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10
Jul 2012

Roberts off the Rails?

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In the wake of the surprising ObamaCare decision, a great deal of the post-decision commentary has focused on Chief Justice Robert’s role — and particularly on the suggestions that he switched his position mid-course:

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

Read Jan Crawford’s full story here.  An interesting aspect of the story, beyond the obvious, is the evidence the story shows of leaks from the Supreme Court — an institution that is historically known for a lack of such leaks. The Volokh Conspiracy folks have some interesting posts on the leak story, see here and here. Slate has an informative story explaining that the Court’s reputation for a lack of leaks is actually undeserved:

The Supreme Court isn’t supposed to be like other institutions. It’s supposed to be something more, a place above partisan squabbling, insulated from the unseemly back and forth of politics. The court’s nine justices are the final arbiters of our biggest legal questions, and much of their work is supposed to be done behind closed doors. They hold oral arguments and release decisions—and remain a mystery to most people.

That’s what made CBS’s Jan Crawford’s story on July 1 so shocking. Crawford reported that Chief Justice John Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc. Her story cited “two sources with specific knowledge of the deliberations” among the justices, and it noted that Roberts’ “switch” was “known among law clerks, chambers’ aides and secretaries.”

The collective reaction of pundits and legal commentators seemed to be, gasp, “How could this happen? How could the Supreme Court leak?” Harvard Law School’s Jack Goldsmith hadjust argued that the court is typically “better at stopping leaks” than other government institutions. Time’s Adam Sorensen described Crawford’s story as a “once-in-a-lifetime scoop.” Robert Shrum, like many others, described the leaks as “unprecedented.”Meanwhile, Orin Kerr, a law professor at George Washington University, wrote on the legal blog The Volokh Conspiracy that “the leak is pretty incredible” and that he “can’t remember anything quite like” it.

No doubt the leak is incredible, and no doubt the justices are good at keeping secrets. But there is nothing unprecedented about the Supreme Court dishing on what happens behind the red curtain. The court has a long and colorful history of leaks that dates back to the mid-19th century. Just like last week, leaks have sprung in the past commenting on a decision soon after the justices released it. Inside accounts of the personal relationships among the justices have long been served up to journalists. Indeed, some court opinions have leaked even before the justices had a chance to announce them.

Moving on from the leak issue, there are a great many stories analyzing the decision itself. Here are a few:

Also interesting are the looks at the aftermath of Roberts’ switch:

It’s also worth checking out Rasmussen’s post-decision poll of the public’s view of the Supreme Court reported on July 1:

Public opinion of the Supreme Court has grown more negative since the highly publicized ruling on the president’s health care law was released. A growing number now believe that the high court is too liberal and that justices pursue their own agenda rather than acting impartially.

A week ago,  36% said the court was doing a good or an excellent job. That’s down to 33% today. However, the big change is a rise in negative perceptions. Today, 28% say the Supreme Court is doing a poor job. That’s up 11 points over the past week.

The new Rasmussen Reports national telephone survey, conducted on Friday and Saturday following the court ruling, finds that 56% believe justices pursue their own political agenda rather than generally remain impartial. That’s up five points from a week ago. Just half as many — 27% — believe the justices remain impartial. (To see survey question wording, click here.)

On an interesting end note, Tom Goldstein has a lengthy investigative piece detailing the ten minutes or so on decision day when two major news outlets actually had the story wrong.

Here’s Paul Ryan’s take (click here to view video at foxnews):


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Categories: Constitutional Rights, Health Care, SCOTUS
28
Jun 2012

ObamaCare Decision: Early Roundup

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For those wanting to dive right in, here is the opinion.

Up front, there are two silver linings: (1) the court did NOT vote that the Commerce Clause allows for the individual mandate (tiny solace there); (2) states CAN opt out of the Medicaid expansion without losing all federal funding — they only lose new funds. As Lyle Deniston of SCOTUSblog pointed out this morning:

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Other good news is political: this now gets hung around Obama’s neck for the duration of the election cycle.

On to the early explanations and analysis.

SCOTUSblog’s early “In Plain English” explanation of the decision from the Live Blog:

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

The WSJ’s early analysis is out here:

 The court said Congress was acting within its powers under the Constitution when it required most Americans to carry health insurance or pay a penalty—the provision at the center of the two-year legal battle.

The ruling is a victory for Democrats and President Barack Obama, who had passed the biggest reworking to the health system since the creation of Medicare in the 1960s and faced the prospect of the court nullifying their effort. It also averts disruption for hospitals, doctors and employers who have spent more than two years preparing for changes in the law.

* * *

Although the law survived the court challenge, it faces an uncertain future. Republican presidential candidate Mitt Romney and GOP congressional leaders have pledged to repeal the law if they take control of Congress and the White House in November elections.

The court’s decision, while a relief to Democrats, could further energize voters who dislike the law to back Republicans in November. And it forces the Obama administration to continue defending the unpopular insurance mandate.

On the other hand, the court’s blessing could itself shape public opinion of the law, particularly among independents and undecided voters who view the justices as relatively free of the partisan agendas of the government’s elected branches. Polls consistently show that the public places greater confidence in the Supreme Court than either Congress or the presidency, although the justices’ approval ratings have slipped somewhat over the past year.

Analysis from SCOTUSblog:

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

Here is early commentary from Reason:

In the main dissent from today’s Supreme Court ruling upholding the Patient Protection and Affordable Care Act, four justices (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) say the individual health insurance mandate goes beyond anything that has passed muster under the Commerce Clause before:

The striking case of Wickard v.  Filburn, 317 U. S. 111 (1942), whichheld that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficientlythat it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not  an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

Thomas goes further in a separate dissenting opinion, where he reiterates his longstanding position that the “substantial effects” test underlying Wickard “is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” Quoting himself, he says the test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.”

