton (D-DC) at the Rayburn Building yesterday afternoon. She was an honored guest, alongside DNC Chair Debbie Wasserman Schultz (D-Fl).

The attending Democratic lawmakers are members of a party chaired by a woman, the national committee of which five of the nine officers are women, and whose ranking House member is also a woman. Presumably they would all pass Fluke’s litmus test. It’s moments like this one that lay bare the left’s “War on Women” narrative as an electoral strategy. If they really took access to affordable contraception seriously, then why Sandra Fluke’s conspicuous silence regarding making them available over the counter?

The truth is she wasn’t brought on board to air sensible compromises, she made that clear with her wildly inflated statement that birth control could cost up to $1000 a year. Fluke was a co-president of Law Students for Reproductive Justice at Georgetown, where she waged a three-year campaign challenging the college’s right to not subsidize something their religion deems to be murder and authored a journal article defending the government’s responsibility to pay for gender reassignment surgery. Moreover, her boyfriend’s father has given tens of thousands of dollars in donations to Democratic candidates and she is now represented by the PR firm of former White House Communications Director and MSNBC contributor, avowed Mao Zedong fan Anita Dunn.

Despite the impression one might get from Rick Santorum’s moralistic and politically suicidal obsession with birth control, the fight over a contraceptive mandate might not be a losing issue for Republicans. Obama’s approval rating has tanked in the last couple of weeks while the stupid Manichean showdown between Fluke & Rush was on heavy rotation, and it’s been widely noted that even though a large number of Catholics use birth control, they object to the government forcing its will upon the church.

The birth control restrictionist faction of which Santorum is a part is probably too strong for any of the over-the-counter talk to get serious traction in the GOP. On the other side PhRMA in nanny-state clothing will stifle any cries to remove contraceptives from the government requisitioning scheme that is mandated healthcare. Fluke’s litmus test does nothing to upset that balance of power.

Michelle Fields of TheDC has the poster child for subsidized contraceptives’ immoderate words on video here (the embed wasn’t working for some reason). Be sure to catch the part at the end where she talks about her fanmail telling her to run for office, and flatters them by saying, “maaaybe someday I will.”

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German Sabotage and America’s Entry Into World War I

Since neoconservative journalists, at least to my knowledge, have not been lately slamming the “German connection,” I rejoiced at a feature article in yesterday’s New York Post (March 20) going after the “series of German outrages” that helped push us into World War One. A commentary by Thomas A. Reppetto, on German saboteurs during World War, focuses on an explosion at an ammunition factory on Black Tom Island on July 30, 1916, which is now Liberty State Park in New Jersey. In this incident and other similar ones that erupted in the area between New York and Baltimore, German agents prevented by violent means the delivery of arms “to the Allied powers.”

Reppetto suggests that the federal government dealt effectively with such explosions, by declaring war on Germany and then taking counter-espionage into its own hands. At first this could not be done because we were mollycoddling Germans residents in the US while indulging such uncooperative figures as the authoritarian mayor of Jersey City Frank Hague. Reppetto does not hide the moral here, which is drawing a direct line between the sneaky, anti-democratic Germans in World War One and the present terrorist danger. “New Jersey officials need to recall the lessons of Black Tom.” “Islamic militants have operated out of Jersey City,” just as once other bad folks did.  Read More…

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Will Red Meat Really Kill You?

You probably heard about the study published last week in the Archives of Internal Medicine which links red meat to a substantially increased risk of death from all causes. The story has spread through flurry of news reports and proliferated through Facebook and Twitter feeds everywhere. From the New York Times:

Eating red meat is associated with a sharply increased risk of death from cancer and heart disease, according to a new study, and the more of it you eat, the greater the risk.

… after controlling for [smoking, body mass index,] and other variables, they found that each daily increase of three ounces of red meat was associated with a 12 percent greater risk of dying over all, including a 16 percent greater risk of cardiovascular death and a 10 percent greater risk of cancer death. …

“When you have these numbers in front of you, it’s pretty staggering,” said the study’s lead author, Dr. Frank B. Hu, a professor of medicine at Harvard.

Judging from these results, on top of the fact that health authorities have been telling us for decades that red meat is unhealthy, there can’t be any doubt that pulling back on all that pork and beef is a good idea, can there?  Read More…

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Ill., Disposed

Mitt Romney is comfortably poised to win the lion’s share of Illinois’ 54 delegates this evening. Based on his substantial polling lead, the preferences of urban and suburban Republicans, and outspending Santorum 21-1 in the upstate media market, it’s likely that the frontrunner will win the 12 congressional districts of Chicagoland, leaving Santorum fighting for the other five.

