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15
Dec 2011

Bill of Rights Day

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Today is the 220th anniversary of the date the Bill of Rights became effective. Take a few moments to read the document at the National Archives here.

Tim Lynch at the Cato Institute has a review of how healthy our rights are today, and it is quite sobering:

The First Amendment says that “Congress shall make no law… abridging the freedom of speech.” Government officials, however, have insisted that they can gag recipients of “national security letters” and censor broadcast ads in the name of campaign finance reform.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, make it difficult to keep a gun in the home and make it a crime for a citizen to carry a gun for self-protection.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners.  This safeguard is one of the few that is in fine shape — so we can pause herefor a laugh.

The Fourth Amendment says the people have the right to be secure against unreasonable searches and seizures. Government officials, however, insist that they can conduct commando-style raids on our homes and treat airline travelers like prison inmates by conducting virtual strip searches.

The Fifth Amendment says that private property shall not be taken “for public use without just compensation.” Government officials, however, insist that they can use eminent domain to take away our property and give it to other private parties who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused is guaranteed a right to trial by jury. Government officials, however, insist that they can punish people who want to have a trial—“throwing the book” at those who refuse to plead guilty—which explains why 95 percent of the criminal cases never go to trial.

The Seventh Amendment guarantees the right to a jury trial in civil cases where the controversy “shall exceed twenty dollars.” Government officials, however, insist that they can impose draconian fines on people without jury trials.

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that a life sentence for a nonviolent drug offense is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers they possess, and have extended federal control over health care, crime, education, and other matters the Constitution reserves to the states and the people.

Cato has prepared a related quick video that is similarly sobering (click here to view in YouTube):

Each year in Arizona, a group of folks celebrate Bill of Rights Day together and Patrick Henry routinely appears to speak. In 2010, Patrick Henry’s presentation was captured on video, so here is that entertaining and informative piece, the speech begins at about 5:30 minutes into the video (click here to view in YouTube).

Here is part 2 of the Henry speech (click here to view in YouTube):

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Categories: Constitutional Rights
12
Dec 2011

Publius Daily Digest

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National

Event Alert: this one is online. Tomorrow, December 13, at 1 p.m. PST the Reagan Foundation is hosting a Lecture with Peter Hannaford to discuss his latest book, Reagan’s Roots. Go here to view the webcast live.

Atlas Shrugged Alert: rumor has it that some Red Box locations are now renting copies of Atlas Shrugged Part 1. Check here to see if you can reserve a copy at a location near you.

Big news from SCOTUS this morning as the Court announced it will review Arizona’s controversial immigration reform law, SB1070. We’ve previously covered that law here, here, here, here, here, here, and here. SCOTUSblog hosted an online symposium in July on SB1070 with input from numerous scholars. From SCOTUSblog:

Adding further to the historic rank of the Supreme Court’s current Term, the Justices on Monday took on the searing constitutional — and political — controversy over state power to strictly limit the way undocumented immigrants live their lives in the U.S.   Along with the politics-saturated but deeply consequential constitutional disputes over the new federal health care law and the role of federal courts in drawing up new election districts to protect minority voters’ rights, the Term that will run through late June is assured of being one of the Court’s most significant single years ever.  The federal government is involved in all three disputes, and its main adversary in each is the same: prominent Washington lawyer and former U.S. Solicitor General Paul D. Clement, who is also battling the government in lower courts over same-sex marriage.  The marriage issue, though, has only the slimmest of chances of getting to the Court this Term in any form.

* * *

The Arizona case puts before eight of the Justices — former U.S. Solicitor General and now Justice Elena Kagan will not take part — that state’s highly controversial bill, known popularly as “S.B. 1070.”  That measure set a pattern among a number of states that have been growing increasingly impatient with what they consider to be the federal government’s lax enforcement of immigration controls, and the resulting harm that they believe illegal immigrants are doing to the quality of life for their citizens and legal residents.  The Arizona measure, and one in Alabama that goes even further, were passed by state legislatures with the specific intent of making life so difficult for undocumented aliens that they would choose to leave the state.  Other states are also passing similar measures.

Arizona’s governor, Janice Brewer, in taking the fate of S.B. 1070 on to the Supreme Court, is portraying the case as a major test of the sovereignty of the states to make their own social policies under traditional “police power” principles.  The federal government, which tried unsuccessfully to persuade the Court not to get involved in the case at this point, is treating the case as a test of whether states may adopt their own immigration policies that frustrate specific goals of federal policy.

With Justice Kagan not taking part, presumably because she had something to do with the issue in her former role in the Obama Administration Justice Department, there is the possibility that the eight participating Justices will wind up split 4-4 in the case.   That would have the effect of simply upholding a Ninth Circuit Court decision, but without opinion and without setting a nationwide precedent.  The practical effect of that would be that Arizona could not enforce four key provisions of S.B. 1070, blocked by both the Ninth Circuit and, earlier, by a federal District judge in Arizona.

Big news indeed. Speaking of the administration, last week we noted Eric Holder’s testimony on the Fast and Furious operation debacle, and WSJ’s Law Blog has a good roundup of coverage from that testimony here.

Also, Steve Chapman notes that Obama is no friend of religious freedom in a thought-provoking column:

But look far enough in this pile of chaff and you find some wheat. On two major issues cited by Perry, Obama has broken with precedent to curtail religious freedom in a way that should alarm staunch secularists (like myself) as well as the devout.

The first instance arose after passage of his health care overhaul, when the Department of Health and Human Services ordered that all insurance plans cover contraceptives and sterilization for women, with no co-payment. The mandate means many Americans would have to be complicit in something their faith forbids.

* * *

Even more extreme is its position on a dispute involving an evangelical Lutheran church and school in Michigan. The school had dismissed a teacher who taught both religious and non-religious classes, and she went to court alleging illegal discrimination.

Federal courts have generally barred such lawsuits, leery of getting tangled up in church doctrine and discipline. But an appeals court ruled in favor of the teacher, and Obama’s Justice Department took her side.

Not only that, it said churches and their schools should be treated no differently from other employers. Taken to its logical conclusion, that would mean the Catholic Church could be forced to admit women to the priesthood.

When the case was argued before the Supreme Court, conservative Justice Antonin Scalia marveled at the administration’s claim: “There, black on white in the text of the Constitution, are special protections for religion. And you say it makes no difference?” Exclaimed liberal Justice Elena Kagan, whom Obama appointed, “I too find that amazing.”

more

From the 2012 primary updates:

WSJ Law blog describes how Rick Perry stumbles, again: “[W]e bring you Perry’s latest, a couple of missteps made during a sit-down with the editorial board of the Des Moines Register. In one, he blanked on the name of Supreme Court Justice Sonia Sotomayor. In the other, he referred to the Supreme Court as consisting of ‘eight unelected and frankly unaccountable judges.’”

Reason presents a Ron Paul roundup with some interesting tidbits and videos.

George Will explains how a third-party Ron Paul run leads to a second term for Obama:

When recently asked if he might mount an independent candidacy, he said: “I’m not thinking about it because, look, I’m not doing badly right now. … So we concentrate only on one thing: Keep moving up in the polls, and see how things come out in a month or two.”

He is in the top tier in Iowa, and would alienate Republican voters if he indicated an interest in bolting the party next autumn. Nationally, his ceiling is low, but his floor is solid: His supporters are inclined to accept no substitutes because no other candidate espouses anything like his high octane blend of libertarianism and isolationism.

Furthermore, he is now nationally known (he campaigned for the 2008 Republican nomination, and was the Libertarian Party’s 1988 presidential candidate), has a large base of small donors, and his intense supporters probably could get his name on most states’ ballots. He is not seeking re-election to his House seat, so what has he got to lose?

Well, his candidacy might guarantee Barack Obama’s re-election, and this might hurt the career of his son Rand, the freshman senator from Kentucky. Other than that, however, Ron Paul may think what his ideology implies – that Obama is only marginally more mistaken than Paul’s Republican rivals, who do not wake up each day angry about the 1913 Federal Reserve Act.

Video of the Day

Today’s video comes from PA Congressman Mike Kelly and his recent House Floor rant, definitely worth five minutes of your time (click here to view in YouTube):

New Mexico

Check out Steve Terrell’s column in Saturday’s online Santa Fe New Mexican, in which he asks whether the Tea Party activists and the Occupy activists have received unequal treatment by the Santa Fe government:

Santa Fe Republicans indisputably are in the minority. This often leads to grumbling about their treatment by the Democratic majority. Like all political beefs, from any side, sometimes the concerns are overblown. Sometimes not.

Last week a couple of local GOP activists raised a valid question about basic fairness. Jim and Sheryl Bohlander emailed that they don’t think it’s fair that they had to pay hundreds of dollars to use the Santa Fe Plaza for tea-party events while members of the Occupy Santa Fe movement camp out at the city’s Railyard Park for free.

“As two of the principal organizers of the 2009 and 2010 tea-party rallies on the Plaza, we can confirm that we had to secure a permit to use the Plaza, $400 for each event, plus we had to secure at liability insurance policy for both events, well over $300 each time,” the Bohlanders said in their email. “The permit fee for 2011 was $455. Additionally, we had to state specifically the time frame of the events.”