Chief Justice John Roberts, who wrote the majority opinion, agrees with the dissenters that the mandate does not qualify as a regulation of interstate commerce (which is why his argument rests on the tax power instead)

On the lighter side, Katherine Mangu-Ward compiles the broccoli references in the opinions here.

From Roger Pilon at CATO:

Even though the Supreme Court action today is a setback for those of us who’ve fought for decades to revive limited constitutional government, it’s hardly the end of the road. The ideas this litigation put in play – in the court decisions below, in the oral arguments before the Supreme Court, and in the huge debate that has taken place across the country – will not go away. They’re the ideas of limited constitutional government that are as compelling today as they were when the Founders first articulated them over two centuries ago, even if this Court has found itself unable to give them force in this case.

But it’s not simply that the ideas are now “out of the bottle” as they haven’t been for a very long time. More deeply, it’s because they address the fundamental problem the nation faces today – out-of-control government, at all levels, giving us a looming economic disaster – that they’ll increasingly be in play. After today’s decision, it will fall to the people themselves, who’ve opposed this legislation from the beginning, to elect a Congress that stands for restoring limited constitutional government, such that a future Court will be better able to do what this Court should have done.

Human Events has some early GOP reactions:

The first reaction I saw came from Sarah Palin, via Twitter: “Obama lied to the American people.  Again.  He said it wasn’t a tax.  Obama lies, freedom dies.”

Rep. Michele Bachmann, who said she would be present in the courtroom when the decision was announced, was quick to Tweet as well: “SCOTUS announced ObamaCare substantially upheld.  Disappointing, but we move forward and we WILL repeal it.”

Statement from the office of House Speaker John Boehner: “The president’s health care law is hurting our economy by driving up health costs and making it harder for small businesses to hire.  Today’s ruling underscores the urgency of repealing this harmful law in its entirety.  What Americans want is a common-sense, step-by-step approach to health care reform that will protect Americans’ access to the care they need, from the doctor they choose, at a lower cost.  Republicans stand ready to work with a president who will listen to the people and will not repeat the mistakes that gave our country ObamaCare.”

Rep. Tim Huelskamp (R-KS) was blunt: “When they look back on the American system of once-limited government, June 28, 2012 will stand as a definitive date in the advance of government tyranny.  Today, a slim majority of the Supreme Court turned our Constitution on its head, and ruled that the federal government, in effect, can force upon the American people anything it damn well pleases – as long as it is called a tax.  Unlimited federal power, combined with judicial activism, has crafted a new regime that has destroyed our Founders’ vision.”

Read full piece for more. Speaker John Boehner has promised a new vote to repeal ObamaCare in the U.S. House the week of July 9.

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Categories: 2012 Election, Constitutional Rights, Health Care, SCOTUS
28
Jun 2012

Decision Day: pre-decision tools

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For those awaiting the ObamaCare decision this morning, here are a couple of useful posts to check out in the meantime.  In just under half an hour, if you’re watching online, you should be doing so at this link.

First, a “reader’s guide” to the decision(s):

Supreme Court decisions are issued in a predictable format.  What they say, though, is far from predictable.   And, with the decision expected Thursday in the health care case, figuring out what it says will be complicated by the near-certainty that the Court will not be unanimous.  While an opinion that speaks for a majority — that is, at least five Justices – will be the one that controls the bottom line (what is actually decided), any added opinions may better illuminate or even limit the scope of the outcome or, in fact, help to create multiple outcomes.  Indeed, a case can be decided with less than five Justices agreeing on the reasoning, but at least that many have come together on the bottom line.  That makes it even more important to find out what is in the separate opinions.

Obviously, then, this can be daunting, even for one who has experience in reading Supreme Court opinions, but especially for someone encountering an opinion for the first time.   Fortunately for both regular and new readers, there is almost always a very helpful and much shorter discussion of what has been decided, and it comes out with the opinion itself — indeed, it makes up the opening pages of the  document.  It is sometimes called the “headnote,” but the Court calls it a “syllabus.”   Whatever its name, its function is clear: to describe, in dependably accurate terms, what the Court has decided and how the Justices have voted.

SCOTUSblog also has a summary of the issues to be decided:

If the Court does decide to decide, it has four issues before it — three of which are somewhat clustered, and one of which stands somewhat (but not entirely) alone.

The three that are definitely bunched together could be decided with a ruling on just one of them, or with a ruling on just two, or with a ruling on all three, separately.   Those three issues all relate to the insurance mandate, or what is technically labeled the “minimum coverage” provision.   By that provision, the most controversial of all, Congress declared that virtually every American (there are a few exceptions) must obtain health insurance before the year 2014, or else pay a financial penalty with their tax returns until they do get a policy.

So the individual mandate is one of the clustered issues.  The second is whether the Court has the authority to decide the fate of the mandate.  And the third is whether, if the mandate is struck down as unconstitutional, other parts of the massive Affordable Care Act must fall with it — if any.

The authority-to-rule question turns upon the meaning of a section of the federal Anti-Injunction Act, first enacted by Congress in 1867.  That section was designed to protect the federal government’s capacity to continue collecting tax revenues, to keep the national government running.  It says simply that no one may go to court to challenge a tax law before it actually goes into effect, and before they have been compelled to start paying the tax-related penalty.   If the AIA is found to be binding in this case, then the mandate’s fate (if not repealed by Congress in the meantime) could not be decided until after it goes into effect in 2014.   The final answer might not be known until sometime in 2015, after another round of court review.

The choice before the Court on the AIA issue might appear to be an easy one:  if the individual insurance mandate is a tax law, then no one is legally free to challenge it in court now, and all cases focused on that issue would have to be dismissed as beyond judicial authority at this time.  But it actually is not easy.   The Court must first decide whether the individual mandate is a tax provision, based on its presence in the tax code and the fact that it has a tax-related penalty, plus the further fact that it will, indeed, raise a good deal of revenue.  And, even if it is deemed a tax provision, does the federal government have a right to waive the AIA block to litigation over its validity or is this the kind of jurisdictional law that can’t be waived?

