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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: ,
13
Oct 2011

14th Amendment History

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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
06
Sep 2011

Publius Daily Digest

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National

In honor of Labor Day, Teamsters president Jimmy Hoffa demonstrated the unions’ version of the “new civility” in politics:

Hoffa riled up Fox News and the right wingMonday with a Labor Day speech in Detroit in which he called Republican members of Congress “sons of bitches” and said union workers are ready to “go to war” with the tea party next year and “take out” Republicans at the ballot box.

Hoffa claims his remarks were simply responding in kind to similar rhetoric from the GOP side.

Larry Sabato tells us today that The 2012 Election Will Come Down to Seven States:

Straw polls, real polls, debates, caucuses, primaries—that’s the public side of presidential campaigns 14 months before Election Day. But behind the scenes, strategists for President Obama and his major Republican opponents are already focused like a laser on the Electoral College.

* * *

Barring a Carter-like collapse, President Obama is assured of 175 electoral votes from 12 deep-blue states and the District of Columbia: California (55 electoral votes), Connecticut (7), Delaware (3), Hawaii (4), Illinois (20), Maryland (10), Massachusetts (11), New Jersey (14), New York (29), Rhode Island (4), Vermont (3), Washington state (12) and Washington, D.C. (3). Three more states are not quite as certain, but still likely Democratic: Maine (4), Minnesota (10) and Oregon (7). Even though Minnesota is competitive enough to vote Republican under the right set of conditions, it is the state with the longest Democratic presidential streak, dating to 1976.

Four other states usually vote Democratic for president, but they’re hardly a sure thing: Michigan (16), New Mexico (5), Pennsylvania (20) and Wisconsin (10). A low Hispanic vote in 2012 could flip New Mexico, as Al Gore carried it by only 366 votes in 2000 and a dedicated effort by George W. Bush flipped it in 2004. In Michigan, economic problems might cause voters to cool on Democrats. Wisconsin, narrowly Democratic in 2000 and 2004, is a cauldron of unpredictable countertrends. And although Pennsylvania has frustrated all GOP attempts to win it over since 1988, recent polls have shown weakness for Mr. Obama there. These 51 electoral votes will be GOP targets if conditions in the fall of 2012 approximate today’s.

Meanwhile, the Republicans have their own firewall. Almost any sentient GOP nominee will carry Alabama (9), Alaska (3), Arkansas (6), Idaho (4), Kansas (6), Kentucky (8), Louisiana (8), Mississippi (6), Montana (3), Nebraska (5), North Dakota (3), Oklahoma (7), South Carolina (9), South Dakota (3), Tennessee (11), Utah (6), West Virginia (5) and Wyoming (3). These 18 states have 105 electoral votes.

The Obama forces have bravely boasted that they can turn Arizona (11), Georgia (16) and Texas (38), mainly because of growing Latino voting power. But with the economy in the tank, electoral claims on these big three will likely go the way of John McCain’s early declaration in ’08 that California was within his grasp. Count another 65 red votes here.

Four years ago, even optimistic Democrats didn’t think they would pick up Indiana (11), North Carolina (15), or an electoral vote in Nebraska (which like Maine awards one vote per congressional district), yet all three went for Mr. Obama by small margins. In 2012, Indiana is likely to desert him, as is the one Cornhusker district. To keep North Carolina, the Democrats chose Charlotte for their national convention and will make a big play statewide. As of now, it looks tough for them. Thus Republicans are in the lead to win 26 more electors. Missouri was the sole squeaker that went for McCain; few believe it will be tight next year, so the GOP will likely have those 10 votes, too.

Republicans therefore are a lock or lead in 24 states for 206 electoral votes, and Democrats have or lead in 19 states for 247 electoral votes. That’s why seven super-swing states with 85 electors will determine which party gets to the magic number of 270 electoral votes: Colorado (9), Florida (29), Iowa (6), Nevada (6), New Hampshire (4), Ohio (18) and Virginia (13).

 

Today’s Political Diary has some Sarah Palin in 2012 speculation and analysis, first from Paul Gigot and second from Dorothy Rabinoqitz:

[O]n her Labor Day bus tour, public frustration with her will-she-or-won’t-she-be-a-candidate pose was palpable. “If she had done it right she could be popular here [in New Hampshire],” Kevin Smith, executive director of a conservative think tank, told AP. “But I don’t feel a lot of energy or enthusiasm here about a Palin run. Voters here in this state, who frankly have been taking this primary seriously since the beginning of the year, are indifferent.”

Ms. Palin may still decide to run, but if she does she will have a hard time winning even in Iowa. Her approval ratings have fallen sharply among Republicans, who doubt she can defeat President Obama. The polls show she fares worse against the president than nearly every other GOP candidate.

Ms. Palin might have been a contender. Had she finished her job as governor, devoted a year or two to learning what she didn’t know about the world and economics, built a network of support around the country, and developed a thicker skin about the media, she might now be a formidable candidate. Instead, she chose to be a media celebrity and to play hard-to-get as a candidate. The best thing she could do for her reputation at this point would be to declare once and for all that she isn’t running, and then work to support whoever is the GOP nominee.

* * *

It was show time on the campaign trail for Sarah Palin last weekend — a special sort, for the not-yet-if-ever-candidate, and it was inevitable. Here was Ms. Palin, in Indianola, Iowa, on Saturday holding forth at a tea party event in a 40-minute speech. They were there, she reminded her audience, to begin the restoration of the nation. She reminded them also that it was on this date that she had delivered her speech after being chosen as the vice presidential candidate on the McCain ticket.