I realize some readers will be thinking, “What the heck? They’re Republicans. They can afford it.”

But setting political prejudices aside — if that’s ever possible — one can ask if it’s fair to make one group of citizens pay to use a city park for a political gathering while another group gets to use a park for free?

Read the whole column here and let us know what you think in the comments.

While we wait for the full results of the grand jury investigations into former Gov. Richardson’s conduct, the state’s most prominent current embarrassment is busy amassing additional assets, this time in Cape Cod, Mass.:

The couple secured a $675,000 mortgage from the Cape Cod Five Cents Savings Bank and purchased the 2,278-square-foot house from Gerald and Stephanie Coughlan of Wellesley. The Coughlans paid $1.6 million for the property on Nickerson Neck in 2004.

Most of the property’s value — $1.5 million — is in the 36,200-square-foot pond-front lot, according to Chatham assessing records. The assessed value of the three-bedroom house with 4.5 bathrooms was $297,900.

“Gov. and Mrs. Richardson will use this home as a vacation home,” Richardson spokesman Caitlin Wakefield emailed Friday. “Their primary residence will continue to be Santa Fe, N.M. Mrs. Richardson has longstanding ties in the Cape Cod area.”

More here. Continuing the New Mexicans in the national news theme, Murphygate has now made its way into the Los Angeles Times:

It wasn’t a good day for New Mexico’s judiciary when a district judge in Las Cruces, the state’s second-largest city, was indicted last spring on bribery charges for allegedly soliciting campaign contributions in return for political favors.

Then things went from bad to worse. The special prosecutor handling the case demanded that the chief justice of the state Supreme Court recuse himself for allegedly having made prejudicial comments and rulings.

And then came the release of a secretly recorded audiotape in which the indicted judge, Michael Murphy, could be heard casually spouting barnyard profanities, racial epithets and homosexual slurs.

The scandal has reverberated statewide, with some seeing it as evidence of rampant judicial corruption. Murphy’s allies portray it as little more than an indiscretion by someone caught talking out of school, and view the criminal charges as a broad interpretation of the bribery statute.

Full article here.

 

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Categories: 2012 Election, Constitutional Rights, Economy, Gary Johnson, Health Care, NM Politics
01
Dec 2011

Publius Daily Digest

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National

John Stossel has another great column out noting ways the government is Blocking the Paths Out of Poverty:

Have you noticed how often government takes sides against the little guy?

Street vending has been a path out of poverty for Americans. And like other such paths (say, driving a taxi), this one is increasingly difficult to navigate. Why? Because entrenched interests don’t like competition. So they lobby their powerful friends to erect high hurdles to upstarts. It’s an old story.

Now, growing local governments are crushing street vendors.

The city of Atlanta, for example, has turned all street vending over to a monopoly contractor. In feudalist fashion, all existing vendors were told they must work for the monopoly or not vend at all.

For more on the issue, check out the Institute for Justice’s lawsuit pending against Atlanta.

Speaking of the economy, Reason.tv has an interesting collection of videos related to the Occupy Wall Street movement, most interesting are the Peter Schiff videos. Check them all out here.

The 2012 GOP race continues to fascinate, check out this Talking Points Memo graphic of how things have progressed in Iowa (visit TPM for additional graphics from New Hampshire and the national race):

H/T Peter Suderman. According to Business Insider, as we get closer to the election there are 50 pundits–and only these 50–that we should pay attention to between now and next November:

Back in the days of the cigar smoke-filled backroom journalists like Walter Lippmann told you what to think while you drank your morning coffee. And then Edward R. Murrow told you what to think while you ate a T.V. dinner.

Those days are no longer.

These days the backroom has moved to Twitter and the front page is the viral video.

Nowadays things are a lot messier and a whole lot more fun. And for better or worse very few of the old standards and definitions apply.

In that spirit we’ve put together a list of the 50 essential pundits in no particular order you should be reading between now and election day.  These are the true influencers.

Check out the full list here, it’s an interesting one. In terms of the candidates themselves, it seems Newt Gingrich is the most on the move toward positive gains, as noted in yesterday’s Political Diary:

At a campaign event in Naples, Fla., last week, Newt Gingrich announced, “I’m not the comeback kid. I’m the comeback grandparent.” And the latest polling seems to confirm the former House speaker’s claim.

The latest average of national polls from Real Clear Politics gives Mr. Gingrich a slight 2.5-point advantage over former Massachusetts Gov. Mitt Romney. But that advantage is extended in several early primary states. An Insider Advantage/Majority Opinion Research survey released Tuesday found that 28% of registered GOP voters in Iowa support Mr. Gingrich — a 15-point advantage over number two Mr. Romney. The same poll found that Mr. Gingrich garners 38% of the vote among Republicans in South Carolina — a staggering 23-point lead over Mr. Romney.

Mr. Gingrich is also gaining ground in New Hampshire, where the most recent Rasmussen poll shows him just 10 points behind Mr. Romney. That’s by far the closest a candidate has come to the former governor in any Granite State Rasmussen survey. It was also the first poll taken after Mr. Gingrich picked up a key endorsement from the New Hampshire Union Leader newspaper. The same endorsement gave John McCain’s struggling campaign a boost in the 2008 primary.

“I don’t claim to be the perfect candidate. I just claim to be a lot more conservative than Mitt Romney and a lot more electable than anybody else,” Mr. Gingrich told WSC-AM radio in South Carolina Monday. Mr. Romney fired back in an interview with Fox News’ Bret Baier, saying Mr. Gingrich was “a lifelong politician.” He also contrasted their records. “He [Gingrich] spent his last 30 or 40 years in Washington. I spent my career in the private sector. I think that’s what the country needs right now.”

It will be interesting to see if today’s featured video has any impact on Gingrich’s surge. The Ron Paul campaign uploaded this to YouTube yesterday and more than 170,000 people have already viewed it, many sharing on social media sites like Facebook (click here to view in YouTube):

New Mexico

The biggest local news is, of course, the latest in the grand jury probes of former Gov. Bill Richardson’s conduct:

A federal grand jury is investigating an accusation that former Gov. Bill Richardson had supporters pay off a woman during his 2008 presidential campaign to keep quiet about their alleged extramarital affair, the Wall Street Journal is reporting.

Richardson’s political allies allegedly “gave $250,000 to placate a woman who was considering suing the governor in 2007, exposing their alleged extramarital affair, according to people familiar with the federal probe,” the Journal is reporting.

The Journal quoted the sources as saying the woman, who isn’t named in the article, “was a state employee at the time that she allegedly became romantically involved with Mr. Richardson around 2004.”

Richardson didn’t return calls and e-mails from the Journal seeking comment, and his office “declined to provide the names of his lawyers,” the article states.

More here.

Several good posts up at Errors of Enchantment, don’t forget to visit for more local info and commentary.

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Categories: 2012 Election, Constitutional Rights, NM Politics Tags: ,
16
Nov 2011

Heinrich and Udall: No fans of the First Amendment

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A little over a week ago, Galt reported that the esteemed, ahem, Senator Udall has jumped on the anti-free speech bandwagon of Democrats seeking to impose the government’s will on your political speech. Unfortunately, the cagey and politically driven Udall now has fellow New Mexican Martin Heinrich following suit:

Rep. Martin Heinrich (D-New Mexico) joined his colleague in the US Senate, Tom Udall, by offering up legislation aimed at repealing the US Supreme Court decision in the Citizens United case, calling for a Constitutional amendment and would allow Congress to regulate the campaign finance system.

On Monday (Nov. 14), Heinrich joined four other Democratic members of the US House of Representatives by introducing a companion amendment to the one Udall offered in the Senate along with Sen.Michael Bennet (D-Colorado).

More from New Mexico Watchdog.org here. If you’d like to know more about why Udall, Heinrich, and company are flat wrong on this issue and actually pose a danger to the bedrock principles of this nation through their continued nonsense, see the following pieces:

  1. Citizens United and the Battle for Free Speech in America by Steve Simpson
  2. Democracy Will Survive Citizens United by Roger Pilon
  3. 3 Reasons Not to Sweat Citizens United by Reason.tv
  4. Reason’s coverage of the decision over the last couple years.
  5. Free Speech Is Not a “Problem of Democracy” by Paul Sherman

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Categories: Campaign Finance, Constitutional Rights Tags: ,
14
Nov 2011

Publius Daily Digest

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National

Big news of the day: ObamaCare is now officially headed to the U.S. Supreme Court. From WSJ Law Blog:

The U.S. Supreme Court on Monday did what it had long been expected to do, and agreed to hear arguably the most high-profile challenge to the law. Click here for Brent Kendall’s article in the WSJ; here for coverage from Scotusblog.

In a short written order, the high court agreed to hear a challenge that originated in Florida, brought by a group of Republican governors and attorneys general from 26 states, the National Federation of Independent Business and two individual plaintiffs.

The case raises several issues, but chief among them is this: Did Congress exceed its constitutional powers when it required most individuals to carry health insurance or pay a penalty?