Suppose that the Court finds that the AIA does apply.  That takes off the Court’s agenda a decision on the mandate itself, and, obviously, also removes any need to decide what other parts of the law fall with it.  That is the three-in-one potential of the AIA question.

But suppose the Court were to rule that AIA does not apply, perhaps because the mandate is not a tax provision at all, or perhaps because it is, but it can be waived in a case like this.  Then the Court would have to move on to the second of the clustered issues: is the mandate, in fact, unconstitutional?   If the Court upholds it as constitutional, that makes it unnecessary to decide the third item in the cluster: what else falls with the mandate, or does none of it fall?   But if the mandate is struck down, the Court has to get to that third issue (which is called the “severability” question, because it involves deciding whether the invalid part of a law can be sliced off from all, or at least part, of the rest).

If the mandate is nullified, the severability issue would be a really hard one for the Court to resolve. Would it go through the hundreds of pages of the Affordable Care Act, and pick and choose which provisions are tied to the mandate and which are not, or would it pass that issue off to a lower court or to Congress?  During the hearings on severability in March, the Justices showed a distinct distaste for handling that task themselves.

This brings the summing-up to the fourth issue, in some ways separated.  That issue is whether Congress exceeded its constitutional powers by enacting, as part of the new law, a very wide expansion of eligibility for the government-subsidized Medicaid program of providing medical care to the poor.   This may be thought of as separate from the clustered three issues, because a decision not to decide the mandate and severability issues (because the AIA prevents such a ruling) would not affect the need to decide the challenge to the broader Medicaid eligibility.

But before getting further into that question, it is necessary to point out that, in fact, it may not actually be separated from the mandate and its associated cluster issues.  If the Court strikes down the mandate, and then concludes that all of the rest of the law must go with it, then the Medicaid expansion, too, is dead.  And, if the Court strikes down the mandate, but not all of the rest of the ACA, then it must still address whether at least the Medicaid expansion will be among the doomed provisions.

Suppose, though, that the Medicaid expansion does avoid being nullified.   The Court must then decide whether to do something it has not done to a federal law in three-quarters of a century: strike down a law that Congress enacted by using its power under the Constitution’s Spending Clause.  (The mandate part of the law was based upon the Commerce Clause, not the Spending Clause.)  Three times since the last use of the Court’s power to nullify a federal law was used against a Spending Clause measure, the Court has said that it might be possible that the conditions Congress imposed on someone receiving federal funds were so onerous that they would amount to coercion.   In other words, the conditions actually forced the recipient of money to make a choice it would not otherwise make.

In mentioning the “coercion” possibility, the Court has done so in the context of complaints by state governments that a federal spending program under which they could get funds was being enforced with such harsh conditions that the states’ choice to take part, or not, was being coerced, thus compromising their sovereignty and dignity within the Federal Union.   The Court has never actually used the “coercion” theory to nullify any federal law, but it has at least agreed to consider it as it weighs the validity of the Medicaid expansion.   That is the very hard fourth question that may well remain after the Court has done what it is going to do with the mandate.

The states challenging the ACA have argued that the entire Act must fall, on the theory that all of its parts are interlocking and must stand or fall together.  The federal government has argued that many of the ACA’s parts have little or even nothing to do with the mandate, and that, therefore, the only parts of the law that should go down if the mandate does are the command that insurance companies may not turn aside individuals because they have pre-existing medical conditions, and the separate provision that limits insurers in varying their premium rates because of the age or medical health of those who seek coverage.   But there is also an argument in the case that, whatever the fate of the mandate, the rest of the ACA should remain intact and working.

Look for further posting after the decision comes out and smart folks have begun dissecting it.

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Categories: Health Care, SCOTUS
11
Jun 2012

Resource on ObamaCare Decision Day

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For those of us who want to see timely and detailed coverage of the Supreme Court’s ObamaCare decision as soon as it comes out, I recommend bookmarking SCOTUSblog.com. Here is their description of planned coverage:

We have put a special plan in place for the day that the Court decides the health care cases.  We’ll put this plan into effect on every opinion day for the last two weeks of June; if the health care decisions are not released on a particular day, we’ll revert to our ordinary operations.

To accommodate high traffic to the blog on decision days for the last two weeks of June, we will be temporarily adopting a new format. When you visit scotusblog.com, you will be directed straight to the live blog rather than our homepage.  When the Court announces the opinion in the health care cases, the live blog will remain active for several hours.  We will link to all of our initial reporting and analysis of the opinion, as well as an ongoing round-up of coverage by other news outlets, on the live blog.  That way you won’t have to refresh the page, and the blog won’t crash from the traffic we receive.

On the day of the opinion, Tom and Lyle will be present at the Court and will break the news in the live blog. Following the initial announcement, we will also be posting detailed analysis of the opinion, including analysis “In Plain English,” as well posting as key excerpts from the opinion itself. The blog will also be hosting a webinar with Kaiser Health News at four o’clock on the afternoon of the opinion announcement (more information will be available soon) and an immediate online symposium, which will continue for several days after the opinion is released.  A list of the contributors is below the jump.