The reference brought cheers, and one of the choruses of “Run Sarah run” that erupted intermittently. Still, no one remembering the infectious optimism and assurance of that acceptance address would have found much similarity between it and the tone of the not-yet-but-maybe candidate today. Saturday, as increasingly often in her public outings, the dominant note ran to embitterment. They were all there, she told the crowd, “to begin the restoration of the country we love.” They were the tea party members — people who had enlisted in the same heroic cause as had the Sons of Liberty.

Yet for their effort they had not only gone unappreciated but had been maligned. Ms. Palin’s voice took on a piercing intensity for this point in her speech. Not only Democrats but “good conservatives” had maligned tea party people like her audience — called them “terrorists and suicide bombers.” The message to her audience was clear: they were not only unsung national heroes but victimized ones.

Much was later made of Ms. Palin’s pointed observation in the speech that it wasn’t enough to defeat President Obama — the challenge was, “who and what would replace him.” This was, it took no seer to divine, a jab at the current Republican challengers and a hint that a more skillful challenger is needed — perhaps someone who had not yet entered the race. Who could that be?

But there was something more significant in this stump outing. It revealed a Sarah Palin still energetic, still capable of drawing impassioned supporters, but one also unsettled and defensive, aggrieved and struggling to extract a hard, clear message out of too many cloudy talking points. A far cry from the happy warrior who took the stage at that Republican Convention.

President Obama’s upcoming jobs speech to a joint session of Congress has garnered a lot of attention (mostly related to scheduling), and today’s WSJ discusses his Speech Impediment:

In everyday life, when you don’t have something to say, you avoid the stage. In our nation’s capital, by contrast, the world operates like the one Alice found behind the Looking Glass. That’s a world where you have to run as hard as you can just to stay still. Which helps explain why President Obama will this week be addressing a joint session of Congress that doesn’t really want to hear from him about a jobs plan that he doesn’t really have.

Expectations are high, the byproduct of a highly publicized back and forth with Republican Speaker John Boehner over the date of the president’s speech. If you’re a White House with a message, that’s a good thing. Unfortunately for President Obama, he doesn’t have one.

* * *

The truth is that there is practically nothing Mr. Obama could do to gin up better jobs numbers before next year’s election without massively increasing the deficit—and the Republicans won’t let him do that. Even with the word “stimulus” banished from his remarks this week, no one will be fooled by new calls to “invest” in roads and bridges and infrastructure. Or by the expected hodgepodge of other proposals from extending the payroll tax holiday to tax credits for new hires.

The irony is that the president has blown the one chance to do something of substance without looking weak. Back in July when he was negotiating with Speaker Boehner, the two had agreed on a grand bargain that would include real cuts in entitlements. The “give” on the Republican side was that the deal would address “revenues,” which to the president means raising taxes and to the speaker means relying on growth to bring in more money to the Treasury’s coffers.

For the president, that deal would have allowed him to do something serious about spending—in a highly public and bipartisan way. Even better for him, it might have split the opposition. For such a deal would likely have left Republicans bickering, with some arguing we should wait for a Republican president and others screaming “sellout.”

The president, however, got greedy, and killed the deal when he asked for more. That’s been his problem all along. Notwithstanding incessant calls to rise above politics, on issue after issue the president has proved himself incapable of matching his large rhetoric with equally large actions.

The Kelo v. New London case was certainly a low water mark for property rights, and continuing updates on its aftermath don’t provide any reason for comfort or silver linings. Check out Reason’s How Eminent Domain Transformed a Nice Neighborhood into a Dump for more. Speaking of Reason, there is now a Special Edition Reason Atlas Shrugged DVD available.

Senator Rand Paul recently spoke at The Cato Institute’s Cato University on a range of topics, excerpted in this video (click here to view in YouTube):

New Mexico

The special session in Santa Fe begins today:

“Redistricting, with a side of controversy.”

That’s how The Santa Fe New Mexican describes the special session of the Legislature that begins today.

Lawmakers are tasked with redrawing political boundaries for state legislative seats, the Public Regulation and Public Education commissions, and the state’s three seats in the U.S. House of Representatives based on the 2010 Census numbers. But Gov. Susana Martinez wants them to tackle several other issues as well – and there’s disagreement about whether that’s a good idea.

Heath Haussamen has the rest here.

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Categories: 2012 Election, Economy, National Politics, NM Politics, SCOTUS
25
Aug 2011

Publius Daily Digest

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National

Jeffrey Toobin has a lengthy piece up at the New Yorker asking the question Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan:

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

* * *

In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.

The full piece, though fairly long, is worth a read. Speaking of SCOTUS, a couple days ago Damon Root highlighted an upcoming case that has some interesting implications:

The New York Times’ Adam Liptak previews the upcoming Supreme Court case of Perry v. New Hampshire, which will consider the role of eyewitness testimony in the American legal system. As Liptak writes:

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest….

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

Read the whole story here. Read Radley Balko’s 2009 Reason report on the unreliability of eyewitness testimony here.