The court is expected to hear oral arguments in March, with a decision expected by the end of June. That timeline means the court will rule on President Barack Obama’s signature legislative achievement during the thick of the 2012 presidential campaign.

The SCOTUSBlog link above is also worth checking out by those interested in more details of the anticipated argument schedule given the unprecedented (in modern times) setting for 5 1/2 hours of argument. Tim Cavanaugh has an interesting related post up looking at Obama’s 2008 stance against a health care mandate:

Here’s something President Obama might have forgotten: In 2008, when then-Sen. Obama was fighting then-Sen. Hillary Clinton for the Democratic presidential nomination, he got the inside track by opposing a federal mandate requiring you and every other American to purchase health insurance.

The individual mandate, which is so totalitarian and unconstitutional that even the thoroughly unlibertarian voters of Ohio rejected it last week, went on to become the unpopular centerpiece of Obama’s Patient Protection and Affordable Care Act, the putative reform of the health care system widely known as “Obamacare.”

Definitely check out the full piece.

National Public Radio has an interesting three-part series on influential individual that started today with a look at Ayn Rand, as noted by David Boaz of Cato Institute:

They looked at Ayn Rand this morning, and there are reports that they will cover F. A. Hayek tomorrow and John Maynard Keynes Wednesday. The segment quotes Rand from a televised interview with Mike Wallace (which you can view at the link) and then comments on the prevalence of her ideas today:

“Both parties today are for socialism, in effect — for controls. And there is no party, there are no voices, to offer an actual pro-capitalist, laissez-faire, economic freedom and individualism,” she said. “That is what this country needs today.”

If Rand were alive today, she might be pleased to see that, more and more, Americans do have that choice. And her ideas are alive and well-represented in the U.S. Capitol.

If by “well-represented,” you mean “often heard in protest as Congress passes Wall Street bailouts, corporate takeovers, health care takeovers, and trillion-dollar spending bills,” then yes.

NPR’s commenters weren’t very happy to hear Ayn Rand discussed. I especially appreciated this one:

The “objectivity” of ruthless plunderers from a displaced Russian bourgoise who refused to acknowledge the punishment of her class was brought on by its crimes against the people. Objective thinking people accept responsibility for their actions and the consequences that follow.

Marxism may be dead in Russia, but not in the NPR listener community! No doubt this commenter is knitting the names of American bourgeoisie who will one day be sent to gulags.

For anyone interested in Nixon’s post-Presidency 1975 grand jury testimony about Watergate, good news:

A heads up to our legal history buffs: The government’s Nixon Presidential Library just  published online – as in five minutes ago – his 1975 grand jury testimony about Watergate.

“This is Nixon unplugged,” historian Stanley Kutler, a principal figure in the lawsuit that pried open the records,told the Associated Press.

Still, he said, “I have no illusions. Richard Nixon knew how to dodge questions with the best of them. I am sure that he danced, skipped, around a number of things.”

The interview took place near Nixon’s California home over two days. It was the first time an ex-president had testified before a grand jury.

A very interesting infographic is now available online, allowing us to “visualize[] the words used in the 2011-2012 Republican Primary debates.” Here’s one example screen shot:

Which brings us to the video of the day. While he’s not a presidential candidate, Senator Marco Rubio is one of those frequently mentioned as a potential Vice President to bolster the GOP ticket. He spoke last week at the annual Federalist Society National Lawyers Convention (click here to view in YouTube):

New Mexico

Interesting column last week by Michael Swickard calling for an end to Daylight Savings Time:

It is time we change the way time is changed twice a year in most of the country. Specifically, it is time to throw out Daylight Savings Time (DST) and throw it out for good. I wonder if we can get someone to sponsor a congressional bill to make this change. Most Americans would get along fine with year-round regular time.

While government does not give up power over the people willingly, we can make a case that we should change what government is doing now. The government nannies and minders say they have our best interests in mind with DST. They say that during the summer months there is more time in the evening to recreate with DST, so we should use that time rather than lose it. Still, when DST starts it is mid March, and it is November when the time changes back. There is a lot of time that is not summer.

Read the entire piece here. Also interesting is Heath Haussamen’s column calling for lawmakers to receive paychecks:

I authored a commentary in September arguing that we need to pay our state legislators; newspaper articles published this weekend may indicate that such an idea is gaining momentum.

Steven Robert Allen, executive director of Common Cause New Mexico, and State Rep. Antonio “Moe” Maestas, D-Albuquerque, were quoted as saying they support paying lawmakers in an article published by the Las Cruces Sun-News.

In addition, the Albuquerque Journal published an editorial saying voters should “be given the opportunity to decide if they want a professional, paid Legislature.”

In my September commentary, I argued that our unpaid legislators “can’t keep up with the governor or the pace of life in the 21st Century no matter how hard they work.”

Suggesting that our lawmakers are currently “unpaid” is pretty disengenuous, but it is true that they do not actually receive a salary (just massive per diem allotments that are often abused and a pension system that should not be ignored).

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Categories: 2012 Election, Constitutional Rights, Economy, Health Care, NM Politics
09
Nov 2011

Publius Daily Digest

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National

A lot to discuss today, so we’ll try to hit the highlights and hopefully whet your appetites for tomorrow’s lunch meeting. First up, the latest ObamaCare decision. The WSJ reviews Judge Silberman’s Strange Opinion:

In the D.C. Circuit Court of Appeals’s decision upholding the Obama health-care plan yesterday, Judge Laurence Silberman writes that it is merely a “sparing” opinion, since the Supreme Court will almost certainly have the final say on the law’s constitutionality. And perhaps that’s for the best, given that Judge Silberman’s reasoning for the 2-1 majority is, well, peculiar for so distinguished a jurist.

At issue in Susan Seven-Sky as everywhere is the individual mandate, the requirement that everyone purchase health insurance or else pay a penalty. The Obama Administration argues that such federal coercion is justified by the Commerce Clause. Yet expanding the longstanding authority to regulate interstate commerce to compel individuals to participate in commerce would vitiate the government of limited and enumerated powers that the framers envisioned.

Judge Silberman and concurring Judge Harry Edwards concede that such powers are without precedent. During oral arguments, he writes, the Justice Department could not cite “any doctrinal limiting principles” to this reading of the Commence Clause, and the Obama lawyers even admitted that they could extend beyond fines to criminal prosecution and imprisonment for refusing to buy a private product.

As Judge Brett Kavanaugh explains in his dissent, the next logical stops for this theory are “mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance” too. Given modern political appetites, he may be right.

But the majority opinion then endorses this brave new world on the basis of what Judge Silberman calls “the closest Supreme Court precedent to our case,” Wickard v. Filburn. That’s the 1942 ruling in which the High Court held that Congress could limit wheat growing for personal consumption because in the aggregate it could affect interstate markets, presumably like health-insurance decisions.

Randy Barnett has a good post at Volokh Conspiracy looking toward the future of ObamaCare litigation:

Well, we now have the last Circuit Court of Appeals decision to digest before hearing later this week or next whether the Supreme Court will take up the challenge and what question will be presented to the Court.  Assuming it does, there will then be merits briefs and oral argument.   But first, some brief and and very preliminary reactions to today’s decision.

(1) It is another divided decision, which is now the pattern.  Whether upholding or striking down the individual mandate, the Court of Appeals judges are all over the map.  This is not indicative of a case dictated by previous decisions that has a predetermined outcome.

(2)  The decision tracked oral argument as I described it here.  Judge Kavanaugh clearly telegraphed his enchantment with the Antitax Injunction Act.  Judge Edwards clearly telegraphed his view that little needed to be said to find that the ACA is constitutional (as he said very little art argument or in his concurrence).  And, although I hoped against hope that Judge Silberman was not telegraphing his position when he strongly asserted that the “logic” of Wickard v. Filburn authorized economic mandates, sure enough he stuck to that position.  (I have already blogged here about why I think Judge Silberman is misreading the actual opinion in Wickard.)

(3) With respect, I beg to differ with my co-blogger Stuart’s post below.  Should the Affordable Care be upheld, Judge Silberman’s opinion in no way will provide a template for a majority opinion by any justice, but especially not one by Justice Scalia.  Like Judge Sutton’s concurrence in the Sixth Circuit, this opinion has all the hallmarks of a decision its author knows full well is  not the last word in the case.  Like Judge Sutton, Judge Silberman is punting to the Supreme Court.  I am not claiming that he does not believe in the correctness of his decision.  I believe that he believes.  I am merely claiming that he would never be content with this being the final word on the subject of the scope of Congress’s power.  And he knows it won’t be.