Confirmed contributors to our symposium on the decisions:

Jonathan Adler – Case Western Law School

Robert Alt – Heritage Foundation

Randy Barnett – Georgetown Law Center

David Bernstein – George Mason School of Law

Erwin Chemerinsky – University of California, Irvine School of Law

Richard Epstein – New York University Law School

David Kopel – Independence Institute

Gillian Metzger – Columbia Law School

Alan Morrison – George Washington Law School

Clark Neily – Institute for Justice

Ilya Shapiro – Cato Institute

Ilya Somin – George Mason School of Law

Laurence Tribe – Harvard Law School

Adam Winkler – University of California, Los Angeles School of Law

Elizabeth Wydra – Constitutional Accountability Center

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Categories: Health Care, SCOTUS
16
May 2012

Publius Digest

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National

A number of our readers and friends are members of the American Legislative Exchange Council (ALEC) or have attended ALEC conferences. As the organization finds itself under significant fire, folks from Texas Public Policy Foundation take up its defense in the WSJ this week:

ALEC is under sustained attack from organizations that fundamentally disagree with its commitment to limited government and economic freedom. But instead of debating these issues, they are now accusing the 39-year-old council—a partnership of state legislators, entrepreneurs and civil-society organizations—of misdeeds ranging from voter suppression to indirect responsibility for the tragic shooting death of 17-year-old Trayvon Martin in Florida in February.

* * *

In a society where vote fraud is still a real problem, and where Americans are routinely required to show a picture ID to buy cigarettes, cash checks, or enter any major office building in New York City, ALEC dares to suggest that voters be required to show a picture ID. In the imagination of ALEC’s critics, it’s OK to require an ID to ride a train—but not to require an ID to determine the future of the greatest country in the history of the world.

There is now even an effort to link the Martin tragedy with ALEC-supported legislation, sometimes known as “stand your ground” laws, to allow people to defend themselves. Despite the disgraceful eagerness of opportunists to make political hay off a young man’s death, no actual linkage between that crime and the council exists.

ALEC’s real crime is this: For nearly four decades, it has been an effective, engaged facilitator of good governance and liberty-oriented legislation in statehouses across the country. Its critics don’t just object to one or two of the council’s programs, they object to its existence.

Read more here.

Speaking of Trayvon Martin, Florida’s George Zimmerman is bringing national attention back to an important issue: hate crimes. Reason’s Jacob Sullum explains:

WFTV, the ABC affiliate in Orlando, reports that the FBI is looking for evidence to support federal hate crime charges against George Zimmerman for shooting Trayvon Martin on February 26. Three reasons it should stop:

1. There is very little evidence that Zimmerman hates black people, let alone that he shot Martin because he hates black people.

2. In the absence of a legal justification (such as self-defense), killing people should be a crime, but hating them because of their skin color should not be. By treating crimes more severely when they are motivated by bigotry, hate crime laws effectively punish people for their beliefs.

3. Federal hate crime laws are even worse, because they expose defendants to double jeopardy (although the courts deny this reality by calling it “dual sovereignty”). The federal investigation means that even if a Florida jury acquits Zimmerman of second-degree murder and manslaughter, he can be tried again for the same crime (killing Martin) under a different label (a possibility I noted two months ago).

Whole article here.

Walter Williams is always one to make us think, no less so today with his query, Should We Obey All Laws?

Let’s think about whether all acts of Congress deserve our respect and obedience. Suppose Congress enacted a law — and the Supreme Court ruled it constitutional — requiring American families to attend church services at least three times a month. Should we obey such a law? Suppose Congress, acting under the Constitution’s commerce clause, enacted a law requiring motorists to get eight hours of sleep before driving on interstate highways. Its justification might be that drowsy motorists risk highway accidents and accidents affect interstate commerce. Suppose you were a jury member during the 1850s and a free person were on trial for assisting a runaway slave, in clear violation of the Fugitive Slave Act. Would you vote to convict and punish?

A moral person would find each one of those laws either morally repugnant or to be a clear violation of our Constitution. You say, “Williams, you’re wrong this time. In 1859, in Ableman v. Booth, the U.S. Supreme Court ruled the Fugitive Slave Act of 1850 constitutional.” That court decision, as well as some others in our past, makes my case. Moral people can’t rely solely on the courts to establish what’s right or wrong. Slavery is immoral; therefore, any laws that support slavery are also immoral. In the words of Thomas Jefferson, “to consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Soon, the Supreme Court will rule on the constitutionality of Obamacare, euphemistically titled the Patient Protection and Affordable Care Act. There is absolutely no constitutional authority for Congress to force any American to enter into a contract to buy any good or service. But if the court rules that Obamacare is constitutional, what should we do?

State governors and legislators ought to summon up the courage of our Founding Fathers in response to the 5th Congress’ Alien and Sedition Acts in 1798. Led by Jefferson and James Madison, the Kentucky and Virginia Resolutions of 1798 and 1799 were drafted where legislatures took the position that the Alien and Sedition Acts were unconstitutional. They said, “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government … (and) whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” The 10th Amendment to our Constitution supports that vision: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Now this one is just plain funny…and a bit sad:

The administration that brought you the worst Mother’s Day card since that one from Futurama has been finding all sorts of interesting ways to campaign through the White House’s website. In a move that is somehow both unbelievably arrogant but also completely pointless, congratulatory statements of President Barack Obama’s accomplishments have appeared in the biographies of otherpresidents.

Rory Cooper of the Heritage Foundation tweeted his discovery of the edits, which were then picked up by Seth Mandel at Commentary Magazine. At the bottom of the biographies of many of the presidents of the 20th Century, a “Did You Know?” bullet point attempts to tie that president to Obama’s accomplishments in office.

For examples, see more here.

Today’s video is a long one, but an interesting trip down memory lane. It is the full length of the debate between Jimmy Carter and Ronald Reagan the week before the November general election in 1980 (click here to view in YouTube):

New Mexico

Farewell from PubliusNM to Erik Ness. The Westerner has a nice write-up about Mr. Ness.

Erik Ness, a longtime champion of the state agriculture industry, friend to politicians of every stripe, husband, father, grandfather and cowboy bon vivant, is dead.

Ness, 57, died Saturday at his home in Las Cruces following a struggle with pancreatic cancer.

Ness, who grew up in Alamogordo, attended the University of New Mexico and New Mexico State University from which he graduated. He briefly worked as a reporter for KOB radio in the early 1980s.