Over at CATO, Chris Edwards takes a closer look at Rick Perry’s Spending Record:

I awarded Mr. Perry grades of “B” in the last two Cato governor report cards. My analyses revealed a pretty good tax and spending record, but Perry certainly fell short of the reform-minded zeal shown by former “A” governor, Mark Sanford of South Carolina. Recent articles by Shikha Dalmia of Reason and Aman Batheja of the Fort Worth Star-Telegram suggest that Perry’s fiscal record is a mixed bag.

Let’s look at the numbers. Rick Perry came into office in December 2000, which was in the middle of Texas fiscal year 2001. Texas general fund spending has risen from $29 billion that first Perry year to $41 billion by fiscal 2011, which works out to an average annual increase of 3.5 percent. (Data from NASBO).

* * *

Thus, Mr. Perry has been Mr. Average on state spending. Over the past decade, per capita state general fund spending rose the same amount in Texas as the nation as a whole.

Note that total Texas state spending has risen substantially faster than just the general fund part of the Texas budget over the last decade (see Figure 16 in here). However, governors have more control over the general fund part of their budgets, so that is probably the best measure of a governors’ spending performance. (Still, Mr. Perry might want to explain to primary voters why the overall Texas budget has grown so quickly).

In yesterday’s Political Diary, Carl Kelm discussed a new poll showing a tightening of the GOP race:

A new poll out of Iowa shows the Republican contest tightening. The survey, conducted by PPP, puts newcomer Rick Perry in first place at 22%, with Mitt Romney at 19%, Michele Bachmann at 18% and Ron Paul at 16%. Given the margin of error, that amounts to a four-way tie.

In context, though, the poll is a win for Mr. Perry. The Texas governor has been mocked in the press as a George W. Bush clone with kooky views on evolution and global warming. But his message on job creation and economic growth appears to be resonating with the Republican base.

The poll is bad news for Ms. Bachmann and Mr. Romney. The Minnesota congresswoman, whose path to the nomination depends heavily on a victory in Iowa, has seen virtually no bounce from her Ames straw poll win earlier this month. To the contrary, her numbers have trended downwards. According to PPP, her favorables have gone from 53%-16% in June to 47%-35% now, leading the pollsters to conclude, “No one is sinking faster than Bachmann.” Mr. Perry’s numbers, meanwhile, have shot up to 56%-24%. And although his favorables will probably tighten up as voters get to know him better, the Texan begins his one-on-one with Ms. Bachmann in a superior position.

Mr. Romney finds himself in something of a dilemma. On one hand, Iowa has never been particularly important to his strategy, and he can absorb a loss there relatively easily. On the other hand, with Mr. Perry and Ms. Bachmann splitting the social conservatives and tea party affiliates, there’s an opportunity for Mr. Romney to cobble together a winning coalition of his own. And a win in Iowa, coupled with an expected victory in New Hampshire, could end the contest early.

Mr. Romney probably won’t go that route — his campaign has thus far shown a strong aversion to risk — but if he feels Mr. Perry is gaining too much momentum, it might make sense to opt for a three-way Iowa contest rather than face Mr. Perry one-on-one down the stretch.

George Will, one of our favorites, has some great insights in his latest column, Liberals’ Wisconsin Waterloo:

The residues of liberalism’s Wisconsin Woodstock — 1960s radicalism redux: operatic lamentations, theatrical demonstrations and electoral futilities — are words of plaintive defiance painted on sidewalks around the state capitol. “Solidarity forever” was perhaps painted by a graduate student forever at the University of Wisconsin. “Repubs steal elections” is an odd accusation from people who, seeking to overturn the 2010 elections, cheeredDemocratic lawmakers who fled to Illinois — a congenial refuge for labor-subservient Democrats — in order to paralyze the duly elected legislature. The authors of the sidewalk graffiti have at least read Jefferson: “The tree of liberty is watered by the blood of tyrants.” The tyrant is “$cott Walker American Fa$ci$t.”

Who, on a recent morning, was enjoying the view and the turn of events. From the governor’s mansion on the shore of sparkling Lake Mendota you can see on the far shore the famously liberal university, from which came many of those who protested his “budget repair” bill that already seems to have repaired many communities’ budgets, in addition to the state’s.

* * *

Progressives want to recall Walker next year. Republicans hope they try. Wisconsin seems weary of attempts to overturn elections, and surely Obama does not want his allies squandering political money and the public’s patience. Since 1960, no Democrat has been elected president without carrying Wisconsin.

Speaking of election year politics, Jonathan Adler asks a provocative question, Can the GOP be Anti-EPA and Pro-Environment:

Most of the GOP’s Presidential hopefuls have been savage in their criticism of the Environmental Protection Agency (EPA). Indeed, some have called for the agency to be dismantled.  Could this possibly be a good idea?  I’m all for criticizing the inefficiency and ineffectiveness of federal environmental regulation — I’ve certainly done my share — but the agency is not about to disappear, no matter who is elected President, nor would simply closing the agency down be a good idea.

The NYT’s latest “Room for Debate” poses the question: “What if Republicans Closed the EPA.” Here’s my contribution.

It’s worth following the “my contribution” link for more. Also on the policy front, check out Richard Epstein’s latest contribution How is Warren Buffett Like the Pope?

A successful and sustainable political order requires stable legal and economic policies that reward innovation, spur growth, and maximize the ability of rich and poor alike to enter into voluntary arrangements. Limited government, low rates of taxation, and strong property rights are the guiding principles.

Unfortunately, many spiritual and economic leaders are working overtime to push social policy in the exact opposite direction. At the top of the list are two prominent figures: Pope Benedict XVI and financier Warren Buffett.