Yesterday was also election day in some places, with some interesting results. Thankfully, as Ilya Somin explains, Measure 31 dealing with eminent domain passed in Mississippi. Guy Benson at Townhall has a good roundup of all the election night results. Here are some excerpts, but I recommend checking out the whole thing:

Ohio: As expected — and lamentably — Gov. John Kasich’s landmark collective bargaining reform law has gone down in flames, thanks to a well-funded and relentless program of demagoguery by Buckeye State Democrats and public sector unions.  The margin isn’t close; as of this writing, it stands at 61-39 to overturn the law.  This is a satisfying, but unsustainable, victory for the Left.  They may have beaten back an evil conservative law, but a fiscal reckoning still awaits.  The math doesn’t go away, even if the law does.  What liberals won’t mention is that there was another significant item on the ballot today: A referendum on Obamacare’s tent-pole individual mandate.  Ohioans’ rebuke of Obamacare is shaping up to be even more overwhelming than the Issue 2 tally.  Right now the margin in favor of the anti-Obamacare measure is 66-34.  This is the second major swing-state repudiation of Obamacare since it was enacted last March.

* * *

Virginia: What a bloodbath in the House of Delegates.  Republicans will emerge from tonight with at least a 2/3 majority, having picked up a minimum of 6 seats, if not 7 or 8.  To add insult to injury, they also knocked off the Democratic Minority Leader in District 9.  The Senate is razor thin, and may come down to a recount.  Republicans held both redistricted seats (in 13 and 22), and are narrowly leading a pair of Democratic incumbents in Districts 17 and 20.  If both of those microscopic margins — we’re talking hundreds of votes — hold up, the upper chamber will be split evenly, which would be a de facto Republican majority.  A very solid night for Bob McDonnell’s muscular Republican Machine in Virginia.  This is going to be a tough state for President Obama to win again.

* * *

Arizona: Powerful State Senate leader Russell Pearce, who authored the controversial SB-1070 immigration bill, was ousted in a recall election.  He had also been dogged by a number of ethics complaints.  Pearce was replaced by a fellow Republican.

Overall Verdict: An uneven night for conservatives, across the board.  Clearly not a continuation of 2010′s wave, but not an especially good evening for Democrats, either.  Ohio’s Issue Two result is by far the biggest disappointment (leavened slightly by the Issue Three romp), and Virginia is the brightest spot.  Onward!

On the GOP 2012 race, some interesting developments. Of note, it seems more and more folks are vocally opposing Romney as the nominee.  Some highlights of a great piece by Ali Akbar, John Hawkins, and Matt Mackowiak:

After three years of European-style, social democratic, big government efforts here at home, the solutions that our nation requires are conservative in nature. Accordingly, our nominee must also be a committed fiscal conservative – that we can trust.

Say what you will about Mitt Romney, but he is not a consistent conservative.

As RedState’s Erick Erickson has pointed out, it’s “not that conservatives do not like Mitt Romney. It’s that they do not trust him.” And this is for good reason.

Consider:

• Mitt Romney pledged in 1994 to be stronger on gay rights than his opponent for U.S. Senate, Ted Kennedy. He now supports a Constitutional amendment protecting marriage as between one man and one woman.

• Mitt Romney was pro-abortion from 1957-2003. Running statewide twice in Massachusetts, opposing the pro life position had significant political benefits.

• Mitt Romney supported both the Assault Weapons Ban and the Brady Bill in 1994. In 2007, after claiming he enjoyed hunting and joining the National Rifle Association, he claimed he owned a gun, but did not. He is now a strong supporter of 2nd Amendment Rights.

• Mitt Romney in 2006 said illegal immigrants should have a path to citizenship, supported the McCain-Kennedy plan, which he denied was amnesty, and now attacks other candidates for their records on immigration.

• Mitt Romney refused to support the 2004 Bush tax cuts, but it 2007 he claimed that he had always supported them.

• Mitt Romney said on NBC’s Meet the Press that his Massachusetts health care plan was a model for the nation, but now says it is not right for the other states.

• Mitt Romney says he will issue an executive order on his first day issuing a waiver to all 50 states of ObamaCare. If he believes Obamacare must be repealed, why does he not believe Romneycare should?

• Mitt Romney resisted every attempt by opponent Sen. Ted Kennedy connecting him to Ronald Reagan in the 1994 campaign for U.S. Senate and has insisted that he was an independent during the Reagan years. In 2005, Romney said that Reagan was his political hero.

Read the full piece here, and check out Jacob Sullum’s column pointing out that Romney’s proposed spending “cuts” would actually expand the federal budget:

Presenting his fiscal plan in USA Today last week, Mitt Romney said he wants to “eliminate every government program that is not absolutely essential.” That sounds good until you realize that Romney’s goal of cutting $500 billion fromprojected federal outlays in 2016 would, at best, leave the budget about 8 percent higher than it is now and only 11 percent lower than it would be without any attempt to restrain spending.

The implication: Mitt Romney thinks 89 percent of what the federal government does is “absolutely essential.” And that’s what he says when he is trying to appeal to the fiscally conservative Republicans whose votes he will need to win his party’s presidential nomination. Who knows what he really thinks, assuming he has any firm convictions at all on this crucial question.

Dorothy Rabinowitz, on the other hand, touts Gingrich’s chances in today’s WSJ:

Newt Gingrich’s rise in the polls—from near zero to the third slot in several polls—should come as no surprise to people who have been watching the Republican debates, now drawing television viewers as never before. The former speaker has stood out at these forums, the debater whose audiences seem to hang on his words and on a flow of thought rich in substance, a world apart from the usual that the political season brings.

* * *

No one else’s remarks would ignite the huge response his talk did.

He began with the declaration that Americans were confronting the most important election choice since 1860. America would have the chance in 2012, Mr. Gingrich said, to repudiate decisively decades of leftward drift in our universities and colleges, our newsrooms, our judicial system and bureaucracies.

He would go on to detail the key policies he would put in place if elected, something other Republican candidates have done regularly to little effect. The Gingrich list was interrupted by thunderous applause at every turn. The difference was, as always, in the details—in the informed, scathing descriptions of the Obama policies to be dispatched and replaced, the convincing tone that suggested such a transformation was likely—even imminent.

Mike Riggs has a good look at the Occupy Movement’s Penchant for Inflicting Collateral Damage:

Last night, San Diego residents held a fundraiser for two street vendors whose carts were burglarized and vandalized, with blood and piss, by Occupy protesters. The protesters were angry that the vendors would not “donate” their wares to the movement. CBS Los Angeles reports that the vendors, one who sold hot dogs, and one who sold coffee, also received death threats for refusing to give away their goods.

At the Port of Oakland earlier this month, workers and observers could only enter—and more horrifying, leave—the port after the mob “voted” their permission. When one trucker tried to break through the blockade, his vehicle was attacked. The protester who did the attacking had this to say: “These people tried to kill us. I can’t believe they are being that aggressive over a paycheck, over your own people fighting for you.” (Savor the irony.) While people waited into the early morning hours for permission to see their families and do their jobs, Oakland Mayor Jean Quan, who gave the OK for Oakland Police to fire tear gas and rubber bullets into a crowd of Occupy Protesters, sat safely in a government building.

* * *

Show me an Occupy demand that can be met by destroying the livelihoods of people who are on the cusp of poverty (due to government regulations on food vendors), smashing the windows of a Men’s Warehouse and a coffee shop, trashing the bathroom of a Manhattan restaurant, pushing an old lady down a flight of D.C. stairs after imprisoning her and her fellow conservative conference attendees using a human chain, or “clobber[ing] a store manager with a credit-card reader.” You can’t. That’s because the government holds the strings here, not the people who Occupy is hurting. The government gives away corporate welfare, controls cops, sends perverse signals to the market, drops bombs, exposes itself to regulatory capture, deals out special favors to big interests, operates drones, prohibits drugs, and destroys immigrant families through deportation. Hot dog vendors sell hot dogs, restaurants sell food, store managers manage stores, truck drivers drive trucks.

Today’s video is a bit of a retrospective, check out Milton Friedman and Phil Donahue in 1979 discussing greed (click here to view in YouTube):

New Mexico

Heath Haussamen looks at last night’s elections in Las Cruces, concluding residents are happy with the city’s direction:

It wasn’t even close. In a resounding manner, voters in Las Cruces endorsed the work of incumbents who were up for re-election on Tuesday.

This year’s contest was a test of what voters think about the work of progressive-backed candidates whotook over city government between 2007 and 2009. Mayor Ken Miyagishima said the large margins by which he and other incumbents won are easy to interpret.

You can check out his election night liveblog archive here. Readers: what say you? Is Haussamen’s interpretation of election results accurate?

 

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Categories: 2012 Election, Constitutional Rights, Health Care, NM Politics
07
Nov 2011

Publius Daily Digest

By

National

For those wondering just how partisan a little group called the American Bar Association is, you need look no further than the ABA’s latest “lawyer of the year” award recipient:

Lawyers at the American Bar Association have given their “lawyer of the year” award to the top lawyer at the National Labor Relations Board.

The board is led by President Barack Obama’s appointees, and has tried to derail Boeing’s plan to open a new aircraft factory in South Carolina. It has also changed several rules to help unions draft workers.

These controversial decisions have been adopted amid strong opposition from companies, investors and GOP legislators.

The bar association’s long-standing skew toward the Democrats is so pronounced that it prompted libertarian and conservative lawyers to create their own group, the Federalist Society.

The bar association’s award was granted to Lafe Solomon, the board’s acting general counsel.

More from the Daily Caller here.