But in 1982 he was hired by the New Mexico Farm & Livestock Bureau to be its communications director. In that job, which he kept until his retirement in 2010, Ness served as a press spokesman, produced radio programs and wrote and edited magazine articles for the organization.

An article published after his retirement in 2010 in New Mexico Farm & Ranch, the official publication of the bureau, quoted Ness talking about the agricultural community.

“The people we work for are a colorful cast of characters,” he said. “They are real people with pioneer backgrounds, their ancestors came here in wagon trains, and that is interesting,”

Ness told the publication that through the years he’d been offered jobs in Albuquerque and Washington, D.C. but he turned them down saying, “… it is hard to hunt antelope in Albuquerque and D.C.”

More from The Westerner here.

Heath Haussamen updates us on the GOP primary race  to replace state Senator Clinton Harden from Clovis:

The GOP primary race to replace Clinton Harden in the N.M. Senate has been colored by controversy that includes anger over the governor’s backing of Angie Spears and Pat Woods’ shifting explanation for why he gave campaign contributions to Democrats.

The governor has offended some Republicans, and her involvement in the race led a third candidate to drop out and endorse Woods. Meanwhile, Woods’ statements about campaign contributions and lobbying raise ethical questions about his prior activities in Santa Fe.

The controversy started when Harden, R-Clovis, announced he wouldn’t seek re-election this year – and, as NMPolitics.net reported, “gave Gov. Susana Martinez her first victory of the 2012 election.”

More here.

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Categories: 2012 Election, 2012 Elections, Constitutional Rights, Health Care, National Politics, NM Politics
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
28
Nov 2011

Publius Daily Digest

By

National

Big news of the morning is Barney Frank’s retirement:

Rep. Barney Frank (D-Mass.) will announce Monday that he is not seeking re-election, ending a 32-year career in the House.

Frank, 71, is the top Democrat on the Financial Services Committee and the architect, with former Sen. Chris Dodd (D-Conn.), of the sweeping Wall Street regulatory reform law enacted in 2010.

He is scheduled to hold a press conference at 1 p.m. in his district, according to a spokesman, who said the congressman would announce at that time the reason for his decision. His retirement will deprive the House of one of its most colorful characters, a man known for his quick and often caustic wit.

Elected in 1980, Frank survived scandal early in his career and rose to become the nation’s most powerful openly-gay elected official. After coming out publicly, he became a champion for gay rights and helped campaign for an end to the military’s ban on gays serving openly, which ended this year.

More from The Hill here. Also keep up with the breaking story on Townhall.com, which is currently noting:

(1) With Frank out, the Democrat next in line to become the ranking member on the House Financial Services Committee is Rep. Maxine Waters of California.  In other words, another ethically pristine,meek personality.

(2) With Frank out, both authors of the controversial 2010 Wall Street “reform” bill (which enshrined “too big to fail” and left Fannie Mae and Freddie Mac unscathed) will be out of Congress — each with anethical cloud hanging over his head.

(3) With Frank out, a scramble is already underway to replace him.  Several Democrats are moving to run in Franks recently re-drawn district, and Republican Elizabeth Childs had already announced plans to challenge Frank in 2012.  Massachusetts lost one Congressional seat in reapportionment; two sitting members from the state’s 100 percent Democratic House delegation have now announced they won’t return in 2013.

PubliusNM friend John Dendahl has recently posted about the implications of Ohio’s recent election for Big Labor. On November 16, Dendahl noted:

Two ballot issues in Ohio produced the most talked-about results, at least in part on account of the appearance of voter Schizophrenia.  By a margin of 61-39 percent, about 3.5 million Ohioans voting on Issue 2 “vetoed” Senate Bill 5 enacted last March. That law placed limits on public employee unions’ bargaining rights and stepped-up employees’ financial responsibility for their health insurance and retirement contributions. (Arguments pro and con can be seen here.)

The Issue 2 vote is seen as a big victory for organized labor and for the national leader who has advocated for union interests in Ohio and Wisconsin elections, Pres. Obama.

Not so fast, though. By an even larger margin, 66-34 percent, the same voters approved Issue 3, a constitutional amendment barring that state’s citizens from being required to purchase the health insurance that is the lynchpin of the Patient Protection and Affordable Health Care Act, ObamaCare in shorthand. Since ObamaCare looms as a major issue in the 2012 presidential election, this is seen as a huge loss for Obama. Hence the appearance of voter Schizophrenia.
The union side on Issue 2 spent some $30 million, perhaps three times the opposition’s spending. For perspective, John Kasich’s campaign spent under $19 million last year getting him elected governor. Remaining to be seen is whether in fact this turns out to be the win for organized labor that is superficially apparent. Gov. Kasich had said repeatedly that the changes in law are mandatory for the state and political subdivisions to finance operations without severe layoffs.
Webinar guest speaker John Fund, until recently a respected political analyst and reporter for The Wall Street Journal and now writing a book, called the union win “a Pyrrhic Victory,” suggesting that unions will now pay the price of job losses.
In a follow up post on Nov. 23, Dendahl explained further:

After I blogged the other day about who really won in the Ohio ballot fight over public employee unions, over at News21, my kids who live there sent a related piece published in Columbus by the mayor of a nearby small town, entitled “A few tweaks could improve collective bargaining.”  They commended it to me as “thoughtful.”

My reaction was that (a) the mayor had indeed written a thoughtful piece, but that (b) I still can’t share his faith in binding arbitration. A city’s elected leadership should not be barred from deciding to take a strike or instituting a lock-out. So, in that view, one might argue that the mayor is nibbling around the edges. I do understand, though, that he was writing from a position materially weakened by the election (Issue 2 on the Ohio ballot on November 8) and, perhaps, attempting to get some cheese out of the trap.