* * *

Denouncing those who put ‘profits before people’ may stir the masses, but it is a wickedly deformed foundation for social policy. Profits, like losses, do not exist in the abstract. Corporations, as such, do not experience gains or losses. Those gains and losses are passed on to real people, like shareholders, consumers, workers, and suppliers. It is possible to imagine a world without profits. Yet the disappearance of profits means that investors will be unable to realize a return on either their capital or labor. Structure a system that puts people before profits, and both capital and labor will dry up. The scarcity of private investment capital will force the public sector to first raise and allocate capital and labor, though it has no idea how these resources should be deployed to help the people, writ large. A set of ill-conceived public investments will not provide useful goods and services for consumers (who are, after all, people), nor will it provide sustainable wages for workers (who are also people). Poor investment decisions will lead to a massive constriction in social output that harms all people equally.

The proper response to these difficulties is to treat profits as an accurate measure of the cost of capital, rewarded to those individuals and firms who supply some desirable mix of goods, services, and jobs that people, acting individually and not collectively, want for themselves. The genius of Adam Smith, whose musings on the invisible hand are too often derided, was to realize that private markets (supported, to be sure, by suitable public infrastructure) will do better than a command and control system in satisfying the individual’s wants and needs.

Reason.TV’s latest offering will make your blood boil if you have any respect for private property rights (click here to view in YouTube):

New Mexico

If you haven’t seen it yet, check out Ellis Wyatt’s post earlier this week explaining Why We Hate Lawyers. Errors of Enchantment, as always, has analysis worth checking out.

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Categories: 2012 Election, Economy, Health Care, National Politics, NM Politics, SCOTUS
03
Aug 2011

Supreme Court Round Up

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In lieu of a digest today, we invite you to check out this recent video post by the Federalist Society, a review of this past Supreme Court term (click here to view in YouTube):

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Categories: SCOTUS
12
Jul 2011

Publius Daily Digest

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A few quick hits for you today. Don’t forget you can let us know what you’d like to see here by emailing publiusnm-at-gmail-dot-com.

Political Ignorance and Caylee’s Law by Ilya Somin

Ron Paul is not running for re-election to Congress at The Facts

The Space Program was Our Biggest Bridge to Nowhere by Gene Healy

There’s Still No Evidence Eric Holder Knew About Operation Fast and Furious by Mike Riggs

Will Failure to Raise the Debt Ceiling Harm Our Credit Rating? by the Economic Liberty Blog

The Dog That Cornered Bin Laden at askmarion

And the Abq Journal’s recent editorial:

Judicial Panel Missed Chance To Build Trust

New Mexico’s judiciary has hit a bit of a rough patch.

In recent years not one but two chief District Court judges have resigned after arrests for drunken driving. So has a member of the appellate court bench.

The state Supreme Court has removed a Rio Arriba magistrate for willful misconduct and reprimanded a District Court judge in Albuquerque for sexual improprieties. A Doña Ana magistrate resigned after being accused of abusing power, improperly sentencing defendants and falling asleep on the bench.

And then there’s the state District Court judge recently indicted in an alleged judicial nomination pay-to-play scandal.

The point of this summary isn’t to run down the bench; these represent a fraction of the professional men and women who responsibly sit in judgment of others and accept the higher standards, both personally and professionally, to which they are held.

And, it should be noted that the Supreme Court has forcefully addressed several of the above issues and recently reiterated the higher standards to which judges should be held in their personal and professional lives.

Unfortunately, the most recent Judicial Nominating Commission missed an opportunity to advance the cause of credibility.

The commissions send a list of qualified candidates to the governor for appointment when an opening arises on the bench.

They have the ability to discuss the merits of a potential candidate in secret. Only their final vote must take place in public. Supporters of that policy proffer the tired argument always made to justify secret meetings: Openness and accountability inhibit candor.

But those same things also eliminate gossip, slander, character assassinations and back-room deals.

Commission members Justine Fox-Young, a former state representative, and Greg Fouratt, former U.S. attorney, recognize the importance transparency has in accountability and pushed unsuccessfully to open the discussions.

Fox-Young said, given all the controversies, “I don’t think we should discuss candidates in closed sessions.”

Fouratt summed it up this way: “I would say publicly what I would say privately.”

Their fellow commissioners disagreed. That’s unfortunate for the New Mexicans who deserve judges beyond reproach, and for the state’s judiciary as a whole, which strives for the same thing.

A good look at the Colbert SuperPAC FEC appearance by CATO Institute’s video (click here to view in YouTube):

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Categories: National Politics, NM Politics, SCOTUS
08
Jul 2011

Publius Daily Digest

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Courtesy of Reason’s Friday Funnies.

National

Some big news out in  the past 24 hours. First, the Supreme Court denied a stay of execution in a Texas case involving a Mexican foreign national. Texas doesn’t mess around with such things, so he was executed about an hour thereafter. For comprehensive coverage and related links, check out SCOTUSblog’s roundup. Lyle Denniston’s summary is helpful:

Refusing to defer to President Obama’s view of a threat to U.S. foreign relations, the Supreme Court voted 5-4 late Thursday afternoon to allow Texas to execute a Mexican national whose international treaty rights were violated in his prosecution for murder.  The Court majority dismissed as “free-ranging assertions” the President’s foreign policy arguments against the immediate execution of Humberto Leal Garcia, and added that the Obama Administrration had not presented “a persuasive legal claim.”  (The ruling and the dissent are here.)

