ObamaCare: Liberty Lost the Battle, But the War’s More Winnable Than Ever

Conservatives were right about John Roberts.
Not this year, obviously: nobody expected the Chief Justice to fall for the White House’s most laughable justification of ObamaCare’s individual mandate. But we were right in 2005, when George W. Bush nominated the blank-slate jurist to the Supreme Court. Ann Coulter warned us that “stealth nominees have never turned out to be a pleasant surprise for conservatives.” I’ve previously voiced my fear that Roberts worships at the altar of stare decisis.
Despite Roberts’ reasoning, the mandate is manifestly nota tax. As the bill’s text and legislative history clearly show, it’s a penalty expressly justified as a regulation of interstate commerce. Barack Obama himself emphatically denied that it was a tax. Hell, the Court itself acknowledged it’s not a tax—for the purpose of ruling on a different part of ObamaCare. As Anthony Kennedy’s dissenting opinion says, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” (To say nothing of the real elephant in the room: even if it was a tax, it still wouldn’t fall under enumerated powers.)
Jay Cost looks on the bright side: the Court rejected the mandate’s Commerce and Necessary & Proper Clause rationales, which sets valuable precedent. They also affirmed that states can’t be denied Medicaid funds for noncompliance.
That’s all well and good…but is one constitutional provision really protected when government can get away with the same thing by simply calling it something else? Brent Bozell is right: “there will be no rehabilitating” of John Roberts’ new image “as a traitor to his philosophy.” Thanks, Dubya!
Make no mistake: today was a defeat for constitutional fidelity, individual liberty, limited government, and true healthcare reform. But the American people may yet have the last laugh.
The general public deeply, deeply opposes ObamaCare, and doctors keep reaffirming that it’ll make American healthcare worse. The Court just guaranteed that a clear loser for Obama will remain a prominent issue throughout the rest of the campaign. We’re already seeing signs that conservatives are giving Mitt Romney a much-needed enthusiasm boost.
Beyond that, the ruling added two brand-new wrinkles to the narrative, neither of which works to Team Obama’s benefit. First, the mandate can now be characterized as a tax increase, an argument Sen. Marco Rubio is already expertly deploying. Second, Obama now has a new circle to square: were you lying about the mandate not being a tax then, or are you lying now?
Hopefully Romney will incorporate these details into his rhetoric sooner rather than later (his pre-scripted reaction to the ruling desperately needs a tune-up). Either way, the bottom line is that it’s more important than ever for conservatives to dedicating ourselves to keeping the House, retaking the Senate, and—and here’s the part some conservatives still want to suicidally ignore—retaking the White House. Only by electing Mitt Romneycan we hope to repeal ObamaCare and appoint justices with greater respect for the Constitution.
Let’s get to work.

New on Live Action – Has the OK Supreme Court Inadvertently Put the "Right to Choose" on the Fast Track to Oblivion?

Check out my latest Live Action post:
Pro-aborts may have declared victory in the wake of the Oklahoma Supreme Court’s decision to invalidate the Oklahoma Personhood Act, but according to Personhood USA President Keith Mason, pro-lifers are the ones who should be celebrating, since the decision puts personhood on the fast track to the highest court in the land:

The Oklahoma Court’s decision relied heavily on Planned Parenthood v. Casey, and in moving to deny the people’s right to petition on behalf of the preborn, they have turned this case into a federal issue, deciding “the only recourse available to this Court is to follow…the United States Supreme Court.” The ruling has set us up for a direct challenge to Planned Parenthood v. Casey.
The Oklahoma Court ruling has, inadvertently, propelled the Personhood movement several years forward!
The implications of this case are enormous! Not only will the Personhood movement receive more exposure, which results in an unmatched opportunity for education and saving babies’ lives, but there is a very real chance for victory. The Oklahoma case could be the first to directly and successfully challenge Planned Parenthood v. Casey, dismantling the abortion stronghold in America, and demanding basic human rights for every single human being. This is cause for celebration!