In other bad news, local disgrace, um, excuse me, local Senator Tom Udall has now proposed that we amend the U.S. Constitution to make it clear political speech is not protected speech:

In the history of the United States, more than 11,000 amendments to the Constitution have been proposed, and only 27 have passed.

With those odds in mind, we bring you this story from HuffPo on a proposed constitutional amendment by Sen. Tom Udall (D., N.M.) that would blow up the Supreme Court’s 5-to-4 ruling in Citizens United.

The ruling last year unleashed a flood of campaign contributions from corporations and super PACs, which can spend as much money as they want and do so nearly anonymously.

The proposal put forth by Udall would add language to the Constitution that says Congress and the states can regulate campaign contributions and expenditures. Click here for more on the proposal in The New Mexican.

The proposed amendment would also reverse the 1976 decision Buckley v Valeo, which held that spending money is a form of speech in elections.

The WSJ Law Blog’s full post is here. For more on the Senator Who Opposes Free Speech, see d’Anconia’s most recent post here. For some perspective on the Citizens United case, review Steve Simpson’s 2010 column here.

A couple of Occupy Wall Street columns worth reading. First, from Steve Chapman, a look at What Occupy Wall Street Gets Wrong:

If you want to know what motivates the people involved in Occupy Wall Street, you can get a good idea from Think Progress, a left-leaning website. It offers a map of the continental United States labeled, “If U.S. land were divided like U.S. wealth.”

In this representation, 1 percent of the people hold title to most of the West and Great Plains area. Nine percent have a swath about the same size stretching from Minnesota south to Oklahoma and east to Maine. The other 90 percent of the population get only a narrow slice along the southern rim.

It’s a stark, dramatic representation of the problem as OWS sees it. It’s also a perfect illustration of the movement’s economic misunderstandings.

Second, from A. Barton Hinkle, The Disturbing Agenda of Occupy Wall Street:

The Occupy Wall Street (OWS) movement, obsessed with fairness, has benefitted from the lack of it. The protesters don’t think so—but that is because many of them have not thought enough.

The demonstrators resent disparity. So consider the disparity in coverage of OWS and the Tea Party. A single (still unsubstantiated) allegation that someone in the crowd at a 2010 Tea Party rally in Washington hurled a racial slur at Rep. John Lewis sufficed to prove the entire movement a kissin’ cousin of the KKK. But that “Google Wall Street Jews” guy? A lone nut. As for the signs calling for the “death of capitalism” and telling Wall Street bankers to “Jump, you [expletives]” and declaring “capitalism can’t be fixed—we need revolution”? Unrepresentative, surely. Ditto the 5:30 Oakland seminar on Marxism 101, and the dude in the Lenin T-shirt, and. . . .

Don’t feel bad if you missed such tidbits on the nightly news. Every movement has its whack jobs, but those on the left get politely overlooked.

Both of those are worth a read.

The Obama Justice Department and it’s brilliant Fast and Furious operation continues to receive scrutiny, as noted in today’s WSJ:

Top Justice Department officials have settled on a strategy for explaining a botched gun-trafficking probe that includes blaming the now-ousted U.S. attorney in Phoenix.

The department has spent much of the year dealing with questions about federal agents’ use of investigative tactics that resulted in the smuggling of firearms into Mexico. The issue is coming to a head Tuesday, when Attorney General Eric Holder is set to answer questions at a Senate hearing.

A hostile reception likely awaits from Republican lawmakers, who have pushed to make Mr. Holder accountable. More than 30 have called for him to resign.

The full article is here, and check here if you’re interested in following the hearing itself Tuesday.

Finally, Tim Cavanaugh asks What’s So Hard About Complying With Solyndra Subpoena:

If you want to see why “executive privilege” – the non-constitutional and vaguely defined notion that the president is entitled to conduct public affairs in secret – is a fake idea, take a look at the letter President Obama’s lawyer sent out on Friday.

“A significant intrusion on Executive Branch interests” is how counsel to the president Kathryn H. Ruemmler describes the House Energy and Commerce Committee’s subpoena for documents related to the half-billion-dollar loan guarantee to a company whose largest investors were Obama campaign donors.

Ruemmler’s refusal to comply [pdf] with the House subpoena is heavy on “good faith offers” and “more focused requests” and efforts to “work with the Committee” about “legitimate interests” and so forth. But her explanation for why the White House can’t come up with a full Solyndra document dump – ten months after the House began its investigation – is straightup bullshit[.]

Today’s video is from the ObamaCare realm, and provides a look at Ohioans’ efforts to protect against the law (click here to view in YouTube):

New Mexico

A lot of the NM posts in the past months have dealt with the state judiciary and its, um, various problems. Mike Gallagher has a good related column in the Albuquerque Journal over the weekend, but it requires a subscription. So here’s a somewhat extensive excerpt:

 Developments swirling around bribery and witness intimidation charges against a Las Cruces judge have thrust the state’s Judicial Standards Commission into the spotlight.

But when it comes to how the commission does its work, there isn’t much to see until the final act — if there is one.

Charged with investigating complaints of judicial miscon duct and recommending discipline, the commission is among the most secretive agencies of its kind in the nation.

And its activities have become even more hidden from public view under the current state Supreme Court’s interpretation of the state constitutional provision that established the commission back in the 1960s.

As it now stands, the only time the commission’s work is sure to come into public view is when it makes a final recommendation for disciplinary action to the Supreme Court.

Most judges operate under the belief they cannot even confirm they are the target of a complaint or are under investigation — much less respond to an allegation publicly — without potentially getting into trouble for violating the secrecy provisions in the Constitution.

The case of District Judge Mike Murphy of Las Cruces, who faces felony bribery charges for allegedly telling a lawyer she should make contributions to a local politico if she wanted to be appointed to the bench, illustrates how opaque the process is.

Other than two Judicial S t a nd a r d s C om m i s s ion requests asking the Supreme Court for Murphy’s temporary suspension, the public is in the dark about what, if anything, the commission is doing or what it is investigating.

The commission’s f irst request to suspend Murphy came in April before he was indicted. It was denied by the Supreme Court and remains sealed, so the grounds for the request are not known.

That is pursuant to a Supreme Court rule approved in 2009 sealing temporary disciplinary requests.

But the public did know the suspension had been requested because the Supreme Court’s public docket sheet included the case number, a brief description of the case and parties.

The court unsealed its order denying the request — but not the request and grounds for it — with all justices participating.

This summer, the high court approved another rule sealing even the docket in such matters.

The net effect is that in a similar case now, the judge could continue to preside in court and the public would never know a complaint had been filed, the general nature of the complaint or the fact that the Judicial Standards Commission had recommended an emergency suspension.

The second request to suspend Murphy temporarily without pay was filed in May and was based on the indictment. Because the Supreme Court granted it, the request and grounds for it became public.

* * *

In 1996, the American Judicature Society Executive Committee adopted a policy stating that the confidentiality of judicial discipline proceedings, while vital during the investigation of a complaint, should cease when the judicial conduct organization files formal charges against a judge.

Only 13 states have secrecy provisions similar to New Mexico’s.

In more open commissions, the process generally becomes open when the commission files a formal complaint. In some states, the process becomes public when the judge responds to a formal complaint.

At either of those points, the records involved are public.

In New Mexico, complaints become open much later — or they may never become public if the commission’s secret investigation or hearings don’t lead to a formal request for discipline.

* * *

The Judicial Standards Commission is a small, secretive agency established by a state constitutional amendment in 1967. It is an appendage of the state judicial system but is not part of the judiciary.

The commission consists of 11 members and hires an executive director, who then hires a staff of five.

The governor appoints six of the 11 members. The Supreme Court appoints two judges and one magistrate judge, and the State Bar appoints two attorneys.

The annual budget is less than $1 million a year, and it is separate from the judicial branch.

The Constitution says, “All papers filed with the commission or its masters, and proceedings before the commission or its masters are confidential.”

In the past, however, requests such as the one for a temporary suspension of Murphy have been public.

The 2009 Supreme Court ruling sealing commission requests for temporary action, according to the court, was required to protect the confidential nature of the commission’s proceedings — although the court has the discretion to make certain records public earlier, and at times has done so.

Investigations can last for months and lead to formal confidential hearings before commission members.

For more local issues news, check out NMPolitics.net and Errors of Enchantment.

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Categories: 2012 Election, Congress, Constitutional Rights, NM Politics
19
Oct 2011

Publius Daily Digest

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National

Last night the 2012 GOP field, or most of it, faced off in Las Vegas and Nate Silver has an interesting column declaring the debate a seven-way draw:

I’m not intrinsically averse to declaring winners and losers in presidential debates. But there are times when everything is fought more or less to a draw.

Sometimes that results from a sleepy, low-impact debate in which everyone plays to expectations. Tuesday’s debate in Las Vegas, feisty and dynamic, was not that. But there are also nights when each candidate has his strong moments and his weak ones, and it may be best to wait a few days to see which gain traction rather than rush to declare a winner.

See full column for his individual assessments. Today’s Political Diary has some additional debate coverage:

Herman Cain can thank Rick Perry and Rick Santorum for bringing the fireworks to last night’s debate. After being battered from all sides over his 9-9-9 plan, Herman Cain skated through the rest of the debate by letting the other two pile on Mitt Romney.