This appeared to be a more serious rebuff of the President’s powers as the nation’s diplomat-in-chief than the one the Court had issued three years ago, in another Mexican national’s death penalty case, during the George W. Bush Administration.  Then, the Court said a treaty that President Bush had invoked — the Vienna Convention — was not binding law in the U.S.   This time, however, the Court majority went further, and simply would not take the President’s word on “foreign policy consequences” expressed directly to the Court, were Leal Garcia  to be put to death.

The four-page, unsigned opinion for the majority was skeptical throughout in its reaction to legal, diplomatic and legislature arguments that Obama Administration lawyers had laid before the Court, as direct representatives of the President.  The majority commented tartly that it doubted that “it is ever appropriate” to put off a lower court ruling simply because the President is presently working to change the law to give domestic effect to a global treaty obligation, but has not yet won enactment.

Read more here. In other big news, our economy is still in the tank. I know, that’s not exactly news to any of us living in it, but the latest jobs numbers frmo June are not encouraging, as the WSJ explains:

Nonfarm payrolls rose 18,000 last month, far fewer than expected, as small gains in the private sector were just enough to outweigh continued government-job losses, the Labor Department said Friday in its survey of employers. Payrolls data for the previous two months were revised down by a total 44,000 to show increases of only 25,000 jobs in May and 217,000 in April.

The jobless rate, which is obtained from a separate household survey, increased for the third straight month to 9.2% in June from 9.1% in May. It was the highest level since December 2010. There are 14.1 million Americans who would like to work but can’t get a job.

Today’s Political Diary has further discussion on Justice Kagan and ObamaCare, as well as the president’s polling numbers:

The Supreme Court may be in recess but questions continue over whether Justice Elena Kagan should recuse herself from challenges to ObamaCare that could reach the court as early as next term.

In a letter sent last week to House Judiciary Chairman Lamar Smith (R., Texas) and Ranking Member John Conyers (D., Mich.), 49 congressmen asked the committee to investigate further what role Justice Kagan played in health-care litigation challenges during her time as U.S. solicitor general. Republican presidential candidates Michele Bachmann and Ron Paul were among the signers.

The request came in the wake of new emails released after a FOIA request. They show that Ms. Kagan was looped in by her staff on plans for meetings and other issues related to the health-care legislation. Before her nomination, then-Deputy Solicitor General Neal Katyal wrote in one that “Elena would definitely like [the Office of the Solicitor General] to be involved in this set of issues.” Mr. Katyal suggested that he would plan to attend meetings himself and “bring Elena along as needed.”

Once she was nominated, Ms. Kagan maintained that Mr. Katyal had handled the matter and that she had not been involved in the litigation or even discussed it. In an email exchange with Justice Department spokesperson Tracy Schmaler on the question of her involvement, Ms. Kagan advised the spokesperson that “This needs to be coordinated. … [Y]ou should not say anything about this before talking to me.”

During her confirmation hearings, Ms. Kagan said she had never been asked her opinion or offered views on the legislation and that she did not have “any firsthand knowledge of the filings” of a Florida challenge. Does that mean she had second-hand knowledge? The Justice Department now says that Ms. Kagan had no “substantive” involvement in the issue.

The first Florida suit was filed in late March, and while Ms. Kagan knew at the time that she was under consideration for a Supreme Court vacancy, she wasn’t yet the nominee. Mr. Katyal became acting SG following her nomination, but the suggestion that he wouldn’t have consulted her on a case that he considered “of singular importance” when she ran the office strained the credulity of some members of Congress.

In their letter the 49 Republicans cite section 455 of the U.S. Code, which says that a justice should recuse himself “where he has served in government employment and in such capacity participated as counsel, adviser, or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”

In response to written questions during her confirmation, Ms. Kagan said that she would recuse herself from any cases in which she had played a substantial role. “If I gave advice about the government’s litigating position or the content of a filing, then I would recuse myself from the case,” she wrote. That included 25 of the 51 cases that the Supreme Court heard this term.

* * *

President Obama has crept into a tie with a generic Republican challenger for the first time in months, according to a new Rasmussen poll. But while that 44%-44% split doesn’t exactly make him a lock for re-election, he is looking competitive in a trio of critical swing states.

Florida, one of the biggest bellwethers of the bunch, throws its support to Mr. Obama by a single-digit margin, says PPP. The president would lead Michele Bachmann by 9%, Tim Pawlenty by 8% and Mitt Romney by 4%. More interesting is the fact that the president’s biggest ally could be Florida’s Republican governor, Rick Scott. Forty percent of voters say that Mr. Scott, who’s unpopular, makes them less likely to vote for the GOP presidential nominee.

In New Mexico, meanwhile, Mr. Obama has a more appreciable lead over his Republican rivals, with Ms. Bachmann and Mr. Pawlenty trailing by 15% and Mr. Romney by 7%. Ironically, New Mexico’s Republican governor, Susana Martinez, is quite strong in the polls and benefits from solid crossover support, but even she can’t make the GOP field competitive just yet.