If a business executive and/or board of directors agrees to a labor contract that is economically ruinous, sooner or later the executive, the board or the entire company is gone.

John J. Pitney has an interesting piece up at the Washington Post discussing five myths about Newt Gingrich:

1.Gingrich is an academic.

He earned a PhD in history and taught college before winning a seat in Congress. He has often spoken of himself as a historian. In 1995, he told CNN’s Bob Franken: “I am the most seriously professorial politician since Woodrow Wilson.”

But whereas Wilson spent years publishing scholarly works, Gingrich was more like the professor who wins popularity awards from undergraduates but doesn’t get tenure because he doesn’t publish anything significant. He even told a college newspaper in 1977 that “I made the decision two or three years ago that I’d rather run for Congress than publish the papers or academic books necessary to get promoted.”

Since then, he has given countless lectures and written more than 20 books, but has never produced truly serious scholarship. A typical Gingrich work is full of aphorisms and historical references — and devoid of the hallmarks of academic research: rigor, nuance and consideration of alternative views. Conservative political scientist James Q. Wilson once assessed materials for a televised history course that Gingrich was teaching as a “mishmash of undefined terms .?.?. misleading claims .?.?. and unclear distinctions.”

Yet Gingrich has been quick to cite his credentials as a source of authority. In a letter to Reagan budget director David Stockman, he once wrote: “From my perspective as a historian, you don’t deal in the objective requirements of history.” And recently, he suggested that mortgage giant Freddie Mac had paid him for his historical expertise, not his Capitol Hill connections.

Read the other four myths here. Speaking of the 2012 primary, Gary Johnson is now contemplating an LP run:

Former two-term Gov. Gary Johnson (R-N.M.) tells the Santa Fe New Mexican that he feels “abandoned” by a Republican Party that shut him out of all but two of GOP presidential debates so far. As a result, he’s mulling over the idea of running for the Libertarian Party’s presidential nomination.

“If I’d have been included in 16 of the last debates we wouldn’t even be having this conversation,” Johnson said.

Johnson said there have been “overtures made” by the Libertarian Party. While there’s no guarantee he’d win the nomination, Johnson believes he’d have a fair chance….

* * *

There’s little doubt that Johnson – who unambiguously supports an end to the drug war, a non-interventionist foreign policy, reproductive rights, liberalized immigration policy, free trade, and many other libertarian position – would be the highest-profile LP candidate at least since Ron Paul hit the hustings back in 1988. As a pol who won election twice in a Democratic-heavy state and governed to bipartisan acclaim, he’d also be the first one who could point to administrative experience and success, which would surely help with publicity for the LP’s existence and positions.

Since we’ve got some interest in voter fraud (discussed more below), here’s  a lengthy but relevant video for today. On November 11, at the Federalist Society’s annual convention, the Free Speech & Election Law group hosted a panel discussion on the issue featuring, among others, John Fund former WSJ columnist (click here to view in YouTube):

New Mexico
Heath Haussamen’s latest opinion piece decries Secretary of State Dianna Duran’s recent report on possible electoral fraud as “snarky” and untrustworthy:

There should be no doubt that electoral fraud can and does happen, at least occasionally, in New Mexico.

Two of the most recent examples come from Doña Ana County, where a former Sunland Park judge wassentenced to 18 months on probation in 2009 for fraudulently voting and registering as a candidate for judge, and where someone involved in the county GOP allegedly altered seven voter registration forms to change new voters’ party affiliation from “declined to state” to Republican.

There should also be no doubt that there are problems with New Mexico’s voter rolls. Secretary of StateDianna Duran knows it. County clerks from both parties know it.

There should be a bipartisan way to address these issues. Voters essentially charged Duran with leading such an effort when they elected her last year, making her the first Republican secretary of state in eight decades. Duran had the support of many Democrats, including some county clerks.

In electing Duran, voters sent a strong message that they’re tired of shenanigans in the Secretary of State’s Office and want integrity in their elections.

But instead of leading a bipartisan effort to address problems with the voter file, Duran has created division with a months-long investigation that lacked transparency and integrity. As a result, the likelihood of county clerks and legislators from both parties coming together to address issues with the voter rolls is lessened.

Read his full piece here and get back to us in the comments: is Haussamen correct? Is Duran’s report snarky and untrustworthy?

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Categories: 2012 Election, Gary Johnson, Health Care, NM Politics
17
Nov 2011

Publius Daily Digest

By

National

Steve Chapman today makes The Case Against Newt Gingrich:

Republican voters’ esteem for Newt Gingrich has been rising fast. At this rate it might someday equal, though not surpass, his regard for himself. Gingrich is not a person with an ego. He’s an ego with a person.

Just listen to his explanation of why it took him a while to catch on with voters: “Because I am much like Reagan and Margaret Thatcher, I’m such an unconventional political figure that you really need to design a unique campaign that fits the way I operate and what I’m trying to do.”

Other GOP candidates sound like they are merely campaigning for office. Gingrich, however, hurls verbal thunderbolts like Zeus, as the lights flicker and the earth shakes. Hopelessly in love with the sound of his own voice, he exhibits a stern, overbearing self-assurance that gives his pronouncements weight even when he is uttering nonsense.

See also Shikha Dalmia’s op-ed: Keep Newt undercover. Meanwhile, Ann Coulter makes the case FOR Mitt Romney:

There may be better ways to stop Obamacare than Romney, but, unfortunately, they’re not available right now. (And, by the way, where were you conservative purists when Republicans were nominating Waterboarding-Is-Torture-Jerry-Falwell-Is-an-Agent-of-Intolerance-My-Good-Friend-Teddy-Kennedy-Amnesty-for-Illegals John McCain-Feingold for president?)

Among Romney’s positives is the fact that he has a demonstrated ability to trick liberals into voting for him. He was elected governor of Massachusetts — one of the most liberal states in the union — by appealing to Democrats, independents and suburban women.