Early in the debate Mr. Santorum tried to light a fire under his campaign by laying into Mr. Romney for engineering a “government-run program” that has blown “a hole in the budget up there” and sets the precedent for “ObamaCare, which is going to blow a hole in the budget of this country.” Mr. Romney finally bristled, “You had your chance. Now let me speak.”

Mr. Perry tried a similar approach with no more success. When asked about the large number of uninsured in Texas, Mr. Perry blamed illegal immigration — and then accused Mr. Romney of knowingly hiring illegal immigrants in his home. Mr. Romney flatly denied the charges, but Mr. Perry continued to lash out at the frontrunner without sourcing his information. The lengthy tussle devolved into a debate over the debate rules, as CNN moderator Anderson Cooper looked on with some amusement.

At last the usually unflappable Mitt Romney quipped that “this has been a couple of rough debates for Rick, and I understand that and so you’re going to get testy.” After Mr. Perry pressed him some more, Mr. Romney snapped that “you have a problem with allowing somebody to finish speaking and I suggest if you want to become president of the United States that you let somebody finish speaking.” Neither candidate came off looking presidential, but Mr. Romney’s edgy responses provided a strong contrast between how he and Mr. Cain handle criticism.

Mr. Cain fumbled a bit when his opponents assailed his 9-9-9 plan, but he came off as more sure of himself when explaining his support for TARP and for a virtual fence on the border with Mexico. He also never mocked or belittled his opponents as Mr. Romney did. The former Massachusetts governor may have been trying to reassert his presence by dismissing his challengers, but his tone at times was vaguely reminiscent of the current occupant of the White House.

* * *

Herman Cain has been the target of his rival candidates for weeks and last night’s debate began with further efforts to undermine his ascent. The businessman has risen in the polls due in part to the appealing simplicity of his 9-9-9 plan, and he was repeatedly forced to defend its details against attacks last night, a chore he managed with only moderate success. Besides saying that state taxes and his national plan were “apples and oranges,” he didn’t offer much more than to say that his campaign’s analysis was more optimistic about the plan than others have been.

The tax exchange highlighted the difficulties inherent in selling such a sweeping plan, but Mr. Cain may have caused himself more damage when the conversation turned to foreign policy. Earlier in the day, CNN’s Wolf Blitzer had posed a hypothetical question wherein Al Qaeda takes an American soldier hostage and demands the release of prisoners from Guantanamo. Mr. Cain responded, “I can see myself authorizing that kind of a transfer.” During the debate, though, he said, “I would have a policy that we do not negotiate with terrorists. We have to lay that principle down first.”

Hmm. After the debate, he told Anderson Cooper that he misspoke in the Blitzer interview and that it was “moving fast.” That may be true, but it would be easier for him to absorb the self-inflicted wound if he had any real credibility on the subject.

All in all it was a bitter but entertaining end to run of September-October debates. The candidates won’t spar again until mid-November.

Speaking of GOP candidates, Art Laffer has now weighed in on Cain’s “9-9-9″ proposal:

It used to be that the sole purpose of the tax code was to raise the necessary funds to run government. But in today’s world the tax mandate has many more facets. These include income redistribution, encouraging favored industries, and discouraging unfavorable behavior.

To make matters worse there are millions and millions of taxpayers who are highly motivated to reduce their tax liabilities. And, as those taxpayers finagle and connive to find ways around the tax code, government responds by propagating new rules, new interpretations of the code, and new taxes in a never-ending chase. In the process, we create ever-more arcane tax codes that do a poor job of achieving any of their mandates.

Republican presidential candidate Herman Cain’s now famous “9-9-9″ plan is his explicit proposal to right the wrongs of our federal tax code. He proposes a 9% flat-rate personal income tax with no deductions except for donations to charity; a 9% flat-rate tax on net business profits; and a new 9% national tax on retail sales.

Mr. Cain’s 9-9-9 plan was designed to be what economists call “static revenue neutral,” which means that if people didn’t change what they do under his plan, total tax revenues would be the same as they are under our current tax code. I believe his plan would indeed be static revenue neutral, and with the boost it would give to economic growth it would bring in even more revenue than expected.

Read the full column.

David Harsanyi’s latest column asks What do Americans really think about Obama and his jobs plan:

Question: President Barack Obama is proposing a new affordable jobs plan that is supported by economists and is nothing like the plan that didn’t create jobs (because of the GOP’s insistence that the package not exceed a criminally meager $1 trillion) so that Americans can rebuild vital infrastructure—high-speed rail lines, Service Employees International Union membership rolls—and, have we mentioned, find jobs. Do you, like Martin Luther King Jr. and Jesus Christ, support this plan to invest in the future?

Yes: 99 percent. No: :(

Question: The president of the United States of America has proposed paying for his new stimulus plan, which you absolutely loved (see above), with the modest suggestion that trillionaires—and even a few billionaires*—do their part and give back a tiny itty little bit of the money they would probably otherwise spend on Learjets and Caligula-inspired socials to help fund investments to mitigate drastic cuts in spending that could potentially unleash tragic consequences beyond all human comprehension**. If the above weren’t a false choice, would you support such a plan?

Yes: the 99 percent. No: 1 percent.

Interesting note on Obama’s latest presidential road trip, which is so clearly intended to be at least partially political, from today’s Political Diary:

The Associated Press said that this week’s presidential road trip “focused heavily on political swing states” and described Barack Obama as “in campaign mode.” Reuters called it “a campaign-style bus tour across states vital to his 2012 re-election chances.” The New York Times reported that the trip was “ostensibly focused on promoting his jobs bill but equally intended to shore up a crucial segment of his electoral map. “Political pros might therefore wonder how much money the Obama 2012 campaign is chipping in to support this week’s swing through North Carolina and Virginia.

The answer is zero. The White House insists that the President is on official business, which means that taxpayers pick up the entire tab. Aaron Blake of the Washington Post notes that this isn’t the first time for a president who “has made a habit of mixing official business with swing state visits.” Readers will recall the August bus tour through the fertile electoral plains of the Midwest. On that journey, also courtesy of taxpayers, Mr. Obama offered a sort of rebuttal to the most recent Republican debate.

Since Mr. Obama is not attending any fundraisers during these trips, the Administration argues that the ventures are not political and his campaign doesn’t have to pay for them. This is lucky for the campaign, which has to be disappointed with its recent failure to attract voluntary donations. Obama 2012′s reported third quarter fundraising total of almost $43 million was actually a shade under $41 million, according to the Center for Responsive Politics, once returned contributions are taken into account.

This may still sound like a lot of money, but it’s less than the $45 million the campaign raised in the second quarter and nowhere close to the pace once expected of a campaign thought capable of raising $1 billion. But if the President is able to rely on taxpayer contributions to underwrite his campaign travels, he may need far less than $1 billion to mount a serious re-election bid.

SCOTUSblog has continued coverage of the ObamaCare legal challenges, check here for the latest. Today’s video is related, a conversation with Professor David Bernstein on his book Rehabilitating Lochner (click here to view in YouTube):

New Mexico

Paul Gessing has an interesting post up questioning the Albuquerque Journal’s apparent effort at political correctness — or just journalistic failure:

I saw the Sunday Albuquerque Journal on the supposed “rise of the independent voter” in New Mexico.

And, while I found the article informative on the whole, I think it missed the point. See the chart below. What it shows to me is a rapid decline in the number of registered Democrats in New Mexico while the number of Republicans has held steady during the last three decades.

The tenor of the article, rather than focusing on the massive shift of Democrat to independent, seemed to imply that both parties are losing influence. The reality is, however, that large numbers of voters have clearly expressed their frustration with one party, that being the Democrats.

Read the entire post here.

Mary Jane Garcia has an op-ed up at NMPolitics.net on the redistricting efforts:

This years’ redistricting legislative session was expensive, contentious and has caused much disappointment to many New Mexicans – there is no denying that. My Senate colleagues and I understand the frustration that the public has with the outcome of the session, especially when our constituents wonder why it took 19 days to develop redistricting legislation that was ultimately vetoed by Governor Martinez.

The true story of the redistricting session is anything but 19 wasted days of “golfing” and time spent not doing anything. The story of the redistricting session was one of preserving the sacred rights of equal representation and voting rights granted to us through the N.M. Constitution and U.S. Constitution. It was a continuation of the fight that African Americans faced when they willfully met the gnashing of canine teeth, blasting of water cannons, burning of tear gas and pounding of police batons in Selma, Alabama – all to guarantee the right to vote.

It was the fight of the Native American, which for nearly 172 years, from the inception of our country, did not have the right to vote. It was the persistence of Hispanics fighting to not have their political voice diluted by clever gerrymandering of district lines. This story was the great modern day reminder of the sacrifice leading to the approval of women’s suffrage.

* * *

Measuring the success of the redistricting session requires looking beyond clever slogans and glitzy sound bites. An accurate view shows that the work done during the special session was significant, heartfelt and meaningful.