Republicans do better in New Hampshire, where Mr. Romney might actually win a general election contest. A WMUR/UNH survey put him ahead of Mr. Obama by 4%, although that’s down from a 7% lead in April. Mr. Obama, meanwhile, would lead Ms. Bachmann by 6% and Mr. Pawlenty by 9%

Today’s video includes an interesting discussion regarding the implications of the debt negotiations:

New Mexico

Over at NMPolitics.net, Steve Pearce calls for responsible forest management:

Fires of unprecedented size and severity continue to plague the west. For residents of New Mexico, this has already been a difficult and expensive summer, marked by evacuations, forest closures, and even loss of property and homes. This year, 876 individual fires have burnt a total of 652,800 acres in New Mexico alone.

* * *

Last weekend, I spent time with constituents, local officials, and firefighters in Luna, which was recently evacuated due to fire. With lives and livelihoods on the line, it is important to ask the tough questions about how we got here. Healthy forest management has been prevented by a barrage of environmental lawsuits that advocate reckless policies and hamstring responsible and effective use of taxpayer dollars.

As a result, logging is banned, we lose thousands of jobs, and forests become heavily overgrown, creating ideal conditions for a quickly-spreading, uncontrollable fire. Thousands are left without work, and the forest becomes even more imperiled.

A recent article by Ted Williams, a self-proclaimed “environmental extremist,” said that groups like the Center for Biological Diversity and the WildEarth Guardians give “every environmentalist a bad name,” with their lawsuits and agendas that cripple forest management. He said that these have turned suing the government into an industry, and do so completely at the expense of wildlife.

On the judge scandal front, Judge Murpy’s attorney has filed motions seeking dismissal:

The lawyer representing Third Judicial District Judge Mike Murphy has filed several motions seeking the dismissal of bribery charges against his client.

The motions challenge the grand jury indictment of Murphy based on a number of procedural issues, alleging that the grand jury was given improper instructions, that prosecutors failed to present evidence that would have helped Murphy, that prosecutors presented irrelevant evidence, and that the target notice notifying Murphy that he might be indicted failed to properly notify him of the charges he was potentially facing.

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Categories: 2012 Election, Economy, National Politics, NM Politics, SCOTUS
30
Jun 2011

Publius Daily Digest

By

National

Yesterday’s ObamaCare ruling out of the Sixth Circuit is major news. To parse the legal analysis and implications, I often turn to the good professors over at the Volokh Conspiracy, and they are on fire about this one. First, Orin Kerr notes the importance of the opinion’s author, Judge Jeffrey Sutton:

Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today’s opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.

I think Judge Sutton’s separate opinion is excellent, but then it’s easy for me to say: Judge Sutton’s views closely match what I’ve been saying here and elsewhere for a long time, so maybe this just proves once again that brilliant people agree with me.

Read the rest for an excerpt of the opinion. Ilya Somin has several related posts. In his first, he notes some not-so-great implications of Sutton’s approach:

Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.

The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noncommercial activity nearly always has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships. The district court rulings in favor of the mandate all embraced some version of the “health care is special” argument [or at least the argument that not purchasing health insurance is “economic activity”] in order to avoid this slippery slope problem (albeit, unsuccessfully, in my view). By contrast, Martin and Sutton take us all the way to the bottom of the hill in one fell swoop.

In a later post, Somin discusses facial vs. as-applied challenges, a discussion taken up in a separate post by Jonathan Adler. Kerr and Somin also exchange posts on  the presumption of constitutionality legal issue. Certainly as the constitutionality of ObamaCare continues to percolate, these issued will be rehashed a lot.

UPDATE: New Volokh post by Randy Barnett that is helpful, and provides Eight Things to Know About Yesterday’s [Decision]. Definitely worth checking out.

Speaking of ObamaCare, Peter Suderman points out that it Continues to Make Consultants Richer:

The law’s backers have long argued that the law would become popular just as soon as the public started to see its benefits. But more than a year after its passage, they’re still struggling to convincingly explain just what those benefits are. 

There is, however, one class of people to whom they probably don’t have to explain anything. It’s one of the few classes that’s already doing quite well off of the law’s existence: health policy consultants and lawyers—especially those advising state governments on how exactly to implement the law.

Campaign finance issues also continue to gain a lot of attention — and not just because of Monday’s SCOTUS decision. As Damon Root explains, Stephen Colbert’s attempt to lampoon the Citizens United decision has resulted (unintentionally) in all manner of hilarity:

Politico reports that Comedy Central host Stephen Colbert’s attempt to form a political action committee in order to lampoon the Supreme Court’s Citizens United decision has put campaign finance activists in anything but a laughing mood. Here’s the story from Politico‘s Kenneth Vogel:

“I think Colbert is trying to dramatize problems in the campaign finance world in the way that he dramatizes other things,” said longtime campaign finance reform advocate Fred Wertheimer, a longtime advocate for stricter campaign finance rules who is president of Democracy 21. “But nevertheless, the proposals here would potentially open gaping disclosure loopholes in the campaign finance laws.”

Wertheimer is so concerned about what Colbert is doing, in fact, that Democracy 21 has joined with the Campaign Legal Center, another advocacy group, to petition the FEC to reject his request because it could result in the “radical evisceration” of campaign finance rules.

If Colbert gets his way before the FEC, it could blur the lines between political money and media to an unprecedented extent.

Oops!

Here’s another way to look at it. Colbert’s stunt has unintentionally revealed the ridiculous nature of campaign finance regulations. As Steve Simpson and Paul Sherman of the Institute for Justice recently observed in The Wall Street Journal:

Campaign-finance laws are so complicated that few can navigate them successfully and speak during elections—which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created “71 distinct entities” that “are subject to different rules for 33 different types of political speech.” The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean.” Legalese” doesn’t begin to describe this mess.