The Oklahoma high court called the measure “clearly unconstitutional,” claiming the Supremes’ prior rulings on abortion have settled the issue. If the Supreme Court were to hear the case, they’d be taking the explosive step of reconsidering Roe v. Wade and Planned Parenthood v. Casey’s central proposition: that the Constitution protects the “right to choose” abortion. That’s a high-risk/high-reward proposition, to put it mildly.
Read the rest at Live Action.

New on Live Action – Rethinking the Intersection of Church, State, and the Right to Life

My latest Live Action post:
When pro-aborts can’t win the argument with biological shell games and character assassination, they usually resort to disqualifying pro-life opinions from consideration by labeling them violations of America’s separation of church and state. So it’s worth spending some time on a broader look at the way abortion politics intertwine with religion.
Contrary to the insistence of abortion defenders, the case against abortion is not exclusively theological. It has two core factors: the empirical observation that individual human life begins at fertilization, and the moral/philosophical proposition that all human beings have an equal claim to live.
Clearly, the former point has nothing to do with religion. Admitting that zygotes, embryos, and fetuses are live human beings is simple biology. If protecting the right to life after birth isn’t “imposing religion,” then neither is concluding that such shared humanity entitles the pre-born to be included in that same protection. Indeed, pro-lifers are just advocating for a broader, more consistent application of the general right-to-life principle the rest of society already accepts, albeit selectively.
Read the rest at Live Action.

New at Live Action – Bogus Church-State Ruling Defunds Bishops’ Aid to Sex-Trafficking Victims

My latest Live Action post:
As if we didn’t have enough on our plate with the battle over forced contraception coverage, the Obama administration is currently embroiled in another religious fight, this time with the U.S. Conference of Catholic Bishops over federal aid money for sex-trafficking victims.
The Trafficking Victims Protection Act provides money to fund medical and mental health services for victims of sex trafficking, and since 2006, the bishops have been allowed to limit the money they receive to contractors who are uninvolved in abortion. But in its infinite wisdom and compassion, the current administration has decided to revoke the bishops’ grant money entirely rather than keep funding their charitable work. Now a federal judge has ruled against the bishops:

Although the nation’s Catholic bishops said the ACLU lawsuit is “without merit and an affront to religious liberty,” U.S. District Court Judge Richard G. Stearns ruled on March 23 that the government’s accommodation of the decision not to make abortion referrals is unconstitutional. Stearns, a Massachusetts judge, said the government violated the Establishment Clause of the First Amendment “insofar as they delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds, and thereby impliedly endorsed the religious beliefs of the USCCB and the Catholic Church.”
Stearns also said is not about forcing the bishops to violate their pro-life views but about “the limits of the government’s ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them).”

As a matter of policy, HHS’s decision is indefensible. It’s disgusting enough when the government funds abortion directly, but to throw out all of an organization’s charitable work, which is achieving the stated goal of helping sex-trafficking victims, simply because that organization’s members don’t want to be complicit in abortion?
Read the rest at Live Action.

So What’s This About Muskets and the Commerce Clause?

In their desperation to make ObamaCare’s individual mandate not seem blatantly illegal, liberals have taken to citing a 1792 law requiring Americans to purchase muskets as proof that they’re not stretching the Commerce Clause beyond the Founders’ intent. Too bad for them that Randy Barnett at Volokh nuked that argument over a month ago:
5. At the hearing, Professor Dellinger mentioned that Congress had once passed a law requiring individual male citizens to provide themselves with muskets, gear and uniforms of a certain specification. I believe Professor Dellinger was referring to the Militia Act of 1792, which required all able-bodied male citizens, 18 years of age or older, to be enrolled in a militia and provide themselves with certain supplies for that service. 
a. Do you believe Congress most likely relied on its Commerce Clause powers in passing that statute?
Congress was relying on its Article I, section 8 power “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States . . . ” The militia power, and the duty of a citizen to serve, pre-existed the formation of national government.
b. Do you believe the Militia Act of 1792 would have been a permissible exercise of Congress’ authority if it were based solely on Congress’ Commerce Clause powers?
It would not.
c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government? 
Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.