Nate Silver recaps:

A week ago, Mr. Santorum seemed to have a decent shot in Illinois. He was down by just four points in The Chicago Tribune’s poll, which has had a strong track record — and that was before his wins in Alabama and Mississippi, which got him some favorable news coverage. The demographics of Illinois aren’t terrific for Mr. Santorum, but almost half of the Republican vote there is outside the Chicago metropolitan area, and downstate Illinois should be friendly terrain for him.

The polls have broken sharply against Mr. Santorum in Illinois, however. He trailed Mr. Romney by 14 and 15 points in two polls conducted over the weekend there and is behind by a similar margin in our forecast average, which gives him a 3 percent chance of winning the state.

As for the other candidates, Newt Gingrich appears to be broke and on vacation, and Ron Paul is nowhere to be seen, though his supporters are making quite a scene in Washington and Missouri, both caucus states with non-binding primaries.

The real action in Illinois today is an unusual primary battle in the northern 16th Congressional District, where the Tea Party-backed ten-term incumbent Don Manzullo (R-Ill) is running against freshman Adam Kinzinger (R-Ill), who has been backed by Majority Leader Eric Cantor’s (R-Va) Young Guns PAC.

Redistricting meant Kinzinger faced the Morton’s fork of challenging either Jesse Jackson, Jr. (D-Ill) in a liberal district or taking on Manzullo, a veteran conservative. Riding a wave of Tea Party support into office in 2010, the young Kinzinger failed to join the Tea Party Caucus once he got there, and his critics say he’s gone soft on cutting spending. His apostasies have been a boon to Manzullo, who has been endorsed by several notable conservative organizations including Freedom Works, the ACU and RedState.

David Catanese reports:

These conservative groups are attempting to frame the first GOP member-on-member battle of the 2012 cycle as a test of ideological purity, arguing that in 14 short months, Kinzinger has lost his way. They cite his timidity on votes to cut discretionary spending and his abandonment of the conservative Republican Study Committee in favor of the more moderate Tuesday Group. A Sarah Palin endorsee in 2010, Kinzinger declined to join the Tea Party Caucus once he got to Washington.

“We backed some guys last time that are a little disappointing, who took votes we don’t support. This is an example of a guy who definitely strayed,” said Brendan Steinhauser, FreedomWorks’s campaign director. “It’s a continuing struggle between the tea party movement and the establishment.”

Among some members of the Illinois delegation, there’s a sense that Manzullo could’ve avoided this bloody intraparty fight by retiring. “Here’s a guy with a bright future, clearly people see a lot in him. It’s like, you’ve been in 20 years, let the young guy go have his shot,” said an Illinois operative unaligned in the race.

Cantor has put a significant amount of effort into supporting young Republican House members and they comprise a large chunk of his support. Backing Kinzinger is a way to demonstrate that he’s true to his word (he’s already framing it that way) and if Kinzinger wins, that he wasn’t afraid to take sides in tough primaries.  If Manzullo wins, however, there will be bridges to mend. The Illinois congressman told The Hill on Monday that Cantor “needs to step down as majority leader” for his endorsement.

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Murder, Incorporated

George Zimmerman’s shooting of Trayvon Martin in Sanford, Florida on February 26 is gaining national attention; and for good reason. Adam Weinstein has a primer of events and recordings of several calls to placed to 911, including Zimmerman’s. Here is a clip from Zimmerman’s call (full transcript):

Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else. Zimmerman: Okay. These assholes they always get away. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse. Dispatcher: So it’s on the lefthand side from the clubhouse? Zimmerman: No you go in straight through the entrance and then you make a left…uh you go straight in, don’t turn, and make a left. Shit he’s running. Dispatcher: He’s running? Which way is he running? Zimmerman: Down towards the other entrance to the neighborhood. Dispatcher: Which entrance is that that he’s heading towards? Zimmerman: The back entrance…fucking [unintelligible] Dispatcher: Are you following him? Zimmerman: Yeah Dispatcher: Ok, we don’t need you to do that. (emphasis added)

Zimmerman appears excessively suspicious and he never gave the dispatcher a solid example of wrongdoing by Martin to warrant  suspicion. The Sanford Police appear to have accepted Zimmerman’s version of the event uncritically:

“Mr. Zimmerman’s claim is that the confrontation was initiated by Trayvon,” Police Chief Bill Lee said in an interview. “I am not going into specifics of what led to the violent physical encounter witnessed by residents. All the physical evidence and testimony we have independent of what Mr. Zimmerman provides corroborates this claim to self-defense.”

To claim self-defense, someone has to show there was danger of great bodily harm or death, Lee said. “Zimmerman had injuries consistent with his story,” Lee said.

Zimmerman had a damp shirt, grass stains, a bloody nose and was bleeding from a wound in back of his head, according to police reports.