* * *

Instead of sitting on our thumbs, wishing Ronald Reagan were around, or chasing the latest mechanical rabbit flashed by the media, conservatives ought to start rallying around Romney as the only Republican who has a shot at beating Obama. We’ll attack him when he’s president.

It’s fun to be a purist, but let’s put that on hold until Obama and his abominable health care plan are gone, please.

Read her full column here.

Former Supreme Court Justice weighed in on “conservative” Judge Sutton’s decision upholding the constitutionality of ObamaCare:

When Judge Jeffrey Sutton of the Sixth U.S. Circuit Court of Appeals became the first Republican-appointed judge to uphold President Barack Obama’s health care overhaul, retired Supreme Court Justice John Paul Stevens took note. The opinion, Justice Stevens says, may be good on the law, but not so good for Judge Sutton’s own career.

* * *

[T]oday, with every Republican presidential candidate opposed to the health law, Judge Sutton’s June opinion may have killed his chances of elevation to the Supreme Court, Justice Stevens said. The irony, he added, is that Judge Sutton probably believes the health law is bad policy, even if it isn’t unconstitutional.

More here.

So, in case you were still wondering, the Congressional Budget Office director made it clear in testimony earlier this week that the so-called stimulus spending is indeed bad for long term growth:

Testifying before the Senate Budget Committee today, Congressional Budget Office director Douglas Elmendorf reiterated his initial assessment of President Obama’s $800 billion “stimulus” package — that while it may boost the country’s GDP in the short-term, in the long-term, the effect of such spending is a net negative on GDP growth.

Needless to say, Elmendorf’s assessment would also apply to the president’s most recent jobsstimulus package, which would spend $450 billion over the next year, making it larger — in annual terms — than the first stimulus package, which spent $800 billion over two years.

Go here for the video of testimony. Speaking of economics, John Mackey had a great op-ed yesterday about economic freedom:

Is the United States exceptional? Of course we are! Two hundred years ago we were one of the poorest countries in the world. We accounted for less than 1% of the world’s total GDP. Today our GDP is 23% of the world’s total and more than twice as large as the No. 2 country’s, China.

America became the wealthiest country because for most of our history we have followed the basic principles of economic freedom: property rights, freedom to trade internationally, minimal governmental regulation of business, sound money, relatively low taxes, the rule of law, entrepreneurship, freedom to fail, and voluntary exchange.

The success of economic freedom in increasing human prosperity, extending our life spans and improving the quality of our lives in countless ways is the most extraordinary global story of the past 200 years. Gross domestic product per capita has increased by a factor of 1,000% across the world and almost 2,000% in the U.S. during these last two centuries. In 1800, 85% of everyone alive lived on less than $1 per day (in 2000 dollars). Today only 17% do. If current long-term trend lines of economic growth continue, we will see abject poverty almost completely eradicated in the 21st century. Business is not a zero-sum game struggling over a fixed pie. Instead it grows and makes the total pie larger, creating value for all of its major stakeholders—customers, employees, suppliers, investors and communities.

So why is our economy barely growing and unemployment stuck at over 9%? I believe the answer is very simple: Economic freedom is declining in the U.S.

Check out Mackey’s interview with Reason on health care here. Which leads to our video of the day, involving Mackey’s long interview with Reason (click here to view the long version at Reason and here for the excerpt at YouTube):

New Mexico

If you haven’t yet, go check out Francisco d’Anconia’s latest post on Heinrich and Udall. Speaking of NM politicians that are a disgrace, check out the latest on Bill Richardson:

A federal grand jury is investigating potential “financial irregularities” related to former Gov. Bill Richardson’sunsuccessful 2008 presidential campaign, the Albuquerque Journal is reporting.

From today’s Journal article:

“The grand jury has been hearing testimony in secret since at least September, and a number of witnesses have been granted immunity, according to defense attorneys familiar with the general outlines of the investigation.

“… the Journal has learned that one area under scrutiny is whether money from campaign supporters was used to settle a threatened lawsuit against Richardson in the fall of 2007 by a woman who formerly worked in state government.

“Several people familiar with some aspects of the investigation have mentioned similarities to pending criminal charges against former presidential candidate John Edwards on allegations that his campaign supporters paid to shield the candidate from a public scandal.

“The legal issue is whether the money constituted a de facto campaign contribution made in furtherance of the candidate’s bid for federal office.”

According to the Journal, the investigation “involves several other matters tied together by potential election law violations, including possible coordination between so-called ‘soft money’ from political action committees and the campaign.”

More from Heath Haussamen here.

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Categories: 2012 Election, Economy, Health Care, NM Politics
15
Nov 2011

Publius Daily Digest

By

Courtesy of Reason’s Friday Funnies.

National

ObamaCare at SCOTUS continues to draw the most headlines. In today’s WSJ, David Rivkin and Lee Casey note:

The Supreme Court has agreed to decide whether ObamaCare is constitutional, granting certiorari in a case brought by 26 states shortly after that law was enacted in March of last year. In so doing, it will be ruling upon the very nature of our federal union.

The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.

Read their entire column here and the WSJ Editorial on point here. For more, SCOTUSBlog has a good roundup post here with links to the extensive coverage around the web.

Yesterday’s Political Diary by WSJ notes some interesting updates in the GOP Presidential Primary race:

Former House Speaker Newt Gingrich continues to surge in the polls. Last week a CBS poll had Herman Cain at 18%, with Mitt Romney and Mr. Gingrich tied at 15%. Even more impressive was the latest McClatchy-Marist poll, which had Mr. Romney at 23%, Mr. Gingrich at 19% and Mr. Cain at 17%. A little over a month ago, Mr. Gingrich was barely above 5% in any poll.