So what is someone who wants to speak during elections to do? If you’re Stephen Colbert, the answer is to instruct high-priced attorneys to plead your case with the FEC… How’s that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.

Bishop Edward Little explained yesterday in Christianity Today that Ayn Rand Led Me to Christ:

Rand challenged me to reject sloppy thinking, to apply reason meticulously, not least when dealing with culturally mandated assumptions. But that very commitment to reason gave me tools that led, much to my surprise, to a critique of Objectivism itself. The unseen Reality to which Plato pointed made sense not simply as an alternative way of seeing the world, but also under the test of reason.

Indeed, that very test points to God himself. The order and complexity of creation, the fact, as Lewis notes in Mere Christianity, that there seems to be a moral law with a claim upon human beings (“right and wrong as a clue to the meaning of the universe,” he calls it), all stand upon the foundation of the firm application of reason. Rigorous thought can set the stage for faith and demonstrate the reasonableness of the Christian claim that Jesus Christ is King of kings and Lord of lords. While reason cannot, unaided, present the fullness of Christian truth, it can support and undergird it.

Ann Coulter’s latest book is out and here’s a related video:

New Mexico

Errors of Enchantment points us to a new study on economic rankings:

Overall, New Mexico ranks 43rd which is consistent with the other rankings. New Mexico performs best (24th) on Quality of Life on the CNBC report and performs worst (46th) on Business Friendliness. Not surprisingly, Texas performs highly, ranking second to Virginia on the CNBC ranking).

In other news, Johnson and Romney are apparently the best GOP candidates in NM. For those GOP members who, you know, actually care about things like limited government (this, by the way, being the primary tenet of the GOP platform) are not the ones who support Romney. Just so you know.

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Categories: 2012 Election, Budget, Health Care, National Politics, NM Politics, SCOTUS
29
Jun 2011

Publius Daily Digest

By

 

Busy, busy week so for today just some quick hits:

President Obama and ObamaCare:

  1. Obama supporter slams him on transparency in Our Untransparent President.
  2. Amusing story of Obama’s trip to Iowa and his lunch stop including “mountains” of greasy food (don’t tell Michelle and her food police!).
  3. The Sixth Circuit upholds (.pdf) the individual mandate, as explained by the WSJ. 

Supreme Court Follow Up:

  1. Final Stat Pack for this term is now available.
  2. SCOTUSblog Evening Round Up from Monday’s big day of SCOTUS updates.
  3. SCOTUSblog’s Wednesday Round Up, including information about new cert grants, one of which relates to the Bullcoming v. New Mexico decision.

2012 GOP Contenders:

  1. According to Reason, Tim Pawlenty Goes Full Metal Hawk in Foreign Policy Speech.
  2. Peggy Noonan on The Enigma of Jon Huntsman.
  3. Required Reading for the Next Person Who Calls Newt Gingrich an “Intellectual”.
  4. Check out Politico’s 2012 Live page for more updates.

New Mexico:

  1. Ragnar’s update on Marty Chavez’ latest.
  2. Which reminds me, did you read Francisco’s previous update on Chavez lackey Greg Payne?
  3. If you are trying to follow the Las Conchas fire, check here for information.

Today’s video on IJ’s latest economic liberty case:

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Categories: 2012 Election, Economy, National Politics, NM Politics, SCOTUS
27
Jun 2011

Publius Daily Digest

By

 

National

The big news today comes out of the Supreme Court, which issued it’s final four opinions of this term. Check out Dagny’s post for info on the campaign finance decision. I’ll defer to Josh Blackman and SCOTUSblog for summaries and analysis of the other opinions.

Over the weekend, Jim DeMint had some strong words for any GOPers considering support for an increase in the debt ceiling:

If you support increasing the debt ceiling without first passing a balanced budget amendment and massive across-the-board spending cuts, you’re gone — destined to be swept out of Congress by a wave of voter anger.

“Based on what I can see around the country,” DeMint, R-S.C., said in an interview for the ABC News Subway Series, “not only are those individuals gone, but I would suspect the Republican Party would be set back many years.

The WSJ has more on the debt ceiling and Obama’s apparent attempt at Spending His Way to Austerity:

President Obama enters the debt-ceiling talks today when he meets with members of both parties, and in his Saturday weekly radio address he unveiled a new line of argument against significant spending cuts: “We can’t simply cut our way to prosperity.”

That’s a nifty rhetorical riff, a play off the old Ronald Reagan line that we can’t tax our way to prosperity. The argument is that if we cut too much spending on too many good things—like education, “clean energy” and “advanced manufacturing,” to name three examples highlighted by the President—the economy will suffer.

Too bad it won’t fly. It’s a truism that budget cuts alone will not guarantee faster economic growth, but at the current moment they will get us closer to it. With spending at 24% and debt held by the public at 70% of GDP—both modern records—the U.S. needs drastic spending cuts to head off a downward future spiral of tax increases and unaffordable interest payments. As Milton Friedman taught, spending is the real measure of government’s burden on the private economy, and reducing it leaves more resources for private actors to spend and invest.

It is also true that some government spending can be economically useful—to the extent that it enhances productivity more than it would have in the private economy. But the irony is that it is precisely the spending priorities that Mr. Obama mentions that will be crowded out because of his refusal to cooperate in reforming entitlements like Medicare and Social Security. By trying to protect all federal spending except defense, liberals are guaranteeing that many of their most cherished plans will be squeezed. They’re the ones who are spending us into austerity.