“If someone asks you, ‘Hey do you live here?’ is it OK for you to jump on them and beat the crap out of somebody?” Lee said. “It’s not.”

The police chief supports the claim that Martin initiated the confrontation even though Zimmerman indicated to the 911 dispatcher that he was pursuing the unarmed teen. There is some evidence of an altercation before the shooting, but Martin had as much right to defend himself as Zimmerman and he had a very good reason to fear the man who shot him.

Leave aside the racial angle for a moment—Trayvon Martin was black—the state of the law in Florida is seriously distorted. Not only is there no duty to retreat in a public place before shooting someone; if this case is typical, Armed Floridians can start the trouble and still get away with murder. Emily Bazelton at Slate quotes a Florida prosecutor saying (before this shooting occurred) “The ultimate intent might be good, but in practice, people take the opportunity to shoot first and say later they had a justification. It almost gives them a free pass to shoot.” It would appear that he is correct, although the Federal Government is now investigating the case.

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Revising the News

I am wondering if other TAC readers noticed the metamorphoses in a New York Times article that I noted last night and this morning?  A featured article appeared on the NYT website last night under the headline “United States War Game Sees Disaster in an Israeli Attack on Iran.”  By this morning that headline had replaced “disaster” with “perils,” softening the message while the link itself says “dire results.”  If one actually reads the article, disaster would appear to be much the best word, the text describing a conflict that would quickly become regional and drag the US in with unfortunate consequences for Americans in general and for the military presence in Asia.  While it is refreshing that the mainstream media is finally waking up to the fact that war with Iran would not be a “cakewalk,” it is also discouraging to note that efforts are being made to manage the message to keep the attack option on the table.  No doubt Senators Graham, McCain and Lieberman would regard “perils” as an acceptable risk to take.

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The Glaring Inequality of Obamaville

Rising inequality “is the defining issue of our time,” said President Obama in his Osawatomie speech that echoed the “New Nationalism” address Theodore Roosevelt delivered in that same Kansas town a century ago.

In the last two decades, the average income of the top 1 percent in the U.S. has grown by 250 percent, bemoaned our populist president, while the income of the average American has stagnated.

“This kind of inequality — a level we haven’t seen since the Great Depression — hurts us all,” said Obama.

“Inequality … distorts our democracy. … It gives an outsized voice to the few who can afford high-priced lobbyists … and runs the risk of selling out our democracy to the highest bidder.”

But is the president, a former disciple of radical socialist Saul Alinsky, truly serious about closing the inequality gap? Read More…

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Obama’s Grievance Politics

Despite high unemployment and soaring gas prices, it seems the Obama administration may survive the November election. This is due not only to Republican infighting but also to the support given to liberal Democrats in the media, educational establishment, and entertainment industry. But even these factors may not tell everything. Perhaps more importantly, Obama and his advisors have begun playing up ethnic and gender grievances in a way that may hurt Republicans.

The administration has taken a number of positions intended to mobilize its base in the same record numbers as it was able to do in 2008. It has doggedly opposed attempts by states like Arizona and Alabama to deal through legislation with massive illegal immigration. The feds have not addressed this problem with any particular vigilance, but they have denied the states the power to cope with it. At the same time Obama has suggested that dislike for Hispanics and other minorities lie at the base of this heated resistance to the influx of illegals into certain states, a situation that, by the way, has added significantly to local social costs and crime. More recently, the administration has drummed up another supposed indication of Republican bigotry, namely the insistence by GOP officials that would-be voters provide identification, to guard against fraud. This law is supposedly aimed at keeping blacks from voting, particularly in Southern states, since it apparently goes against a way of life that excludes identifying oneself before voting. Civil rights leaders have now joined the chorus of condemnation against “racist” Republicans who expect voters to provide the same ID-forms as might be asked of someone buying a bottle of booze.

The recent testimony concerning publicly financed contraception by Sandra Fluke, a Georgetown law student who is considerably older and more politically engaged than the media would lead us to believe, opened can of worms for the by now anxious GOP another. Obama managed to turn to his advantage an issue that was creating flak for him, requiring religiously affiliated institutions to pay for birth control and abortifacients. Fluke became a stand-in for every victim of (a long-gone) male patriarchy. The fact that GOP shock-jock Rush Limbaugh weighed in by insulting Fluke complicated the problem. Academics and administrators, including clergy, fell over themselves defending Fluke and accusing Limbaugh and the party he fronts for of being complicit in the high crime of sexism. The gender gap surfaced again dramatically in recent polls, to the detriment of Republicans, and this has impacted most severely on Rick Santorum, the presidential candidate who has been emphasizing his religious traditionalism. In a two-way race, Santorum would be eaten alive by Obama. Read More…

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