Is the former Georgia congressman simply the latest flavor of the month in the wake of the Herman Cain sexual-harassment allegations, or can he actually win? In an interview with me this weekend, he notes that “after every debate I keep rising in the polls.” He sees at least 70% of voters looking for an alternative to Mitt Romney as the GOP nominee. Mr. Gingrich says conservative voters “know I am the one who would be best to debate President Obama.”

One Gingrich strategy that seems to be paying off is to remind voters of his record as speaker. He says he was the one who was able to persuade then-President Clinton “to sign a balanced budget, welfare reform and tax cuts.” He says he inherited a 10-year forecast of $2.7 trillion in deficits, but that when he left Congress the forecast was “more than $2 trillion in surpluses” and “voters would love to see that happen again.”

Mr. Gingrich has clearly appeared presidential in the GOP debates, and he says focus groups almost always “pick me as the debate winner.” Mr. Gingrich’s campaign suffered some major setbacks earlier this year after he attacked the Paul Ryan’s budget plan and his staffers began to resign. Now Mr. Gingrich is where Michele Bachmann was in late summer and where Rick Perry sat four weeks ago. Whether he has staying power is another matter, but for now Mr. Gingrich is positioning himself to be Mitt Romney’s greatest rival. “I’m the anti-Washington-establishment candidate. That’s why so few in Washington are for me.”

* * *

Mitt Romney recorded yet another strong debate performance Saturday night in South Carolina, where the focus was on foreign policy. Nevertheless, two recent Republican presidential polls must have the former Massachusetts governor scratching his head.

A CBS News survey of likely Republican voters released Friday showed that support for Mr. Romney has slipped to 15%, which puts him even with former House Speaker Newt Gingrich and behind businessman Herman Cain, who was at 18%. A McClatchy-Marist poll of Republicans and Republican-leaning independents released the same day showed Mr. Romney at 23%, Mr. Gingrich at 19% and Mr. Cain at 17%.

Mr. Romney has typically garnered about 25% of Republican voters but was likely expecting a bump given the recent troubles of two top rivals. Mr. Cain has been fending off sexual harassment claims from four different women over the past two weeks. And Texas Gov. Rick Perry stumbled badly in a debate last week when he couldn’t remember one of the three cabinet agencies he’s vowed to eliminate should he win the presidency.

“Mitt Romney’s support fluctuates wildly between 23 and 25 [percent],” quipped George Will Sunday on ABC’s “This Week.” Mr. Will’s point is that alternatives to Mr. Romney — Michele Bachman, Mr. Perry, Mr. Cain — come and go, yet he seems to have a ceiling of support that he can’t penetrate. Polls have shown that Mr. Romney struggles especially among tea party supporters and evangelicals. Both groups continue to search for an alternative.

Mr. Gingrich looks to be the latest beneficiary of Romney dissatisfaction, and the former speaker may not have peaked. Mr. Cain’s lead in Iowa has shrunk and his overall numbers will likely drop going forward. The CBS poll showed that Mr. Cain’s support among Republican women has fallen to 15% from 28% since late October.

The good news for Mr. Romney is that 17% of voters are still undecided. The bad news is that the Iowa caucuses are just six weeks away.

In other candidate news, the latest on Herman Cain is his apparent total meltdown in a video-taped interview with the Milwaukee Journal-Sentinel. Go here for Guy Benson’s review of the experience, which includes a painful five-minute video of Cain’s answer on Libya. Benson’s conclusion sums the situation up nicely:

At Saturday’s debate, Cain frequently said he’d defer to the judgment of his top advisors and generals on foreign policy and national security matters.  Given his disastrous conversation today, it’s increasingly clear that Cain is using his stock, “ask the generals” response as a dodge to mask huge knowledge gaps.  Even if one remains a committed Cain loyalist, will average voters watch videos like these and conclude that Cain is prepared to be President of the United States?

Today’s video is a lengthy one, but worth your lunch or dinner break if you’re interested in the ObamaCare constitutionality debate. At the Federalist Society’s annual convention last weekend, former Solicitor General Paul Clement debated Professor Lawrence Tribe on this question (click here to view in YouTube):

New Mexico

Paul Gessing’s latest column at NMPolitics.net takes a good look at education proposals:

Very rarely do the left wingers who continuously criticize any attempt to reform New Mexico’s foundering education system say anything that surprises me. Conspiracies abound and the term “privatization” is thrown about like a slur.

But Emanuele Corso, in his recent attack piece “Skandera takes steps to undermine public education,” argued that Hanna Skandera and the Rio Grande Foundation are teaming up (along with a host of nefarious right-wingers nationwide) to “industrialize” education.

Corso has actually flipped reality upside down with this particular accusation. The reality is that America’s educational system has been based on an outdated “industrial” model for more than a century. And, while that worked just fine when large numbers of Americans went from “industrial” schools to working in factories, the current system is not designed to spur critical thought and independence.

For a history of the industrialization of American education, I highly recommend the works of John Taylor Gatto. A long-time educator, he has written extensively on the ways government-run school systems dumb our children down.

Check out the full column here. Also of note, the Rio Grande Foundation now has live county payroll information for all 33 counties in New Mexico on this page.

Stephan Helgesen, a retired foreign service officer and the current “honorary consul” for Germany in New Mexico authored a suggested re-write for the qualifications we should seek in our Commander in Chief:

We’ve had 26 lawyers, 12 generals, four small businessmen and one haberdasher who have served as president of these United States. Most were college graduates. One was unmarried. Twelve of them owned slaves during their lives and eight had slaves while they were president. Four presidents were killed while in office. Two were impeached.

Judging by the numbers, it might seem to the casual observer that America’s top job has been a bit top-heavy with lawyers and military men. That said, maybe we ought to re-write the qualifications for the job, especially in light of the precarious financial and geopolitical situation in which we find ourselves today.

Read the entire job description here.

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Categories: 2012 Election, Health Care, NM Politics
14
Nov 2011

Publius Daily Digest

By

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
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