More excitement out of the Wisconsin Supreme Court, as the WSJ Law Blog explains:

Justice Ann Walsh Bradley told the Milwaukee Journal Sentinel over the weekend that [Justice] Prosser allegedly put her in a chokehold during a recent dispute. Click here to read the account.

“The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger,” she told the newspaper. “Those are the facts and you can try to spin those facts and try to make it sound like I ran up to him and threw my neck into his hands, but that’s only spin.”

Prosser released a statement denying the allegations, AP reports. “Once there’s a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false,” he said. “Until then, I will refrain from further public comment.”

Today’s Political Diary hits on Michele Bachmann, Tim Pawlenty, and Rick Perry:

The Des Moines Register is out with its first poll of the cycle, and it brings good tidings for Minnesota Congresswoman Michele Bachmann. Ms. Bachmann, who is officially announcing her presidential campaign today in her hometown of Waterloo, Iowa, has surged to second place in the state at 22%. Mitt Romney led with 23%. Ms. Bachmann, however, can boast that she has the clear lead in likeability. While Mr. Romney’s favorables were at 52%-38%, hers were at an impressive 65%-12%, with a net favorability of 53% that was tops in the field.

Ms. Bachmann’s jump in the polls makes her one of the frontrunners in August’s Ames Straw Poll (and thus a frontrunner in the anti-Romney sub-primary). And though the straw poll isn’t always predictive of the actual caucuses, winning it can be very helpful to an insurgent campaign. Then again, it isn’t yet clear that the Minnesotan can convert her newfound popularity into straw poll votes. AP writer Thomas Beaumont, the former chief political reporter for the Des Moines Register, recently pointed out that Ms. Bachmann’s campaign in the state has been notable for its lack of organization.

* * *

Tim Pawlenty is pushing his credentials as a judicial-nominator-in-chief. In a new ad, the former Minnesota governor makes nominations one of four key issues (along with health care, unions and government spending) and boasts that he appointed a “conservative Supreme Court” during his tenure.

In addition to making dozens of lower court appointments, Mr. Pawlenty appointed five of the state Supreme Court’s seven justices, including David Stras, a former clerk for U.S. Supreme Court Justice Clarence Thomas.

The campaign has bought about $50,000 in airtime on Fox News in Iowa during the last week of June. Mr. Pawlenty’s team hopes that his record on judicial appointments will inspire confidence in what he would do for the federal courts if elected president.

* * *

Mr. Perry is slated to be in Charleston, S.C., on Aug. 13 to address a conference of conservative bloggers organized by the website RedState.com and will head to New Hampshire on Oct. 28 to speak to Cornerstone Action, a conservative advocacy group.

For months, Mr. Perry professed to being uninterested in the presidency, but he and his closest political advisers have in the past few weeks been increasingly open about the shift in their mentality as polls continue to show that Republicans are largely unhappy with the current field.

Mr. Perry has not yet scheduled a visit to the nation’s first voting state of Iowa, but RealClearPolitics.com reported last month that his associates have been quietly reaching out to key figures there about important political dates this summer. Aides have indicated that Mr. Perry will likely make his decision about whether to get in the race sometime next month.

Aside from his obvious strengths as a tea party-fueled populist with an undeniable common touch and charisma on the stump, Mr. Perry could use the ties he has gained as the head of the Republican Governors Association and his more than a decade serving as governor in one of the nation’s largest states to build a formidable fundraising apparatus.

Mr. Perry could also fill a niche as the only top-tier Southerner in the race, though the question of whether the country is ready to elect a Texas governor who shares many of the same mannerisms of his predecessor in Austin — George W. Bush — remains an open one.

Today’s video in honor of today’s campaign finance ruling:

New Mexico

Heath Haussamen has an interesting read up declaring our shared responsibility for reducing fire risk:

The debate about whether responsibility lies with government, businesses or individuals is bogus. We all have a responsibility to our society. With infernos burning around us, that means doing everything in our power to reduce the risk of fire.

Moments after learning about an out-of-control fire that’s burning in Los Alamos County on Sunday evening, I happened to drive by the gas station near my house. Outside, a large, yellow sign proclaimed that the gas station was selling fireworks.

I whipped out my iPhone and tweeted this question: Shouldn’t responsible corporate neighbors choose to not sell fireworks this year?

After all, major fires have burned recently across the state, from Raton in the north to Las Cruces in the south, and from Luna in the west to Carlsbad in the east. Fires are currently burning near Santa Fe, Los Alamos and Socorro. Check out this map showing fires in the southwest since Jan. 1.

Former Republican congressional and PRC candidate C. Earl Greer, always the champion of individual responsibility, appropriately responded to my tweet with this:

“Shouldn’t responsible citizens choose not to purchase & use fireworks this year?”

During some back and forth, he shared a belief that if people didn’t buy fireworks, stores wouldn’t stock and sell them, and said, while many strive to make corporations “the evil empire,” it’s actually citizens who “have the power” to effect change.

It’s my view that both citizens and businesses have a responsibility to effect change in the society in which they live or operate. After all, the U.S. Supreme Court has long held that corporations have some of the rights given to citizens.

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Categories: 2012 Election, Economy, National Politics, NM Politics, SCOTUS, Uncategorized
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