Redistricting allowed many of us to stand on the shoulders of those who came before us to persist in the great struggle of assuring equal voting rights for all people in New Mexico.

What say PubliusNM readers to Ms. Garcia about the special session — does she have it right?

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Categories: 2012 Election, Constitutional Rights, National Politics, NM Politics
13
Oct 2011

14th Amendment History

By

Folks know by now I’m a fan of the Institute for Justice, so I had to share the latest video offering from my favorite libertarian lawyers. The folks at IJ have put together a very helpful history of the 14th Amendment to the U.S. Constitution — one that provides excellent context and demonstrates why it remains so important to us all today. It’s less than 15 minutes, so take some time to watch (click here to view in YouTube):

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Categories: Constitutional Rights, SCOTUS
13
Oct 2011

Publius Daily Digest

By

Courtesy of Reason’s Friday Funnies.

National

John Stossel hits the nail on the head (as usual) with his latest plea to keep Washington out of the economy:

President Obama says government will have to build the nation out of the economic trough.

“We’re the country that built the intercontinental railroad,” Obama says. “So how can we now sit back and let China build the best railroads?”

Ironic that he mentions the Chinese. Progressives used to complain that to build the railroad, bosses abused Chinese workers—called them “coolies” and treated them badly. Now this is big success?

I guess Obama doesn’t know that the transcontinental railroad was a Solyndra-like Big Government scandal. The railroad didn’t make economic sense at the time, so the government subsidized construction and gave the companies huge quantities of the best land on the continent. As we should expect, without market discipline—profit and loss—contractors ripped off the taxpayers. After all, if you get paid by the amount of track you lay, you’ll lay more track than necessary.

Credit Mobilier, the first rail construction company, made enormous profits by overcharging for its work. To keep the subsidies flowing, it made big contributions to congressmen.

Where have we heard that recently?

Read his full piece on Government the Job Killer.

Interesting–and blood-boiling–piece over at Investors Business Daily on Obama’s world apology tour:

The obsessive need of this president to apologize for American exceptionalism and our defense of freedom continued recently when Barack Obama’s State Department (run by Hillary Clinton) contacted the family of al-Qaida propagandist and recruiter Samir Khan to “express its condolences” to his family.

Khan, a right-hand man to Anwar al-Awlaki, was killed along with Awlaki in an airstrike in Yemen on Sept. 30. We apologized for killing a terrorist before he could help kill any more of us.

It’s yet another part of the world apology tour that began with Obama taking the oath of office to protect and defend the United States and its Constitution against all enemies foreign and domestic, something he immediately felt sorry for.

One stop on his tour was Prague in August 2009. There he spoke of “America’s commitment to seek the peace and security of a world without nuclear weapons,” ignoring that before 1945 we lived in such a world and it was neither peaceful nor secure.

Read more here. We’re a little behind on sharing it, but Brad Cates recently had a worthwhile read over at the Daily Caller on The Dangers of Imposing U.S. Law on Others:

The United States is increasing its efforts to impose its laws on sovereign countries and their citizens. These efforts will prove to be counterproductive and dangerous for both U.S. citizens and businesses.

Every sovereign country, but especially those in the democratic developed world, has a right to devise its own laws. This is the essence of sovereignty. Where international sovereign desires conflict or are silent, international law dictates that the conflict is resolved by convention or treaty, or by a mutual legal assistance treaty (MLAT).

Countries have different customs, beliefs, practices, and legal and legislative process. Actions that are legal, or illegal, in one country, or even one state, are not necessarily viewed the same elsewhere. Citizens of Little Rock may fly to Las Vegas to gamble, something prohibited in their city. Americans have been known to legally take a toke while in Amsterdam.

In the legal issues surrounding liberty department, Clark Neily of the Institute for Justice has an interesting series of guest-blogger posts up over at the Volokh Conspiracy detailing the issue of “judicial engagement” — an issue on which many conservatives and libertarians divide. Here is an excerpt of his Day 1 post:

he Institute for Justice coined the term “judicial engagement” (and created the Center for Judicial Engagement) out of our conviction that America has more government than the Constitution authorizes and that this is largely due to the failure of our courts to properly enforce constitutional limits on government power. In calling for judicial engagement, we are simply asking judges to actually judge the constitutionality of government action in all constitutional cases.

What does that entail?

In cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them. And, as Judge Sykes recently explained in analogizing the Second Amendment right to keep and bear arms to the First Amendment right of free expression in Ezell v. City of Chicago, “the government must supply actual, reliable evidence to justify” its restrictions. 2011 U.S. App. LEXIS 14108, *62 (7th Cir. July 6, 2011).

While reasonable minds may differ about whether it is possible to identify the government’s “true” ends or determine whether there is an appropriate “fit” between ends and means, the fact remains that courts routinely assume both inquiries are not only possible but essential in protecting key constitutional values. Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do.

* * *

Judicial engagement is not a call for judges to strike down laws willy-nilly. Rather, it is a call for judges to recognize the importance of constitutionally limited government and to maintain a basic level of analytical consistency. Judges should refuse to ignore evidence, invent facts, or accept implausible justifications in some constitutional settings that they would flatly — and correctly — reject in others.

A primary area of concern in the context of judicial engagement is the issue of economic liberty. IJ has historically litigated (extensively) on this issue and PubliusNM reader Mike Frese has his own Economic Liberty blog that is worth checking out and bookmarking.

We’ve neglected WSJ’s Political Diary recently, so here are some updates on the 2012 election and, in particular, of the most recent debate, courtesy of recent Diary posts:

Next year’s presidential race is shaping up to be a contest between pro-market advocates (Republicans) versus redistributionists (Democrats). Nowhere is this clearer than in the administration’s bid to position the Consumer Financial Protection Bureau as a key bulwark against evil banks and financiers.

For a glimpse of this message, see Deputy Senior Advisor and Assistant to the President Stephanie Cutter’s post on the White House blog last Thursday, where she characterized the CFPB as a “important new watchdog for consumers,” and tried to rebut Republican concerns about the agency’s unprecedented powers. The post was remarkable not just for Ms. Cutter’s enthusiasm, but for the fine line she walked between truth and outright fiction.

Ms. Cutter repeats, for instance, the Democratic mantra that the CFPB is an “independent” banking agency, and thus shouldn’t be subject to Congressional appropriations. What she doesn’t mention is that the CFPB isn’t a banking regulator with safety and soundness contraints, but rather a consumer agency akin to the Consumer Product Safety Commission. Nor did she mention the CFPB has few limitations on the disclosure of sensitive financial audits, as real banking regulators — the Federal Reserve and the Office of the Comptroller of the Currency — do. (In fact the CFPB has inked MOUs with State Attorneys General that has many bankers worried about politicized lawsuits.)

Ms. Cutter claims Congress has “ample oversight” of the CFPB through “hearings, reports and audits” and may “overturn any CFPB regulation through legislation.” This may be true, but it’s a far-fetched argument, given political realities. She also cites the Financial Stability Oversight Council as a key check on the CFPB, but fails to mention that the CFPB director has a vote in that body and that the rest of the chairs are filled by political appointees.

The rest of the post is worth reading, if only to see how a public-relations pro can argue her side. The CFPB was never meant to be a “consumer advocate,” but was structured as an unaccountable body that politicians could use to bring financial instituitions to heel when it was politically necessary. Some voters may think that’s good consumer protection; others may think it’s scary. But it’s worthy of a real–and honest–debate.

* * *

The scuttlebutt going into Tuesday’s debate was that Rick Perry could revitalize his campaign with a win or kill it with a loss. Most observers expected some fresh policy and a polished delivery. Mr. Perry instead

disappeared into the background. He neither defended his positions on immigration, vaccinations, or Social Security, nor made more than half-hearted efforts to dislodge Mitt Romney. He went silent for long stretches of time.

So why defy the conventional wisdom? It’s clear that Mr. Perry is in trouble. He’s dropped to third place (or worse) in Iowa, fallen to the low single-digits in New Hampshire polls, and, according to Public Policy Polling, has seen his favorables sink to 23%-57% nationally (Sarah Palin was at 32%-62% in August). Mitt Romney, meanwhile, is racking up big-name endorsements and debate wins.

The question is whether he could successfully wait it out. “Debates are not my strong suit,” he told to Politico — and he may have enough money to claw his way back to contention via a different route. If he could restore his brand through bottom-up campaigning, he might wait for Herman Cain to immolate, and then reemerge as the anti-Romney.

It would be risky. The political calendar is still in flux and comeback timing could be difficult with states jockeying to push up their primaries. Waiting for voters to become desperate usually isn’t the best way to win their forgiveness. If Mr. Perry still intends to dazzle on the big stage, next week’s debate in Nevada is most likely his last chance.

* * *

Some impressions from Tuesday night’s Republican presidential debate:

Herman Cain’s 9-9-9 plan isn’t built for the long campaign haul. As appealing as it is conceptually, and as bold as it may be (as Mr. Cain keeps saying), the plan’s new 9% national sales tax looks like a political poison pill. Michele Bachmann’s attack on it for creating a new “pipeline” for revenue for Washington was a direct hit, and Mr. Cain didn’t really have an adequate answer. Meanwhile, the journalist moderator’s line that it is a “regressive” tax is a harbinger of class war criticism to come. Mr. Cain has much to recommend him as a candidate, not least his commanding presence and likability, but in the national sales tax he has made that rare proposal that can be attacked from both left and right.