New at Live Action – Oklahoma Judge Nixes Ultrasound Law, Pretends Abortion Is Healthcare

Check out my latest Live Action post:
Not every case can be a winner. In Oklahoma, District Judge Bryan Dixon has invalidated the state’s law requiring abortionists to show their patients ultrasound images and read them descriptions of their babies before performing abortions:

District Judge Bryan Dixon ruled the statute passed by the Oklahoma Legislature in 2010 is an unconstitutional special law, and is [sic] can’t be enforced because it addresses only patients, physicians and sonographers dealing with abortions without addressing other medical care.

In response, Oklahomans for Life Chairman Tony Lauinger points out that “abortion is different than any other procedure,” and therefore regulations on it shouldn’t necessarily have to be uniform with other procedures. Which seems like basic common sense—even similar medical procedures and conditions can have a wide range of differing nuances and circumstances, requiring different considerations. Why should a judge be able to keep Oklahoma from taking those differences into account?
Read the rest at Live Action.

New at Live Action – Kansas Judges in Hot Water for Donating to Pro-Life Cause

A bit of a scandal is brewing in Kansas over two sitting judges, Eric Yost and Jeffrey Goering, who have each donated $100 to the Kansans for Life PAC, yet have not recused themselves from abortion-related cases. This is perfectly legal in Kansas, but not everyone is satisfied:

“Judges are held to the highest conduct standards, and they should be,” said Adam Skaggs, senior counsel at the Brennan Center for Justice at New York University’s law school. “The best practice is going to be to avoid contributing to political organizations because of the inevitable appearance of partiality that those kinds of donations create.”
Kansas Sen. John Vratil, a Republican member of the Senate Judiciary Committee and an attorney, said he wants to examine the state’s rule for political contributions by judges.
“It can’t be good for the judiciary because it reflects on their impartiality,” Vratil said.
While the Kansas Code of Judicial Ethics broadly prohibits activities that appear to present a conflict of interest, it also specifically allows judges chosen in partisan elections – as Yost and Goering were – to make contributions to political organizations “at any time.”

The federal court system’s Code of Conduct forbids judges from contributing to specific parties and candidates for office, but doesn’t explicitly say they can’t donate to issue-based organizations.
Read the rest at Live Action.

A Less Perfect Union: How Will Conservatives Restore States’ Rights?

Note: the following article was originally written in early June for another venue, but I’ve reprinted it here because I think its point is still relevant. It is also cross-posted at RedState.

Thanks largely to the Tea Party movement, the United States is thinking harder about individual liberty and states’ rights than she has in years. But despite identifying the problem, conservatives aren’t any closer to enacting a viable long-term solution for taming our federal leviathan.

Several efforts show promise. Many states have challenged the constitutionality of ObamaCare’s individual mandate to purchase health insurance, guaranteeing an eventual ruling from the Supreme Court. Though worth doing, that’s far too risky a basket to put all our eggs in, since it relies on a majority of the justices to rule based on the text of the Constitution rather than their personal ideologies.

In his popular book Men in Black, constitutional scholar and talk radio host Dr. Mark Levin suggests that Congress should restrain such activist judges via its constitutional authority to place limits on the courts’ jurisdiction and to impeach especially odious judges, and advocates constitutional amendments to give judges term limits and give Congress a supermajority veto over Supreme Court decisions. All these proposals are worth exploring in further detail, but even if enacted, there would still be legislative statism to deal with.