Mitt Romney keeps cruising along. He all but ignored Rick Perry, and everyone else on stage for that matter, focusing on President Obama and the economy. He is fortunate that the rest of the field continues to compete to be the main alternative coming out of Iowa, so they beat up on whoever else has risen in the polls. In previous debates it was Mr. Perry, and this week it was Mr. Cain and his 9-9-9 plan. No one has made a sustained attack on Mr. Romney’s Massachusetts record. Perhaps this is also because the candidates fear Mr. Romney’s strength as a debater. So far Mr. Romney has dispatched Tim Pawlenty and Mr. Perry when they sought to go after him, and no one else has really tried.

Newt Gingrich made the best attempt at exposing Mr. Romney’s main weakness as a candidate — his lack of core principles — and he succeeded in part. His query about Mr. Romney’s proposal for a cut in capital gains taxes only for those who make less than $200,000 sent the former Massachusetts governor into his own class-war mode. “I’m not worried about rich people. They are doing just fine,” he said. He then went into a paean to the middle class, which polls well and is why all Democrats since Bill Clinton have used similar language. It’s too bad Mr. Gingrich didn’t have a chance to follow up, because the answer exposed that Mr. Romney has an aversion to lowering tax rates on anyone Democrats call “rich.”

Mr. Perry seemed oddly subdued and diminished. He benefitted from no longer being the center of attacks from other candidates, but he still seemed unable to defend his Texas record on health care, much less sustain an argument against Mr. Romney. The Texas governor has the money to stay in the race and make a paid-media assault on Mr. Romney’s record. But while those ads may hurt Mr. Romney, they won’t help Mr. Perry if he doesn’t look capable and presidential.

* * *

HANOVER, N.H. — Mitt Romney walked off with Tuesday night’s debate here by default — if only because the candidates auditioning for the race’s anyone-but-Romney slot did not, well, make the anyone-but-Romney case. His competitors rarely challenged his record, credibility or message, and when they did, failed to land the punch.

Rick Perry was the only one who went after the former governor’s Massachusetts health-care record, but as usual was hazy on the specifics — despite the fact that his campaign released a commercial attacking Mr. Romney’s credibility. There was some sparring about the difference between “waiving” and “repealing” national health care, but little substance. Other attacks — such as on his income tax cap on capital-gains exemptions — saw no follow-through.

In the post-debate “spin room,” Herman Cain, acting as his own surrogate, said that he was different than Mr. Romney because “He’s a Wall Street executive and I’m a Main Street executive. . . . I’ve actually made hamburgers and pizzas,” he said, though anyone asking for something beyond biography brought him back to his 9-9-9 tax reform.

Michele Bachmann spokesman Alice Stewart called Mr. Romney’s health plan “the seed that grew into ObamaCare” and ought to be a “big liability” for the GOP nominee. Does she think it is disqualifying for the nominee? Merely “a hindrance.”

I tried to find out what the Perry campaign’s Romney strategy was, though its campaign surrogate’s relationship to the campaign was unclear. He alternatively identified himself as a “senior advisor,” “senior New Hampshire advisor” or “New Hampshire senior advisor.”

The larger danger of this vacuum for the GOP is that Mr. Romney enters the general election untested. As for the other candidates, there won’t be a not-Romney candidate if they’re unwilling to challenge Mr. Romney. As for Mr. Romney, senior advisor Eric Fernstrom said that his boss “hardly needs any preparation at all on the economy” before the debates. He was underlining the Romney campaign themes of private-sector economic expertise, but no wonder.

* * *

His campaign floundering, former House Speaker Newt Gingrich upped the wattage in last night’s New Hampshire debate, lashing out at Republicans, Democrats, the media, the Federal Reserve and anything else that moved — and not restricted to that order. The “outsider” approach earned Mr. Gingrich the night’s biggest applause lines, though to what end is unclear.

Mr. Gingrich has been increasing his volume with each successive debate, and last night was his loudest yet. Responding to a question about whether Wall Street bankers should go to jail, he shot back: “if you want to put people in jail, you ought to start with Barney Frank and Chris Dodd” — two Democrats who had close ties to mortgage lenders and who authored the recent financial overregulation bill. He called for a pink slip for Federal Reserve Chairman Ben Bernanke, who “spent hundreds of billions of dollars in secret bailing out business,” and suggested Treasury Secretary Tim Geithner ought to join Mr. Bernanke in unemployment. He then teed up his favorite piñata, the “news media,”for failing to demand “transparency” in the Fed.

House Republicans once again came in for a roasting by Mr. Gingrich, for agreeing to a deal with President Obama to raise the debt limit — although he didn’t explain what he’d have done instead. He took it to Mitt Romney for that part of the leading candidate’s economic plan that would restrict a capital gains tax cut to those Americans earning less than $250,000, which Mr. Gingrich labeled as Obama-like populism that would “divide” the nation. On the topic of Mr. Obama, he lumped the president with Jimmy Carter, spouting a “bleak” view of America in his continual “apologia disguised as press conferences.”

Since the summer defection of much of his campaign staff, Mr. Gingrich has been largely charting his own course, doggedly presenting himself as the wise and consummate outsider, willing to criticize Republicans and Obama alike. Voters are nonetheless having a tough time forgetting Gingrich the 1990s Politician, especially when he unveils (as he recently did) a “new” Contract with America. And for all the hoots and applause Mr. Gingrich’s witty put-downs earn him, voters seem more interested in those candidates willing to outline reforms, something Mr. Gingrich has largely given up attempting to do in debates. This may explain why the former Speaker continues to struggle with fundraising, and has shown no signs of breaking out in the polls. He’ll need something far more radical than punch lines to break the latest Romney-Perry-Cain narrative.

For any of you still wondering who to get behind, you might consider taking Reason’s recent political “dating game” quiz designed to “match” you with your ideal candidate:

Not sure who to commit to in the Republican primary race? Let Reason help you out.

Picking a presidential candidate is like sorting through online dating profiles—nobody’s quite right, but once a meet-cute is out of the question, the best you can hope for is to pick a mate out of a self-selected digital lineup.

Thus our handy candidate profiles and dating quiz. We’ve got the candidates’ horoscopes, their nick-names, and catalog of flip-flops. (Here’s looking at you, Newt Gingrich and Mitt Romney.) Is Rick Perry the real deal when it comes to small government? We can tell you. What are Herman Cain’s hang-ups? We’ve got those too.

Take our quiz to help select your ideal whatever-in-chief, or just prowl through the offerings by checking out our profiles of all the GOP wannabes.

The profiles of GOP wannabes courtesy of Reason are available here, and read Daniel Heninger’s review of The Unsinkable Mitt Romney at the WSJ here.

Reason’s coverage of the Occupy Wall Street movement has been great, so I’ll first direct you to the page with links to all the great articles. In particular, David Harsanyi’s Occupy Wall Street: A Manifesto is a must-read:

We hold these truths to be self-evident, that all men, women, and transgendered—and any other human who is able to elude the tyranny of work for a couple of weeks—are created equal. We gather to be free not of tyranny, but of responsibility and college tuitions. Prudence, indeed, will dictate that a government long established and a nation long prosperous be changed for light and transient causes. So let our demands* be submitted to a candid world.

First, we are imbued with as many inalienable rights as a few thousand college kids and a gaggle of borderline celebrities can concoct, among them a guaranteed living wage income regardless of employment and immediate across-the-board debt forgiveness—even if that debt was acquired taking on a mortgage with a 4.1 percent interest rate and no money down, which, we admit, is a pretty sweet deal in historical context…

…but down with the modern gilded age!

We demand that a Master of Fine Arts in musical theater writing, with a minor in German, become an immutable human right, because education is crucial and rich people can afford to fund unemployment checks until we find jobs or in perpetuity, whichever comes first.

Speaking of Occupy Wall Street, Remy has another video out (click here to view in YouTube):

New Mexico

At the end of last week our state GOP filed suit challenging state limits on campaign contributions. Heath Haussamen has the story here:

The lawsuit seeks to void the $5,000 limits placed on donations to political parties, from national parties to state parties, from state parties to county parties, from parties to candidates or candidates’ political action committees, and on contributions made for the purpose of forming independent expenditures. It doesn’t challenge limits on the size of donations individuals can make to candidates.

“Today we filed a lawsuit to protect New Mexicans’ right to freedom of speech,” state GOP Executive Director Bryan Watkins said in a news release. “We are confident that we will be successful in this case, as cases from around the country have found in favor of protection of freedom of speech, including a recent U.S. Supreme Court decision.”

Read the lawsuit here.

Also in the legal / political crossover news locally, redistricting has gone to the courts following Gov. Martinez’s veto. Multiple suits have been filed so the ultimate decision appears headed for our Supreme Court.

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Categories: 2012 Election, Constitutional Rights, Economy, National Politics, NM Politics
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