In Minnesota’s 2010 gubernatorial race, unsuccessful Republican nominee Tom Emmer backed a state constitutional amendment forbidding federal laws from taking effect without approval by a two-thirds vote in the state legislature. This proposal’s practical failings are obvious—preemptively nullifying all federal laws until the high bar of supermajority support is met would drastically complicate the law’s execution, and there’s no reason to expect state lawmakers’ decisions will be significantly more pro-Constitution that Congress, instead of simply turning on whether a particular majority happens to agree with whoever controls Capitol Hill at any given time.

In his recent book Power Divided is Power Checked, talk radio host Jason Lewis floats a more radical solution—a 28th Amendment, which would expressly affirm each state’s right to secession: “any state whose inhabitants desire through legal means and in accordance with state law to leave this union of the several states shall not be forcibly refrained from doing so.”

Secession is one of the Right’s more heated inter-movement debates, often distinguishing Libertarian from Republican, Northerner from Southerner. This conservative believes secession-at-will is a dangerous doctrine which undermines the rule of law and forgets the nation’s founding principles. Washington, Hamilton, Jefferson, and Jay all considered the national Union an indispensible safeguard of liberty, and “Father of the Constitution” James Madison explicitly denied secession’s legitimacy, explaining that, as a mutually-binding legal compact, the Constitution cannot be broken by any single party.

Moreover, conservatives need to be honest about secession’s full implications—by breaking away from the country, a state wouldn’t merely be rejecting an unjust administration, but also rejecting our very Constitution as no longer worth defending within the system of government it establishes.

So what is the answer? Taking unconstitutional laws to court would certainly be worthwhile. So would Levin’s proposed remedies. But these aren’t magic bullets, and conservatives need to recognize that the problem is more complex than “good states versus evil feds.” Indeed, bad national politicians don’t just fall from the sky; they start out as bad state and local politicians.

Why do so many Americans accept statism? Because the rest of us have failed to be vigilant in our own backyards. For decades, we’ve let progressive presuppositions about government and society gradually infect our politics, education, and culture. To really change course, we must retake our institutions at the local level, particularly with renewed scrutiny of what our schools are—and aren’t—teaching. We can’t expect future generations to recognize betrayals of our founding principles if they don’t even recognize names like Locke or Publius.

We didn’t get here overnight, and we shouldn’t expect a constitutional rebirth overnight either. Every level of American government and society needs to be scrubbed clean. Meaningful, lasting reform is the work of generations, which will demand from each of us more patience, tenacity, and fortitude than ever before.

Allahpundit Doesn’t Get It

And by “it,” I’m referring to Rick Perry’s answer on why he (now) backs a Federal Marriage Amendment.
Perry:
It’s part of the fabric of America to support traditional marriage and that being between one man and one woman. I led the charge back in the mid 2000′s in Texas when we passed a constitutional amendment that defines marriage as being between one man and one woman, passed by 75%, that’s rather overwhelming. But I do respect a state’s right to have a different opinion and take a different tact if you will, California did that. I respect that right, but our founding fathers also said, ‘listen, if you all in the future think things are so important that you need to change the constitution here’s the way you do it’. It takes three quarters of the states deciding that this is important, it goes forward and it becomes an amendment to the United States Constitution. I support that for issues that are so important, I think, to the soul of this country and to the traditional values which our founding fathers, on the issue of traditional marriage I support the federal marriage amendment.
Allah:
Why would you want an amendment in a case where you respect a state’s right to have a different opinion? The touchstone for an amendment, I would think, is when you don’t respect that right because a particular state’s legislative preference would lead to grievous harm. Slavery is the paradigm example; abortion, arguably, is another. If you can look at your opponent’s position and say, “I see your point but I think you’re wrong,” that should take the amendment option off the table and put you back in Tenth Amendment territory. Federalism is “part of the fabric of America” too, after all; as a wise man once said, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Perry’s arguing, I guess, that this experiment is simply too dangerous to conduct — except, actually, he never does say that it’s dangerous. He just says it’s contrary to “traditional values,” a standard that would prohibit “novel social experiments” altogether. And the kicker is that he’s couching his argument in terms of Article V, which is the most “non-traditional” part of the Constitution insofar as it lets future generations change the law as opinions change. Well, opinions are changing. Why use Article V to stop it if you can’t articulate some sort of overweening harm?
That’s fair enough as a critique of Perry’s case for the FMA, but Allah talks as if that’s the only pro-FMA argument he’s familiar with. He’s been manning one of the blogosphere’s top center-right blogs for years, and yet he’s this ignorant about the pro-side?
To summarize, the case for a Federal Marriage Amendment is simple: first, it’s the only thing that will truly insulate marriage from judicial activism, and second, marriage is so vital to the continuance of a free society that the United States must insist on a uniform definition. For further edification, I prescribe the following articles:

Is Abortion Already Illegal?

Because abortion is ultimately a question of basic human liberty and not just good or bad policy, I have never agreed with those conservatives who think “leaving it to the states” is a sufficient solution to the issue (though it would be far preferable to the anti-democratic status quo forced upon us by Roe v. Wade). I instead support a Human Life Amendment to the U.S. Constitution, to protect the right to life nationwide. States should be able to do many things, but treating certain classes of human beings as property is not among them.
However, until the HLA becomes reality, I have also been wary of banning abortion via an act of Congress, for fear of violating the boundaries of Congress’s enumerated powers under Article I, Section 8 of the Constitution. The 14th Amendment, which was enacted to guarantee political rights to newly freed black Americans after the Civil War, seemed to come close to authorizing Congress to ban abortion, but the language about “all persons born” was always a hang-up for me.
But is that really a barrier? After closer contemplation of the 14th Amendment’s language, I’ve concluded the answer is no. Here are the relevant passages in their entirety:
Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There’s no question that this empowers Congress to prevent states from treating their inhabitants unequally or depriving them of life, liberty or property. But do the unborn count among those inhabitants? Let’s go line by line:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
So whatever else you are, you’re not a US citizen until you’re born.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; […]
When taken with the first sentence, this pretty clearly indicates that the unborn aren’t entitled to the full slate of “privileges or immunities” a citizen enjoys. So no guns or voting for fetuses. Sorry.
However, the sentence continues:
[…] nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“Nor” sets up another set of requirements, separate and distinct from the preceding clauses. Here, the amendment discusses protections applicable to “any person,” not “any citizen.” So while some legal protections and entitlements only come with American citizenship, others apply to every human being within our borders, regardless of their legal status.
This makes perfect sense. Legal rights are merely the terms of an agreement made by a particular group of people in their constitution, whereas natural rights are, according to the Declaration of Independence, God-given qualities possessed by every human being, which cannot be justly denied or violated by anyone.
There are obvious reasons why countries don’t want to have to give foreign nationals exactly the same legal protections and benefits as their citizens—for instance, we shouldn’t have to go through a full-blown jury trial every time we want to deport a violent illegal immigrant. But at the same time, we would never want to set the standard that people can do whatever they want to someone just because he’s not an American.
This certainly seems to fit with the original intent behind the measure—as President Ronald Reagan wrote in his famous essay, “Abortion and the Conscience of the Nation”: 
When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”
If the unborn are people—and from both scientific and philosophical perspectives, they clearly are—then the Constitution already requires that their right to life be protected, even without a new amendment explicitly saying so. Any state that prohibits the murder of fully-grown humans while allowing the murder of those in the womb is unconstitutionally discriminating against the latter.
All right-of-center observers agree that the Constitution doesn’t require the right to abortion, but the understanding I’ve just proposed—that the Constitution actually forbids it—is much rarer. Even Justice Antonin Scalia believes the Constitution is silent on the question. Further, conservatives tend to dislike enacting their policy goals through unelected courts on principle. For these reasons, pro-lifers should continue to support the Human Life Amendment anyway, so that when abortion’s long-overdue end finally does come, nobody can plausibly question its democratic legitimacy. But if we manage to save lives by convincing even a few courts that the right to life is an equal-protection issue, so much the better.